0s/08/207s

Additional Case Law

Lipchick v The Master
Scott v The Master

SYLLABUS THEME 2
The Law of Testate Succession

Introduction and
Testamentary Capacity

Terminol
Validitv of a will:
Wills Act 7 of 1953

t.

Person (Chapter 3)
Person

z. Document

Law of Succession
Amendment Act 43

of t992

Testamentary
ca pacity

Document
(Chapter 4)

' Formalities

Testator (self) - Age

Testator (others) Menta

All wills executed on

or after 1 January
1954

Testamentary Capacity

Testamentarv

Section 4

Section 4

Every person of the age of sixteen 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 same

Ca
Age of 16

Mental capacity

study

lnt

1r Idamitary

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lr.r."-"
lr"r."-"ntary capacity
Aqe of 16
Before:
Absol ute
inca pacity

After:
Absol ute

Mental
Caoacitv
Appreciate
nature of act
Appreciate
effect of act

Answer each of the following

questions with regard to the
validity of the Will:

capacity (no
assistance

Will executed whilst the testator is

under the influence of alcohol

Will executed whilst the testator is

under the influence of drugs

a. Valid
a. Invalid
c. Depends if the testator
understood the act and
the consequences
thereof

a. Valid
s. Invalid
c. Depends if the
testator understood
the act and

s3% 31vo

consequences

thereof

Will executed whilst the testator is

under the influence of drugs and
alcohol
]37.

Will executed by a 87 Year old

blind person under the influence
of pain-killers

33v

n. Valid

e. Valid
e. Invalid
c. Depends if the testator
understood the act and
consequences thereof

e. Invalid
c. Depends if the
testator understood
the act and
consequences
thereof

33%

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Will executed by a Prodigal

without the assistance of his
curator

Will executed by a person with

mental illness
n. Valid
e. Invalid
c. Depends if the
testator understood
the act and
consequences
thereof

1)./"

!3%

Will executed by a 92 year old

with history of episodes of
dementia

n, Valid
e. Invalid
c. Depends if the
testator understood
the act and
consequences
thereof

Testamentary CaP
Not

n. Valid
e. Invalid
c. Depends if the
testator understood
the act and
conseq uences
thereof

contractual
capacity
Not

accountability

To be determined on case-to-case basis

'oi

Testamenta
Mental Capacity

Appreciate
nature of act

Mental CapacitY

Ca
Appreciate
effect of act

To be determined on case-to-case basis

To be determined on case-to-case basis

..rThe mere fact that capabilities are reduced,

does not cause testamentary incapacity
.!Understand that document is a will and what
the consequences are
ni.e. disposing property after one's death and

nAbility to distinguish between potential heirs

.:.Decision as to their proportionate claims

appointing executor to oversee the proces*,""

oslos/20Ls

Testamentary

Testamentary CaPaci
Mental Capacity

Ca
Narrow
approach wtt

Specific cases

tnc
To be determined on case-to-case basis

.l

Prodigal

.! Influence of alcohol, drugs, pain-killers or

other substances

.l Old age
.i Illness
.l Mentally retarded

:[::;;"'

Testamentary Capacity
When do we
apply test to

.:. Spies

vs Smith

. Subnormal intelligence and epileptic ffi

.l Geldenhuys vs Borman
. Incapable of managing affairs ffi
.l Essop vs Mustapha
. old ase EA'
.:. Harlow vs Becker
. Very ill 3

Testamentary CaPacitY
Essop vs

Mustapha

Harlow vs
Becker

determine
testa tor's

competence?
Time of making will is relevant
But: time of instruction is also significant
Now: no distinction between instruction,
drafting, execution and signature

-l

Testamentarv

Testamentary Capac

Ca

Son wants Will#3

declared invalid, on the
basis that the testator
did not have

will #2

.
.
.

