By Elize Kramer, Fiduciary Will Drafting Manager
In order to draft a legal Will, one has to be of sound mind and have the mental capacity to do so. In the event of a person who is no longer considered mentally capable, the last Will drafted before this diagnosis, will be considered the last valid Will. No new or amended Wills can be drafted and signed from that point onwards. It is therefore important to maintain and regularly review your Will while you are still mentally competent.
In terms of the Wills Act 7 of 1953, mental capacity to draft a Will in South Africa means you have to be 16 years of age and of sound mind (compos mentis). You need to understand what you are doing e,g drafting a Will, understand the nature and extent of your assets, recognise your beneficiaries who are inheriting in our Will, recognise that you have assets and make logical decisions.
Therefore, the duty as a witness to a Will, is that you can confirm that the person who's Will it is, was indeed of sound mind and not under any form of duress when signing his/her Will. The typical signs of any person lacking mental capacity includes memory loss or confusion, difficulty with communication, impulsive or unreasonable decisions and influence from others.
Worldwide, an increase in dementia diagnoses are observed. South Africa is no different. Those diagnosed with any of the different forms of dementia, become the most vulnerable in society as the disease gets progressively worse to the point when they can no longer to take care of themselves or make any decisions pertaining to their care. These members of society often fall victim to family members and people close to them, when they attempt to get sight of the last Will or get them to draft a new Will when they are no longer mentally capable. The validity of a Will may be disputed when a person suffering from dementia drafts a Will and it could be challenged if the drafting was done when the person had a "lucid" moment. If mental capacity is questioned, a medical evaluation may be required, the Court may appoint a curator or administrator, may be required which might ultimately lead to the appointment of a curator or administrator by the court.
In the case of Gildenhuys v Gildenhuys [2010] ZAWCHC 21, the testatrix was 77 years old when she signed her Will, which included the bequest of her farm to a non-family member. However, medical evidence presented at the trial showed that she was suffering from senile dementia and lacked insight and judgment to make rational decisions. Testimonials from close friends of the family also suggested that she was not capable of making a valid will. The court ultimately held that the testatrix lacked testamentary capacity when she signed her Will and thus, the document was deemed invalid.
This case is a good example of the consequences of not obtaining sound advice and how this affects the administration of the estate, considering the delays and costs associated with obtaining legal advice after death.
Key take-away
Mental capacity is crucial for a valid Will. Understand the impact on your assets, beneficiaries, and decision
FNB Fiduciary (Pty) Limited Registration Number 1986/003488/07- A subsidiary within the FirstRand Group of Companies. An Authorised Financial Services Provider.
