TESTAMENTARY CAPACITY OF COGNITIVE-IMPAIRED ELDERLY – WHEN IS OLD TOO OLD TO EXECUTE A WILL?

Abstract

Freedom of testation is a foundational principle of South African testate succession, and there are relatively few restrictions on a testator’s sudden and impulsive change of heart. Two requirements need to be met, namely a person must have testamentary capacity and the prescribed formalities must be complied with. The requirement for testamentary capacity is assumed if one complies with the formalities. Testamentary capacity has a minimum age but is not restricted by old age. However, it calls for the testator to be of an unsound mind and therefore to have mental capacity at the time of executing a will. World statistics show that there is an increase in the number of older and often also wealthier people as modern research and medicine allow people to live longer and healthier lives, resulting in the increase in the average lifespan. Cognitive impairments such as dementia and Alzheimer’s disease often arise with the elderly which have become more prevalent over the last 30 years. This article explores testamentary capacity of the elderly against the backdrop of cognitive impairments and the ability to accumulate wealth, which means that old people often have more assets that can devolve (often to their relatives) upon their demise. In the contest of wills testamentary incapacity of the testator (at the time of the execution of the will), has become the most frequent reason for challenging a will. In this contribution, recent case law from South African and other jurisdictions relating to testamentary capacity, from which we can gain knowledge, are discussed to establish how the courts deal with old age combined with cognitive impairments such as dementia and Alzheimer’s disease. The focus is on impairments affecting the mental
status of older testators and to observe to what degree these aspects influence or negate testamentary capacity. The conduct of another person, such as undue influence, fraud and duress are distinguished from the testamentary capacity of an individual and is not the focus of this contribution. In conclusion the question is considered whether elderly people, who are vulnerable due to age and other
impairments, enjoy freedom of testation and if their testamentary capacity is sufficiently protected by the common-law principles.