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

The late John Winston Barrow was diagnosed with prostate cancer in November 2022 and advanced inoperable brain cancer in December 2022. His condition deteriorated rapidly - by 18 January 2023, he was wheelchair bound, unable to talk or communicate verbally, and demonstrating significant neurocognitive deterioration. However, six days earlier on 12 January 2023, the deceased executed a will in which he bequeathed the bulk of his estate to his partner, Marlene Ellaleen Channon, with only a bakkie, woodworking equipment, wood and R200,000 left to the applicants (two of his three surviving siblings). The will was executed at St Davids Congregational Church, where Reverend Bruce Woolard read the contents twice to the deceased in the presence of two witnesses. The deceased communicated his understanding and agreement through nodding and giving the 'thumbs up' sign, then signed the will personally. The applicants, who would inherit under intestate succession, challenged the validity of the will, alleging the deceased lacked testamentary capacity on 12 January 2023.

• Whether the deceased had testamentary capacity on 12 January 2023 when he executed the will
• Whether the deceased was mentally capable of appreciating the nature and effect of his testamentary act at the time of execution
• Whether the formalities and requirements prescribed by the Wills Act 7 of 1953 were complied with
• Whether non-verbal communication (nodding and thumbs up gestures) was sufficient to demonstrate understanding and consent to the will's contents
• Whether the burden of proof that the testator was mentally incapable had been discharged by the applicants

The application was dismissed with costs. The costs of counsel were to be taxed in accordance with Scale B, as set out in rule 69(7) of the Uniform Rules of Court.

The binding legal principle is that under section 4 of the Wills Act 7 of 1953, a testator must be mentally capable of appreciating the nature and effect of his testamentary act at the time of execution, with the burden of proving mental incapacity resting on the party alleging it. Non-verbal communication (such as nodding and hand gestures) can constitute valid evidence of a testator's understanding and consent where the testator is unable to communicate verbally, provided the will's provisions are carefully and fairly explained in a manner designed to ensure understanding. The test for testamentary capacity is whether the testator had a 'disposing memory' - whether his mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed the will, including the property being bequeathed, the manner of distribution, and the objects of his bounty. Evidence of deterioration in mental capacity shortly after execution does not, without more, establish incapacity at the time of execution. The test for mental capacity is related to the specific will in question, so that whether it is framed in simple terms becomes relevant.

The court noted, without deciding, that the applicants' alleged acceptance of their respective bequests under the will might constitute a further basis for dismissing the application, though this was unnecessary to determine given the findings on testamentary capacity. The court also observed that it was unnecessary to speculate whether the deceased's apparent capacity on 12 January 2023 represented a lucid interval or whether his condition had simply not yet deteriorated to the extent observed six days later. The court commented that there was no good reason to deviate from the ordinary approach to costs, implicitly rejecting the notion that challenging a will based on reasonable impressions and medical observations should attract punitive costs, even where such challenge ultimately fails.

This case provides important guidance on testamentary capacity in South African succession law, particularly in circumstances where a testator is severely physically compromised and unable to communicate verbally. It confirms that: (1) non-verbal communication (such as nodding and hand gestures) can be sufficient to demonstrate understanding and consent to a will's contents; (2) the inability to read or speak does not automatically invalidate a will if the provisions are carefully explained and the testator demonstrates understanding; (3) the relevant time for assessing mental capacity is the moment of execution, not days before or after; (4) the burden of proving mental incapacity rests firmly on the party challenging the will; and (5) even rapidly deteriorating medical conditions do not create a presumption of incapacity at an earlier point in time. The case reinforces the importance of proper attestation procedures, including having credible witnesses and, ideally, a commissioner of oaths who can certify the testator's understanding at the time of execution.