Once a person has died, their last valid will becomes the law in so far as their assets are concerned. I’ve found that the winding up of a deceased person’s estate is similar in most jurisdictions around the world. Once someone has passed away, the first task of the next of kin, or person most interested in the affairs of the deceased, is to submit the will or any testamentary writing to the relevant authority. In SA this is the Master of the High Court.
To conceal, destroy or alter the will of another person is, of course, a crime. The requirements for establishing the validity of a last will and testament in SA have changed with the amendments made to the Wills Act 7 of 1953. In the past, a will had to be signed in full by the testator (male) or testatrix (female) on every page. The same two witnesses (who had to be over the age of 16) also had to sign each page.
The will had to be dated and the place where it had been signed identified. Also, the signatures on the last page had to be close enough to the end of the writing so that no further clauses could be inserted after signature by a third party. In Botswana, these requirements are still in force and I submit that if a testator or testatrix in SA were to adhere to the ‘old way’ of drafting a will, it can do no harm at all.
Burden of proof
Any person over the age of 16 may make a will. However, someone mentally incapable of appreciating the nature of their actions at the time of making the will cannot create a valid will. Such ‘mental incapacity’ may be the result of an unsound mind, disease or drunkenness.
The ability to understand the testamentary act – the drafting of the will, determining who gets what – is key to whether or not a person will be deemed mentally capable of making a valid will. The burden of proof rests upon the person who alleges that the will is invalid. As we’ll see this is very onerous. In Tregea v Godart 1939 AD 16, the court, relying upon an earlier English case, outlined some guidelines that are useful as a general test for testamentary capacity.
Guidelines
For one thing, these guidelines don’t demand a perfect memory of the testator or testatrix. A person so affected by age they’re unable to recollect names at times may still have sufficient memory and intellect for the ordinary transactions of life and thus be competent “to direct the distribution of his property by will,” to use the words of the court.
In terms of the Wills Act, a person has to have the mental capacity to make a will at the time of execution (signing) thereof. It may be a good idea to record the names and addresses of the witnesses so if the will is contested, they can be called upon.
Peter O’ Halloran is head of tax at BDO, Gaborone. Contact him on 00267 390 2779 or at [email protected]. Please state ‘Tax’ in the subject line of your email.
