Section 2(1)(a) of the Wills Act provides the formal requirements for the execution of a valid will. These requirements can be summarised as follows:
- The will must be signed at the end thereof by the testator.
- The signature of the testator must be made in the presence of two or more competent witnesses who are present at the same time.
- The will must be signed by each witness in the presence of the other witnesses and the testator.
- If the will consists of more than one page, each page other than the page on which it ends must also be signed by the testator anywhere on the page. However in practice the testator and witnesses are generally asked to sign every page at the end thereof.
A will which is concluded in the normal course of events is presumed to be valid until the contrary is proven. Therefore, if all the formal requirements for a will have been met, the person questioning the validity must prove that it is not valid. The validity of a will can however be affected by undue influence, duress, mistake, old age, illness or mental incapacity. In this article we will focus on old age, illness or mental incapacity as possible grounds for declaring a will invalid.
Section 4 of the Wills Act provides the following in connection with the required competency of a testator to make a will:
“Every 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 the effect of this act and the burden of proof that he was mentally incapable at the time shall rest on the person alleging same.”
Accordingly, in order to prove that a testator was not competent to make a will due to old age or illness it must be proven that such a testator was mentally incapable of executing a will. In order to show that the testator did not have the required mental capacity, our courts may take account of the following factors amongst others:
- The testator did not understand the nature of the testamentary act and its consequences.
- The testator could not remember what he possessed, and thus did not know what he was disposing of.
- The testator could not differentiate between people who would ordinarily have a claim upon his estate and others.
- The testator suffered from a disorder of the mind that may have poisoned his affections and affected his sense of right and wrong or prevented the exercise of his natural faculties.
- The testator, if of a sound mind, would not have disposed of his property in the way that he did.
A person wishing to question the validity of a will in court must be able to provide evidence to prove on a balance of probabilities that the testator, at the time that the will was executed, did not possess sufficient capacity and did not have a sufficiently sound mind and memory for him to understand and appreciate the nature of his testamentary actions. To do this, evidence must be provided by persons close to the testator who can testify about the testator’s condition at the time of the execution of the will and the testator’s condition in the time leading up to the execution of the will as well as thereafter.
Additionally, the evidence of an expert witness, such as a psychiatrist or a medical doctor who can attest that the testator did not or could not have had the requisite mental faculties as stated above at the time that the will was executed will be of great importance.
In general, it should be noted that our law attaches great value to the freedom of a testator to determine in what way he wishes to dispose of his assets after his death and our courts will not lightly set aside a will unless it is clear from the evidence that the will is invalid. Mrs Ambrosia’s children will accordingly have to provide the necessary evidence to show that Mrs Ambrosia was not of a sound mind when she amended her will to leave her entire estate to her friend, Mrs Nightingale.