Son was executor

"Farms" to heirs
Farm workers R25 000

Scott vs the
Master

testa ment

will #3

. Attorney was executor

. "Farms" to be sold .

proceeds to old aqe

home
Farm workers R50 000

Court:
Effect of Will#3:
Son disinherited

.l

Burden of proof: Person alleging incapacity

must prove it (Section 4)
.!.Factual question based on evidence
.:. Balance of probabilities

osloslzols

Testamentary Ca

TestamentarY CaPeslql

Scott vs the

Scott vs the
Master

Court:
i. tfre test to be applied in deciding the question
if the testator was e!-t!g gme-of sufficient

I
I
I
_

Testamentary

:if":,il]1'1

,**

")

it"tt"-.ntarY

Ca
I Scott vs

intelligence, possessing a sufficiently sound

mind ind memory for her to glld-reld and
aooreciate the nature of the testamentary
act in all different bearings
(Kirsten vs Bailey & Naidoo vs trovvlt!rs!]

the

caPa

] gurden of proof

i Master

Court:

.:.There is no evidence adduced by the applicants

that, at the time the will was made, the
deceased was incaPable of making a
testamentary disposition of his property nor
could he appreciate the consequences thereof
.lWill#3 is valid

Testamentary Ca
Burden of proof
.:.Onus does not change
. Geldenhuys vs Borman
. Harlow vs Becker

Thirion

Section 4:

*FEEoi attesing incapacity bears onus of proof

.!Question: what about certified mental
incapacity? + (Lucidum intervallum)
. Change of onus? or
. Section 4?

Testamentary

Ca

Burden of Proof
.:.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)

ti

os/08/2ors

actors

Factors Influencing

uencrng
Expression

T
Test
Ask: Was there a displacement of volition (own
will)? If yes: will is invalid, if no: the will is valid

i.e.: Does the will contain the wishes of the

testator or someone else?

Ben changed his will to benefit only his

sister's children, because their father
is not around and she begged him to
pity them

n. Valid
e. Invalid
c. Depends if the sister's
influence caused a
displacement of Ben's
wishes

Answer each of the following

questions with regard to the
validity of Ben's Will:

Ben is a successful lawyer, His uncle

paid for his studies and asked Ben to
think of him in his will, since Ben would
not have been there without his help.
Ben beoueaths monev to his uncle
A.

Valid

Invalid
c. Depends if the uncle's
influence caused a
displacement of Ben's
wishes
B,

3!% f3%

33yo

33% 3396

3396

Dr Kate treated Ben's late father for free.

She showers Ben with condolences upon
his dad's passing. Ben feels guilty and
ueaths R15000 to dr Kate.

e. Valid
e. Invalid
c. Depends if dr Kate's
influence caused a
displacement of Ben's
wishes

33% 33%

33%

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Ben's mother rePeter. Ben

changes his Will in favour of Peter;
after Peter told him that he would use
the bequest to take good care of his
mother

"

Factors Influencing
Testa menta ry Expression
Spies vs Smith

e. Valid
s. Invalid
c. Depends if Peter's
influence caused a
displacement
of Ben's
)
wishes

Testator was
"mentally retarded"
Uncle was curator

, . bonis
Testator made will

Spies vs Smith

Factors

.
.

Court:

Testator was

"mentally retardedl'
Uncle was curator
bonis

Testator made will

benefitlng uncle's
children

execute will?

2. Was testator unduly

influenced by uncle?

Factors Influencing
rv Expression

Testa menta

benefiting uncle's
children

Factors Influencing
Testamentary Expression
.

Court:
Two grounds:
1. Was testator
mentally capable to

Even though mentally

retarded, he could
appreciate nature and

. Testator's state of mlnd

. Ability to withstand influence

effect of act
Flatter, professions of
love followed by direct
request is not
necessarily undue

.
.

Relationship between testator and person

attempting to influence
Time period between execution of will death

i nfluence
Test remains: was

there a disposition of
volition?

Delegation of Testamentary
Power
General Rule!

