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Study Unit 3.2_Testamentary Capacity (2).pptx - The Law of...

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The Law of TestateSuccessionStudy Unit 3.2: Testamentary Capacity
Formal Testamentary CapacityRequired for a will to be validJust because you haveanimus testandidoes not mean that you have testamentary capacity to make a wills4 of the Wills Actstates:“Every person ofthe age 16 or moremay make a will unless at the time of making the will he ismentallyincapable of appreciating the nature and effect of his act…”The Master of the High Court will accept that the will received was executed with the necessary testamentarycapacity.The issue of a testator’s testamentary capacity will only arise if someone approaches the court with anapplication contesting the validity of the will based of a testators lack of testamentary capacity. Why? Rest of s4….“… and theburden of proofthat he was mentally incapable at that timeshall rest on the person allegingthe same.”Masters office is therefore, only concerned with whether the formality requirements have been met. Does notcheck for testamentary capacity.
2 aspects:1. AgePerson under 16 years of age is absolutely disabled to make a will, even if assisted by parentsRatification, by a court, of a will made by a 15 year old after they turn 16 isnotpossiblePerson of age 16 can make a will without the assistance of their parent/guardian2.Mental capacity (must be mentally capable)T must be mentally capable of understanding the nature and effect of their act.When? At what stage must they be mentally capable?At the time of making of the will – meaning time of execution i.e. time of signing by the TBecause of the explicit wording in s4, there is arebuttable presumptionthat a will was made/executed by acompetent T i.e. a T who understood the nature and effect of their actions (when making the will).Therefore: person must challenge validity by alleging lack of testamentary capacity and must prove such onabalance of probabilities
Factors that can give rise to mental incapacityMental illnessConsumption of alcohol/other drugsAdvanced age, illness, medication or a combination of these factors.

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Term
Fall
Professor
S van wyk
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