Answer to a question from a reader

Can someone with dementia write a valid will?

The short answer

It depends on whether the person has testamentary capacity, which is explained below.

The whole question

Dear Athalie

My grandmother has only one child, my late father. Unfortunately, she is showing signs of dementia and, as her only grandchild, it is up to me to look after her.

Earlier this year, my grandmother's sister and nieces tried to sell her RDP house without our knowledge. I informed the community and they prevented the sale. My grandmother wants me to inherit her house when she passes away but she doesn't have a will and I don't have the same surname as her. Does this mean that the house will go to her sister and nieces? When she applied for the house in 1997 she named her niece as a beneficiary. Can my grandmother still write a will considering her current state of mind?

The long answer

Question 1: 

The Intestate Succession Act applies when there is no will. This means that family would inherit in the following order:

  • The spouse of the deceased

  • The descendants of the deceased

  • The parents of the deceased (only if the deceased died without surviving spouse or descendants)

  • The siblings of the deceased 

In your case, as you are your father’s only child, and he died before your grandmother, you would inherit your grandmother’s house as the descendant of your pre-deceased father. It should not matter that you use different surnames if you can prove that you are your father’s only child and that he was her only child. 

Even if your grandmother’s niece was the beneficiary named in the RDP application, that would not change your place in the order of intestate succession.

But it is always safer to have a will in place, particularly when other family members like your grandmother’s sister and her children would clearly like to sell the house.

You should also find out if your grandmother has the title deeds to the house in her name. You can find out by going to your nearest Deeds Office and asking them to do a data search for the title deeds. You will have to fill in a form and give your grandmother’s name, ID number (or at least date of birth), and the erf number of the house (not the street number). You pay about R14 for them to do the search. If there was a title deed issued, you can get a copy of it there.

Question 2:

Can she still write a will if she is showing signs of dementia?

The Alzheimer’s Society says that having dementia does not necessarily mean that a person can’t make a valid will to say who should inherit her house and possessions. What making a valid will depends on is something called “testamentary capacity”. 

Simply, that means that the person making the will must understand the following things:

  • What it means to make a will and the effect it will have;

  • What she owns – e.g. the house;

  • Who might expect to be named in her will and why she is choosing to either leave or not leave things to them.

Our courts have found that even if a person’s memory is no longer good and her ability to think has deteriorated, if she is able to understand and make decisions about whom she wants to inherit her house, for instance, then she would be said to have testamentary capacity and the will would be valid.

The Alzheimer’s Society also says that if a person has a condition like dementia that might affect their decision-making, the courts have a “golden rule”, which is that it’s advisable to get medical evidence to say that she was able to make a will at the time that she did. Thus, if anyone wants to question the will later, there is evidence that she was able to make one at the time.  

The court found in the case of Essop v Mustapha that the deciding moment for establishing whether a person had testamentary capacity or not was when the will was actually made, not when issuing instructions to make a will.

To be a legal document, a will must be in writing and must be signed by the testator on each page and by two witnesses present at the same time. A person who inherits cannot be a witness. Any person who writes out the will in their own handwriting is disqualified from inheriting anything or benefitting from the will. 

There has been a question of whether a will must be drafted by the testator (the person making the will) to be valid, or if it could be drafted by a third party like a lawyer. This question was finally settled in the case of Bekker v Naude: the court said that the testator must have drafted the will to be valid. 

There are four grounds that a person questioning the will can legally use:

  1. That it wasn’t done properly (e.g. only one witness or not signed on every page);

  2. Forgery;

  3. Testamentary capacity;

  4. Undue influence.

Undue influence means that a person has forced the testator to make the will or change the will so that they can benefit.

Our courts generally protect the right of the testator to decide who should inherit and who should administer the estate. If a will seems to be complete and regular, it will be accepted as valid unless it can be proved by the person questioning the will that it is not valid. In other words, the burden of proof is on the person questioning the will, and thus it is not easy to dispute a will. 

If you need legal advice, you can ask Legal Aid, which is a means-tested organisation, meaning that it assists people who can’t afford to pay a lawyer.

You can contact them here:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on Nov. 26, 2021, 1:37 p.m.

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