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A closer look at testamentary capacity: Who is eligible?

Courtney Goodwin

Trusts & Estates Department, Adriaans Attorneys

Wednesday, 15th May 2024

Despite the expression where there’s a WILL there’s a way, fewer than 15% of South Africans are said to have a Last Will and Testament upon passing[1]. These startling statistics can be attributed to various reasons, including a lack of knowledge and overall estate planning. Legislators could argue that testate succession serves as a gift to all citizens. However, in order to utilise this “gift” all requirements must be met, including  that of testamentary capacity.

Crucially, testamentary capacity is a pre-requisite for executing a Last Will[2]. Any person 16 years or older, to the exclusion of persons who are mentally unable to appreciate the nature and effects of their actions, is permitted to execute such a Last Will[3]. The principle dates back to Roman Times where property was bequeathed to minors. The eldest son was awarded the duty of support and care, thus supporting his testamentary capacity for the execution of a respective Will. Similarly, Modern times calls for age, intentionality, and a sound mind for the capacity to be awarded and the validity of a Will enforced.

Considering their exclusion, those who are mentally challenged[4] are automatically subjected to intestate succession. This is not affected by the appointment of a curator bonis[5], as the said curator’s capacity to manage another’s affairs does not include creating a Last Will on their behalf.

However, a potential escape is found in “Lucidum Intervallum” whereby if, for a moment, someone’s sanity is restored, they are eligible to carry out testamentary and contractual acts subject to their proved experience of a Lucidum Intervallum. The latter served true in the Pienaar v Pienaar Curator matter[6] whereby Judge President De Villiers re-affirmed a mental patient’s ability to act subject to their knowledge, understanding and appreciation for an action at the time of it being carried out. This becomes a question of fact, varying from case to case with the extent of the assistance sought by the patient is the benchmark.

Common Law further removed testamentary capacity from those under the influence of substances[7]. The grounds for lack of testamentary capacity have been expanded via legislation to include material error and coercion, nullifying all Wills and Testaments made under these circumstances.

If, for example, whilst attending a New Years Eve Party, Sophie consumed more drinks than planned and, in a state, she grabbed the receipt from a waitress frivolously noting the following on the back.

“I leave everything I own to my Sorority Sister, Jen.”

 Sophie signs and dates the receipt having two strangers do the same. Upon returning home Sophie is involved in a motor vehicle accident, instantly killing her and a friend. The distraught Jen arrives at the scene to Sophie’s lifeless body, only to remember the receipt. Her friend’s departure, promises an inheritance however given the circumstance and confines of the Law[8], does it?

 For the purpose of determining the validity of Sophie’s Last Will and Testament, it is evident the procedural requirements were met. That is, the wishes of the testatrix being reduced to writing with her signature alongside those of two competent witnesses. And lastly, the will included date and place whereby the Will was signed.

However, Sophie’s notes at the back of a tavern receipt do not warrant her serious intention for the creation of a valid Will. Neither did her inebriated state at the time suffice the necessary testamentary capacity to the extent that she understood and appreciated the nature and consequences of her actions. Consequently, Sophie’s failure to meet the substantive requirements for the purpose of creating a valid Will, results in Jen’s ineligibility to inherit.

Therefore, to avoid the aforesaid pitfalls. The aid of an Estate Specialist is encouraged when undertaking estate planning. This in turn, explores one’s eligibility whilst prioritising your last wishes within the confines of the law.


  1. The Law of Succession in South Africa, 3rd Edition Oxford, Juanita Jamneck, Christa Rautenbach, Mohamed Parker & Others.
  2. “Legal Position of Persons Incapable of Managing their Own Affairs”, Master`s Training Manuel, College of Justice, The Department of Justice & Constitutional Development, Republic of South Africa, 2016.
  3. Wills Act 7 of 1953
  4. Pienaar v Pienaar`s Curator 1930 OPD 171

[1] Master of the High Court of South Africa, 2022 Statistics Report

[2] General test for testamentary capacity: General mental & physical condition; general intelligence

memory, and capacity to understand legal implications of acts and general conduct.

[3] Section 4 of the Wills Act 7 of 1953

Smith v Strydom 1953 2 SA 799 T at 802

[4] Contributors include brain injuries, diseases, strokes or dementia and overall intellectual & mental       incapacity.

[5] Somone protecting the financial and proprietary interests of a mental patient.

[6] Pienaar v Pienaar’s Curator 1930 OPD 171

[7] Alcohol and drugs

[8] South African Law of Succession

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes.

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