• That you be over the age of 16, and


• That you be mentally capable of appreciating “the nature and effect” of your will (more commonly, but less accurately, referred to as being “of sound mind”).

That “mental capability” becomes critical in those unfortunate cases where the validity of a deceased person’s will is later challenged by a disinherited heir or relative. In considering just such a case recently, the High Court set out “the main elements of the test for deciding the question of testamentary capacity” as being that, at the time of making the will, he or she must have been capable of:

• “......comprehending the nature and extent of his property”, and


• “......recollecting and understanding the claims of relations and others upon his favour and upon his property”, and


• “......forming the intention of granting each of them the share in the property set out in the will or excluding them from any share of his property, as the case may be.”

Tell your lawyer upfront if there is any hint of a possible challenge to the validity of a will (on any grounds), so that preventative measures can be taken. For example, in this particular case the deceased was gravely ill, and had predicted that his will would be challenged. His attorney accordingly arranged for it to be signed in the presence of a medical doctor, who was accordingly able to testify effectively as to the deceased’s capacity at the time of signing.

Note that if you are challenging someone else’s will on the basis of testamentary incapacity, the onus is on you to prove it.