LAW OF SUCCESSION

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Jana Soobramoney

1
Learning Objectives

 LO1: Explain testamentary capacity.

 LO2: Identify the requirements for testamentary capacity.
 LO3: Discuss the requirements for testamentary capacity.
 LO4: Discuss the factors that affect free testamentary
expression.
 LO5: Discuss the delegation of testamentary capacity with
specific reference to the case of Braun v Blann & Botha 1984
(2) SA 850 (A)
 LO6: Identify the requirements for a person to be competent to
witness a will.
 LO7: Discuss the requirements for a person to be competent to
witness a will.
 SUCCESSION
SUCCESSION TAKES PLACE IN 3 WAYS
TESTAMENTARY INTESTATE CONTRACT
Valid Will NO VALID WILL ANC
(Successio ex (Successio ab (Successio ex
testamento) intestato) contractu /
pactum
successorium)

We are
here
INTRODUCTION TO TESTAMENTARY CAPACITY

 A will is the document in which a person-the testator,

expresses his or her wishes as to the disposal of his or her
assets after death.
 The Wills Act of 1953 sets out the formalities that must be
complied with in executing or amending a valid will.
 It also sets out who is disqualified from inheriting.
 The Law of Succession Amendment Act of 1992 contains
important amendments and additions to the Wills Act and
applies to T’s who died after 1992.
 INTRODUCTION TO TESTAMENTARY CAPACITY

 Testator – Man signing a will/Testatrix – Woman signing a will

 Testator must have testamentary capacity
 To execute a valid will the T must have testamentary capacity at the time of
executing the will.
 Without this the will is void ab initio.
 Only partially codified in the Wills Act – Therefore common law principles
may still apply
 Aside from capacity, any impairment of the T’s freedom to express his wishes
at the time of making the will may also result in the will being invalid
 Factors that can play a role
 Undue influence
 Duress
 Mistake/error
 INTRODUCTION TO TESTAMENTARY CAPACITY

FORMAL TESTAMENTARY CAPACITY

 Wills Act, Section 4:

 Section 4 Competency to make a will

 Every person of the age of sixteen years or more may make a will unless at the time
of making the will he is mentally incapable of appreciating the nature and effect of
his act, and the burden of proof that he was mentally incapable at that time shall rest
on the person alleging the same
INTRODUCTION TO TESTAMENTARY CAPACITY

FORMAL TESTAMENTARY CAPACITY FIRST REQUIREMENT

 FIRST REQUIREMENT: ABOVE THE AGE OF 16
 Wills Act Section 4-

 “Every person of the age of sixteen years or more may make a will...”
 At common law:
 girls younger than 12 and
 boys younger than 14 could not make a will,
 and minors above these ages could make a will with a guardian’s assistance.
INTRODUCTION TO TESTAMENTARY CAPACITY

FORMAL •Now the WA provides that

•First requirement: •Persons younger than 16
TESTAMENTARY both sexes can make a will
Amendment to previous cannot make a will at all,
CAPACITY FIRST without assistance if they
common law position even with assistance
REQUIREMENT are older than 16.

•Minor between 16 and 18

•The will is void ab initio if
•Minimum Age: 16- years old can make a will
the testator is below 16-
Irrespective of gender without the assistance of
Cannot be ratified
the parents/guardian
 INTRODUCTION TO TESTAMENTARY CAPACITY

 FORMAL TESTAMENTARY CAPACITY SECOND REQUIREMENT

 SECOND REQUIREMENT: MENTAL CAPACITY
 •Wills Act Section 4-Competency to make a will
 •“... unless at the time of making the will he is mentally incapable of appreciating the nature and effect
of his act...”
 •Understand the nature and effect of making a will
 •Deaf-mutes and prodigals are no longer limited as under the common law as they may possess mental
capacity
 INTRODUCTION TO TESTAMENTARY CAPACITY

 FORMAL TESTAMENTARY CAPACITY THIRD REQUIREMENT

 THIRD REQUIREMENT: MENTAL CAPACITY-BURDEN OF PROOF
 •Wills Act Section 4:

 Competency to make a will

 “... and the burden of proof that he was mentally incapable at that time shall rest on the person
alleging the same...”
 •Confirmation of common law
 •The onus of showing incapacity rests on the person making the allegation
INTRODUCTION TO TESTAMENTARY CAPACITY

 MENTAL INCAPACITY
 •There may be many causes to the mental incapacity:
 •Examples of mental incapacity:
 Mental illness,
 The consumption of alcohol (or other drugs)and
 Advanced age, illness or the consumption of medication (or a combination)
 •Assessed on the facts of each case
 •Test: is the person mentally capable of understanding the nature and
effect of his act as a consequence of the disturbance or impairment
 INTRODUCTION TO TESTAMENTARY CAPACITY

 MENTAL INCAPACITY
 •It has been held:
 a person who was mentally handicapped did have testamentary capacity (Spies v Smith*). – See
pages 39 – 40 – Consider the factors used*
 An insane delusion will disqualify a person from making a will if it influences the content of the will.
Page 40
 The consumption of alcohol (or drugs) – in any case the consumption of alcohol cannot in itself
invalidate juristic acts such as making a will – see Thirion v Die Meester – page 40 - 41
 INTRODUCTION TO TESTAMENTARY CAPACITY

MENTAL INCAPACITY
 Old age or illness in itself does not mean a person is incapable of making a will (Essop v
Mustapha and Essop*). – page 41
 •Essop confirmed that the time for establishing the competence of the T is the time of
making the will, not, for example, when instructions to draw a will were issued.
 Study the position as discussed in the Essop case and the Katz case – page 42 – 43
 The Katz case took the factors as discussed in the Essop case and formulated these factors in
greater detail.
 Refer to the Harlow case as well – page 42 - 43
 INTRODUCTION TO TESTAMENTARY CAPACITY

