Answer to a question from a reader

My cousin won't let us see our grandmother and is making her write a will. What can we do?

The short answer

Ask a social worker if the family can be assisted to have access to your grandmother and check that she is alright.

The whole question

Dear Athalie

My parents bought a house in District Six for my 97-year-old grandmother. Since then, my cousin moved in with her and is making her write out her will but won't let anyone close to my grandmother or the house. My mother has the deed of sale. How can we help my mother get her house back so that we can see our grandmother again?

The long answer

The deed of sale that your mother has is the legal document containing the terms of the contract of sale and must be signed by the seller and the buyer. It is not the Title Deed, which is the document that proves legal ownership of the property. If the title deed is in your grandmother's name, she is the legal owner of the house and it is hers to dispose of.

Your cousin may well want to influence your grandmother to make them the beneficiary of her will, but it is not an easy thing to prove. 

There are three grounds on which a will can be challenged:

Formalities: The will must be in writing, and it must be typed or handwritten. If it’s handwritten, the person who wrote it is not allowed to be mentioned as a beneficiary in the will. Each page must be signed by the person making the will (the testator) and two competent witnesses must also sign at the same time as the testator. The witnesses are also not allowed to be beneficiaries of the will.

Capacity: A person must be over 16 years old and must have the capacity and intention to dispose of their property and assets to the heirs of their choice. To challenge the will on the grounds of capacity, you must be able to prove that your grandmother did not have the mental capacity to appreciate the effect of her acts when the will was made. 

This is a difficult thing to prove because old age and illness are not in themselves proof that a person did not have the ability to appreciate the effects of their acts. The courts have found that, even when a person’s memory had badly deteriorated, they could still have the necessary understanding of what they wanted to do at the time the will was made.  

Undue duress or influence: The question is whether the will contains the wishes of someone other than the testator. The existence of a relationship such as the one your cousin has with your grandmother does not in itself mean that it can be assumed that what they want has been substituted for what your granny wants. 

In general, a will that appears to be formally correct and complete is presumed to be valid unless it can be proved invalid. The person who alleges that there has been undue influence or lack of mental capacity on the part of the testator to make a valid will has to prove the allegation. That means proof on a balance of probabilities, which is the rule that applies in all civil cases. As a rule, this is difficult to prove. 

If your mother is not able to contact your grandmother at all, perhaps she can inform a social worker that she is worried about her mother and ask if there is any way the family can be assisted to have access to her and check that she is alright.

She could contact the Family and Marriage Society of South Africa (FAMSA) in Cape Town at 021 447 7951 to discuss it.

Wishing you the best,

Answered on Jan. 26, 2021, noon

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.