Testator MUST
exercise testamentary
power himself
May not delegate it to
someone else to do it
on his behalf

Exceotions!
Bequest for charitable

pu rposes

Power of

Delegation of Testamentary
lPower
Bequest for charitable
purposes (ad pias causa

or ed

I bequeath my entire estate in trust to my

trustees, to be used as bursaries to benefit
students at TUKS.

*The trustee has power to appoint specific

beneficiaries
.:.Within the parameters of the trust

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Delegation of Testamentary
Power
Power of Apoointment

Power of Appointment

*Under Roman Law, power of appointment only by

I bequeath the residue in trust to my trustees, with

way of fideicommissum

the widest discretion, to be used for the benefit of

all or some of my children

*Testator appointed Fiduciary who had power to

appoint fideicommissaries

*(this also applied to usufruct)

.tThe trustee has power to appoint specific income

- also extended to
power of appointment granted to trustee
But: Braun v Blann and Botha

or capital beneficiaries
.lFrom a selected class / group

Delegation of Testamentary
Power
i

Delegation of Testamentary
Power
Court:

Braun vs Blann &

sotha

ii
I

.:.Testatrix created a testamentary trust

.!Bequeathed residue of estate to testamentary

Court:
DTestamentary trust
and power of
appointment in
respect of children

trust
.!Administrators had widest discretion to appoint
income or capital beneficiaries from children
.:.Administrators had further power to create a new
trust (and appoint trustees and beneficiaries) for
the benefit of grandchildren / great grandchildren

is valid

Delegation of Testamentary
Power

trTestamentary trust
and power of
appointment in
respect of
grandchildren
amounts to

delegation of
testamentary
power

Delegation of Testamentary
Power

Exercising a power of appointment

.llntention to exercise power of appointment

.tlmmovable property - fi deicommissum

.tIn accordance with provisions of will

.:.Grandson = fiduciary and lawful descendants =

fideicommissary heirs
.!Adopted children
+Exceeded his power of appointment

.l(Ferreira v Smit)
.lAppointment must be exercised in its entirety!

47

.3

l
I

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Delegation of Testamentary

Delegation of Testamentary
Power

Legal position of
grantee where power
of appointment =
invalid

ilnvalid Power of
lAppointment
trTestator's intention

trIf

(in will)

Fiduciary will receive

no intention:

DNature of

Asset to estate upon

bequest

termination of interest -

OLegal position

of grantee

to sisn as witness

Capacity to sign as witness

Competent
Witness:
Wills Act 7 of 1953

t.

Person
Section

Person

2. Document

2 competent

Older than 14
Not incompetent to
give evldence in

of L992

cou

All wills executed on

or a'1ftel 1 January

witnesses
In the presence of
the testator and each

rt

other
Not beneficiary

Blind person?

1954

witness

The function of the

witness' attestation
ts:

To attest to the signature of the testator

(Identity and free will)

Document
Section 2(1)(aXiii)

Section 4A

Law of Succession
Amendment Act 43

ity to sign as

ntestate

n as witness

Ca

Witness may not receive

benefit,

unless:

Benefit = also

executor
etc

trustee

j The court directs that he is entitled to

IloRbenefit as there was no undue influence;
I Witn"rt is entitled to intestate benefit
share) oR
| {tirit"o to intestate
, There are at least 2 other competent
I witnesses

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A witness is required to read the Will

before attesting (signing as witness

A witness is required to sign each

A witness may never be a beneficiary

page of the Will

in the Will which he is a

n. True
a. False

n. True
e. False

5M

50%

A court may declare that a witness is

entitled to be a beneficiary in a Will

which he attested
R. True
a. False

to receive a
which
he
attested,
Will
benefit from a
have
been
would
he
to the extent that
so%
an intestate heir
A witness shall be entitled

10

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As a general rule, the executor

appointed in a Will may not sign that

Will as a witness
a. True
e. False

For Monday 3 August 2015:

Draft and execute (sign)

.
.

fictitious Will (fabricating your

own facts and beneficiaries).
The Will must consist of 2
pages.

11