Will you be sane?
Alzheimer's disease, addictions, old age and the frivolity of youth.
These could all be factors that could influence the mental wholesomeness of the person making a will/testament.
Throughout the ages, the sanity of the person leaving a substantial estate was the theme of soap operas and real-life spectacles. A person's mental capacity when drafting (compiling) and executing (signing) a will might not be the only aspect that could render a will invalid...
What does the law say?
Alicia Cupido-Woodman, an associate at Cluver Markotter explains.
"A person with some cognitive impairment may be capable of making a will at some times, but not of sound mind at other times. The general presumption is that a person who made a will was of sound mind and understood the consequences when signing the document at the time (of making the will)."
In the early stages of Alzheimer's disease, it is quite common to lack mental capacity from one day to the next.
"On principle, Alzheimer's patients can validly execute a will when they can understand its nature and effect. If the testator's mental capacity is in contention, a prior Alzheimer's diagnosis may indicate a lack of mental capacity. Yet, a person challenging a will based on the testator's cognitive impairment must prove that the testator lacked capacity at the time of executing the will," she explains.
If there is a doubt about whether a person is 'sane' enough to draft and execute their will, a psychiatrist should access the testator/testatrix, recommends Riana Lemmer, an attorney and estate specialist of Riana Lemmer and Schonees.
"I would ask the psychiatrist to make their notes directly on the will to confirm that the testator knew what they were doing."
It is tough to prove that a person was not in a healthy mental state of mind unless with prior medical diagnoses. Again, in the case of addictions or mental health problems, it makes sense to ask for the assistance of a psychiatrist when drafting a will.
Medical evidence such as psychiatrist reports, witness statements and depositions can be used in support of establishing testamentary incapacity, confirms Cupido-Woodman.
Lemmer says the main reason for declaring a will invalid is witnesses; either signing the will without the presence of a witness or asking a beneficiary to sign as a witness.
A witness can not be a beneficiary as that will disqualify them from receiving any benefit of the will. Be advised that a witness must be older than 14 and must be present when a will is signed by the testator.
The name of the executor must also be stated in the will and can not also be a witness.
All persons mentally competent and over the age of 16 can draft and execute their will and do not need the signature of a guardian.
Persons over the age of 18 may be nominated as executors, however, this is not advised. "Appoint an expert; preferably someone with a 'fidelity fund certificate' and keep in mind that not all lawyers will be able to properly execute a will."
In case a will cannot be signed by the testator/testatrix, he/she may ask someone to sign the will on their behalf.
A commissioner of oaths must certify the identity of the testator/testatrix and that the will so signed, represents the will and wishes of the testator/testatrix.
After signing a will in the presence of two competent witnesses, keep an original, signed copy of the will in a safe place.
Author Marinda Louw Coetzee