4. CAPACITY TO MAKE A WILL (TESTAMENTARY CAPACITY)
4.1 The requirements for testamentary capacity
• Section 4 of the WA
• Textbook pp 55-60.
• Tregea v Godart
4.2 Mental capacity: madness, sickness and disease
• Spies NO v Smith
• *Essop v Mutsapha & Essop NNO
• *Katz v Katz
• Kirsten v Bailey
4.3 Does a suicide nature automatically vitiate mental capacity?
• Thiron v Die Meester
, 4.1 The requirements for testamentary capacity
• A will is a unilateral act, and in principle, every person who is capable of performing legal acts
should be capable of making wills.
• Testamentary capacity is governed by s 4 of the WA and is a prerequisite for making a will.
Section 4 of the Wills Act:
Testamentary capacity = ‘Ever person of the age of 16 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.’
• ‘At the time of making the will’ - does this mean at the time of giving instructions of drafting of the
will or at the time of the execution of the will? In Essop, the court held that ‘at the time of making
the will’ must be interpreted to mean at the time of executing the will. . This means that if you had
mental capacity at the time of instructing but became mentally ill when the will was executed, you
do not have the mental testamentary capacity required.
• Burden of proof - always rests on the person alleging that the deceased lacked the testamentary
capacity at the time of execution. We must assume that even if a person is declared insane by the
court, that they drafted the will when they were in a lucid interval.
Therefore, testamentary capacity includes the requirement of AGE and MENTAL CAPABILITIES
A. Age
• A testator must be 16 years or older to execute a valid will.
• The reason for the difference in ages for contractual and testamentary capacity is the fact that 3rd
parties’ rights and duties are affected in a contractual relationship with a minor, much more so
than if a minor makes a will.
B. Mental capabilities
• The testator, at the time of executing the will, should not be ‘mentally incapable of appreciating the
nature and effect of his act.’
• The only test required to prove testamentary capacity is whether or not the testator had all his or
her wits about him or her (was sane) when he or she executed the will.
• The courts have identified the following factors that need to be considered when determining
testamentary capacity:
1. General mental and physical condition
2. General intelligence, memory and capacity to understand the legal implications of their acts
3. General conduct
* Formal capacity (as provided for in s 4 of the WA) must be distinguished from the factors that influence
free expression of the testator’s will - coercion, undue influence and fraud (as recognized in common law).
4.1 The requirements for testamentary capacity
• Section 4 of the WA
• Textbook pp 55-60.
• Tregea v Godart
4.2 Mental capacity: madness, sickness and disease
• Spies NO v Smith
• *Essop v Mutsapha & Essop NNO
• *Katz v Katz
• Kirsten v Bailey
4.3 Does a suicide nature automatically vitiate mental capacity?
• Thiron v Die Meester
, 4.1 The requirements for testamentary capacity
• A will is a unilateral act, and in principle, every person who is capable of performing legal acts
should be capable of making wills.
• Testamentary capacity is governed by s 4 of the WA and is a prerequisite for making a will.
Section 4 of the Wills Act:
Testamentary capacity = ‘Ever person of the age of 16 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.’
• ‘At the time of making the will’ - does this mean at the time of giving instructions of drafting of the
will or at the time of the execution of the will? In Essop, the court held that ‘at the time of making
the will’ must be interpreted to mean at the time of executing the will. . This means that if you had
mental capacity at the time of instructing but became mentally ill when the will was executed, you
do not have the mental testamentary capacity required.
• Burden of proof - always rests on the person alleging that the deceased lacked the testamentary
capacity at the time of execution. We must assume that even if a person is declared insane by the
court, that they drafted the will when they were in a lucid interval.
Therefore, testamentary capacity includes the requirement of AGE and MENTAL CAPABILITIES
A. Age
• A testator must be 16 years or older to execute a valid will.
• The reason for the difference in ages for contractual and testamentary capacity is the fact that 3rd
parties’ rights and duties are affected in a contractual relationship with a minor, much more so
than if a minor makes a will.
B. Mental capabilities
• The testator, at the time of executing the will, should not be ‘mentally incapable of appreciating the
nature and effect of his act.’
• The only test required to prove testamentary capacity is whether or not the testator had all his or
her wits about him or her (was sane) when he or she executed the will.
• The courts have identified the following factors that need to be considered when determining
testamentary capacity:
1. General mental and physical condition
2. General intelligence, memory and capacity to understand the legal implications of their acts
3. General conduct
* Formal capacity (as provided for in s 4 of the WA) must be distinguished from the factors that influence
free expression of the testator’s will - coercion, undue influence and fraud (as recognized in common law).