 FACTORS INFLUENCING FREE TESTAMENTARY EXPRESSION

 •Just because the testator had the formal capacity to make a will does not
guarantee the validity thereof.
 •The purpose of the will is to express the testator’s wishes as to his assets, if
he has no freedom of expression then the will is invalid
FACTORS INFLUENCING
TESTAMENTARY EXPRESSION

 Undue Influence
 Spies v Smith – gave meaning = aside from saying the T did not have testamentary capacity , it was also
contended that there was undue influence. See page 44
 Question = Does the will not in fact contain the wishes of the testator, but those of someone else
 Therefore to establish undue influence, the factors of each case must be considered.
 The mental state of the testator
 The testators ability to resist being influenced
 The relationship between the testator and the person exercising the alleged influence and
 The period between the execution of the will and the death of the testator.
 See page 45
 Further see cases Thirion v Die Meester and Katz v Katz
 Duress
 If a will is made as a result of coercion or duress, the will can be declared as invalid.
 As in the case of undue influence, it is not the wishes of the T that are expressed but those of another person.
 Burden of proof lies with the person who alleges that the will was made under duress.
 Easier to prove than undue influence.
Mistake
 Will is declared invalid only in certain circumstances.
 If the T lacks intention to make a will (animus testandi) because of some mistake, the will cannot be valid.
 A person who signs a will under the mistaken assumption / impression that the will is a contract does not possess
animus testandi and therefore the will is invalid.
 However an erroneous assumption of the fact by the T that influences a bequest does not normally influence the
validity of a will
 See page 46 for the example
 A mistake with regard to the legal consequences of a bequest will also not affect the validity of the bequest.
Delegation of Testamentary Power
 The testator cannot delegate his/her testamentary power.
 There are some exceptions
 Bequests for charitable purposes.
 Thus the trustee of a charitable trust, may be given wide discretion in identifying beneficiaries
or objectives within the broad charitable aims of the testator.
 Second exception is the conferment of a power of appointment in a will. The benefit,
however, is still received in terms of the will of the person conferring the appointment (the
original testator) and not in terms of the instrument through which the conferment is carried
out.
 On whom may a power of appointment be conferred?

The following could be an example of conferring a power of appointment on a fiduciary: I

bequeath my farm to my son A. Upon A’s death, after my death, the farm must go to the
person appointed by A in his will. A is therefore a fiduciary.

 Conferring power on a usufructary = I bequeath a lifelong usufruct on my farm to my

spouse A. Upon A’s death, the farm must go to the person appointed by A. Upon A’s death
the farm must go to the person appointed by A in her will. T therefore may resort to using
a testamentary trust until ownership vests in the person who A will appoint.
 A person such as a trustee who does not have a beneficial interest in the testator’s assets
could previously not have such power conferred on him or her.
 Invalid power of appointment

A power of appointment is invalid if the grantee of the power has been given unlimited discretion
whether he or she wants to appoint further beneficiaries or not.
 The invalidity depends on various factors e.g. is there a fiduciary etc.. Lets look to page 49 for
further discussion
 Exercising a power of appointment
General requirements for the valid exercise of a power of appointment:
(a) The grantee must have the intention of exercising the power of appointment.
(b) The power of appointment must be exercised in accordance with the provisions in the will.

Requirement (b) implies, among other things, that the power of appointment must be exercised in its entirety.

If the grantee of a power of appointment fails to exercise this power or exercises it invalidly, the effect of such
omission or invalid exercise depends on the provisions of the relevant will.
 It is possible, for example, that the will has made provision for substitutes who may benefit in such an eventuality.
 If the will contains no provisions in this regard, then the nature of the relevant power of appointment needs to be
considered.
 In the case of a ’specific’ power of appointment the persons designated (or the group of persons in the designated
class) will receive the benefit.
 In the case of a ’general’ power of appointment to someone with a beneficial interest in the bequest, such as a
fiduciary, the fiduciary’s intestate heirs will take the benefit.
 In all other cases the assets revert to the testator’s estate and devolve upon the testator’s intestate heirs.
 CAPACITY TO SIGN AS WITNESS

In the execution of a will the testator must sign the will in the presence of at least two competent witnesses who must
also in turn sign the will.
 The capacity to sign as a witness is known as testamenti factio relativa.
 Section I of the Wills Act defines a competent witness as follows:

a person of the age of fourteen years or over who at the time he witnesses a will is not incompetent to give evidence in
a court of law.

The witness must thus be competent in this way at the signing of the will.
 Although section 2(1)(a)(iii) states the requirement that the witnesses must sign and attest the will, an attestation clause
is not specifically required.
 But such an attestation clause may have evidential value.
 An attestation clause could look like this:
 We, A and B, hereby confirm the signature of the testator T and declare that we signed the will of T on 6 June 2015 in the
presence of one another and of T.

The aim of signing and attestation is to confirm the signature of the testator and the witnesses do not have to have
knowledge of the contents of the will.
 The testator must sign in the presence of the witnesses or must acknowledge the signature already made in their presence.
 It is not necessary for the testator to confirm the contents of the will.
 If the witnesses sign before the testator in time, then the will is invalid.
 The witnesses may sign anywhere on the last page of the will and may also sign by simply initialing.

The requirement that a witness need be only 14 years old and competent to give evidence in a court of law has already
been criticized as not being strict enough.
 Although a blind person can qualify as a witness in terms of the applicable section, according to Cronjé and others, he or
she will not be a competent witness as he or she will not be able to see the testator when the latter signs the will and
therefore cannot confirm the signature.