O’Moore and Another v The Master of the High Court, Eastern Cape Division, Gqeberha and Others

The deceased, John Winston Barrow, was diagnosed with advanced cancer and experienced significant physical and neurocognitive decline during December 2022 and January 2023. On 12 January 2023, six weeks before his death, he executed a will in terms of which his partner, Marlene Ellaleen Channon, was appointed executrix and the bulk of the estate was bequeathed to her, while the applicants (his siblings) received limited bequests. The will was executed at church in the presence of two witnesses and a reverend, who read the will aloud twice and confirmed the deceased’s assent through non-verbal communication. After the deceased’s death, and subsequently Channon’s death, the applicants applied to have the will declared invalid, alleging that the deceased lacked testamentary capacity due to his illness. If successful, the estate would devolve in terms of the Intestate Succession Act 81 of 1987.

The application to declare the will invalid was dismissed with costs, including the costs of counsel on Scale B.

The case reaffirms South African principles on testamentary capacity, particularly that serious illness, physical incapacity, or impaired communication do not automatically negate capacity. It underscores the importance of the exact time of execution of a will, the heavy onus on a party alleging incapacity under section 4 of the Wills Act, and the acceptance of non-verbal communication as valid assent where a will is properly explained.