Cls cc succession summary critical law studies cc c

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CLS cc Succession Summary Critical Law Studies cc (c) 14 TESTAMENTARY CAPACITY In terms of section 4: 16 years / older Mentally capable of appreciating the nature and effect of his act THE CAPACITY TO MAKE A WILL There are two particular aspects of testamentary capacity, namely the mental capabilities of the testator, and his or her animus testandi 1. The testator must have been sane. a. An insane person is incapable of making a will. However, such person is capable of making a will during a lucid interval b. The will of a prodigal is valid c. An intoxicated person is incapable of making a will while under such condition. The same applies to a person under the influence of drugs or under hypnosis. d. A deaf and dumb (mute) person was, at common law, incapable of making a will unless he or she could write, such a person are now able to make a will if she is mentally capable of appreciating the nature and effect of her testamentary act 2. The testator must have the free & serious intention to dispose of his property by will. According to Katz (2004) a person does not have mental capacity where they acted under undue influence, had a stroke or does not comply with the formalities.
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CLS cc Succession Summary Critical Law Studies cc (c) 15 FORMALITIES Requirements – (1) Written (2) Signed (3) Serious intention (4) testamentary capacity (5) comply with the required formalities Written does not include oral, any video / dvd or any other electronic format SECTION 2(1) (a) (i) Signed by the testator at the end of the will. (ii) In the presence of two or more competent witnesses who are present at the sometime. (iii) The same witnesses must sign and attest the will in the presence of one another and the testator. Witnesses cannot sign with a mark. (past it was signed at the bottom of the will, Liebenberg – valid even if signed at the top). (iv) Testator must sign all prescending pages of the will anywhere on the page in the presence of the same two witnesses. (v) The commissioner of oaths must append a certificate to the will. (when the will is signed using a mark or signed by an amanuensis) (i) – (iii) when the testator signs a one page will (iv) when a testator signs a will consisting of more than 2 pages (v) when the testator signs using a mark or someone signs on behalf of the testator A witness to a will must comply with three requirements: 1. Must be 14 years or older 2. Must be competent to give evidence in court 3. Must be able to write or sign their own name TWO QUESTIONS 1. What constitutes “signature” for the purpose of the Act? 2. Where does a will end? 1. The Signature Ex Parte Goldman and Kalmer Give the narrow meaning to the word “signature” -> two reasons: (1) because of the expense and inconvience of the special procedure of S2(1)(a)(v) (2) to maintain the validity of a genuine act of testation Signature : the initial letter of the testator’s name / \
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CLS cc Succession Summary Critical Law Studies cc (c) 16 Jackson + Singh Mellvill Yes No Held – signature includes initials - a mark = thumbprint or a cross 2. The End of the Will Question : Is it at the bottom of the page or end of the body of the will?
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