The testamentary capacity of elderly people and the risk for undue influence in South Africa

Abstract

The process of making a will is a very important step that people take during their lifetime.1 It is important that when a person drafts a will, his/her honest and truthful intentions are protected by the act of making the will.2 There are formalities entrenched in section 2 of the Wills Act3 which need to be complied with for a will to be valid. It is said that as people live longer, the potential of them suffering from mental disorders increases,4 statistics show that “approximately 15% of adults aged 60 and over suffer from a mental disorder.”5 As a result of this, it may affect their capacity to draft wills and possibly make older people to be more vulnerable to “undue influence” in executing their wills.6 An example of this can be seen in a scenario where a testator who is 90 years old leaves his entire estate to someone (referred to as A) who prior to the testator’s death, took care of the testator and assisted the testator in his financial affairs which includes taking the testator to draft a will.7 As a result, the testator disinherits his/her close relatives and leaves the entire estate to A. In this situation, at the death of the testator, the question would be whether the will drafted by the testator expresses the influencer’s wishes rather than the wishes of the testator.8 It is important to ask this question to avoid the testator’s close relatives being prejudiced by the potential influence and to ensure that the wishes being carried out are those of the testator and not of the influencer.9 Therefore, the general theme of this research is to understand the testamentary capacity of elderly people and the risk of undue influence that they may face due to their age and other cognitive impairments.10 The research will further focus on recent judgements on South African law and other jurisdictions where testamentary capacity of elderly persons was analysed as well as looking at whether the testamentary capacity of an elderly person is sufficiently protected by common-law principles.11 This is a desktop form of research12 and will be conducted using primary sources such as legislation, case law and secondary sources such as articles, books and web resources. The purpose of chapter one is to provide a brief overview of the research, the purpose of the research and what the research aims to achieve.