Abstract
Since the benefits of a will only materialise for a beneficiary after the testator’s death – when the testator can no longer clarify any doubts about his/her intentions – the law has traditionally imposed strict formalities for the valid execution of wills. One such requirement is that the testator must have had the mental capacity to appreciate the nature and consequences of making a will. However, the burden of proof lies with anyone asserting that the testator lacked this capacity, as the law presumes that anyone over the age of sixteen has the requisite capacity (in accordance with section 4 of the Wills Act 7 of 1953).
When there is doubt about a will’s validity, the master of the high court – or the court itself – will first assess whether the formal requirements for executing a will have been met. If the document fails to meet these requirements and does not qualify as a will, then any inquiry into the testator’s mental capacity becomes irrelevant. As stated in Samuels v Juries: “In the light of this finding, it is not necessary for me to deal with the first respondent’s further argument that the deceased lacked testamentary capacity” (2023 JOL 60384 (WCC) par 41).
The testator’s age must clearly meet the minimum legal requirement, and evidence of mental capacity at the time of execution is critical. While the law fixes the minimum age for making a will at sixteen, it does not prescribe any maximum age after which a person is automatically deemed incapable. This creates the potential for abuse, particularly involving elderly individuals who may be vulnerable and dependent on others. Nevertheless, advanced age alone does not justify doubts about capacity if prima facie a will has been properly executed. As confirmed in Genlloud v Van der Merwe NO: “Once it is clear that documents are a person’s Wills and Codicils, the person who attacks them on any ground must prove it. The law honours the deceased’s wishes, even if they result in envy among the next of kin” (2024 JOL 65688 (GJ) par 135).
In Ebeling v Koch (A 169/2024) 2025 ZAWCHC 59 (21 Feb 2025), the appellant – adopted daughter and sole surviving descendant of the testatrix – raised doubts about the testatrix’s mental capacity, alleging she suffered from advanced dementia at the time the will was allegedly executed. Suspicion deepened when it emerged that the sole beneficiary was the husband of one of the witnesses to that will. Further allegations included the sine causa depletion of nearly the entire bank account (over R1,5 million) of the perceived testatrix shortly after the will’s execution but more than eighteen months before the testatrix’s demise in 2015. The witness and her husband were allegedly involved as beneficiaries in these transactions, leaving a residue of only R1 200 in the bank account.
Regardless of whether the master accepted the prima facie will or the executor contested it before his death, the context in which the will was executed warrants careful examination. This remains necessary even if the remaining estate after the plundering of the bank account appeared too small to raise concern about unfounded delayed administration, given that more than nine years have passed since the testatrix’s death.
To date, at least three court cases have been initiated due to the questionable circumstances surrounding the 2013 will, and litigation concerning unjustified enrichment may still continue. Given the current backlog in South African courts – with some cases waiting up to seven years for a court date – it may be time for the legislature to consider a registration system for wills, similar to the one in the Netherlands. There, for the past century, it is enacted that a will must be registered in the national register for wills the first working day after execution. This enables early scrutiny of all surrounding circumstances and minimises uncertainties before the testator’s death, relieving courts from revisiting these issues years later.
Such a system could significantly reduce the strain on the judiciary. (The escalation in the number of unreported cases focussing on this aspect of the administration of an estate – some of which are discussed in this contribution – should also be noted.) This can be done without needing to rely solely on the recently introduced requirement for compulsory mediation before court enrolment. The lengthy delays currently experienced contradict the constitutional right to effective access to justice.
Even if Ebeling’s claim as the testatrix’s adopted daughter ultimately succeeds, the amount by which the respondents may have been enriched sine causa – especially given the acquisition of real estate in Mossel Bay funded with the misappropriated estate funds – could exceed the original R1,5 million, due to inflation and rising property values. Nevertheless, enrichment claims are limited to the lesser of the amount of unjustified enrichment or the claimant’s actual impoverishment, unless otherwise qualified.
