Академический Документы
Профессиональный Документы
Культура Документы
Introduction
-
The Wills Act 7 of 1953 regulates the formalities of drawing up a will and
stipulates who may make a will, who may sign a will as a witness, which
formalities have to be complied with in executing a valid will or in amending
an existing will, and in what circumstances certain persons are disqualified
from taking benefits under a will
Testamentary Capacity
Introduction
-
In order to make (execute) a valid will, the testator must have the necessary
testamentary capacity at the time of making the will
If this capacity is absent in any particular instance then the supposed will is
invalid ab initio
Factors that can play a role in the validity of a will are factors such as undue
influence, duress and mistake (error)
Burden of proof
-
Section 4:
Person bearing incapacity bears onus of proof
Question: What about certified mental incapacity? + (Lucidum
intervallum)
Change of onus? Or
Section 4?
Onus does not change
Geldenhuys v Borman
Harlow v Becker
Thirion
Test: Is the testator able to carry out an effective testamentary act
Can he identify assets to be disposed of after his death (nature)
Determine distribution of assets (effect)
Identify heirs (Tragea v Goddart) (effect)
Test
Law of Succession
Capacity to sign as a witness
Spies v Spies
-
Exceptions:
Law of Succession
Capacity to sign as a witness
Power of appointment
-
Ferreira v Smit
-
Law of Succession
Capacity to sign as a witness
Person
Section 1
Older than 14
Not incompetent to give evidence in court
Document
Section 2(1)(a)(iii)
Section 4A
2 competent witnesses
In the presence of the testator and each other
Not beneficiary exceptions
The function of the witness attestation is: To attest to the signature of the
testator (identity and free will)
Law of Succession
Capacity to sign as a witness