Study Set Content:
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Chapter Four

Factors Influencing Free testamentary expression.

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One of the requirements for valid will.


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What is volition?

The will must constitute the testator's own free will.

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Name two Lack of testamentary capacity cases

  1. Spies v Smith case
  2. Kirsten v Bailey case
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Absence of volition...

Ground for invalidity.

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What is the first factor that influences volition.

Undue Influence

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Undue influence is only considered after it has been ascertained that testator had 2 things...

  1. Animus Testandi (intention to make a will)
  2. Testamentary Capacity (understands the nature and consequences of making a will)
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Will wil then be invalid if animus testandi and testamentary capacity is ascertained but there is...

No free expression of testator's wishes within will.

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*Spies v Smith Case*

Court defined Undue Influence

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What is undue influence as defined in the Spies v Smith case?

  1. Undue influence is if the testator is moved by artifices of such a nature that they may be equated by reason of their effect to the excercise of coercion or fraud to make bequest he would not otherwise have made, and which therefore expresses another person's will rather than his own.
  2. In other words undue influence is when a person has been tricked in such a manner that the outcome of the deceit equals fraud or coercion of the testator to make a decision he otherwise would not have made and which in the end expresses the will of the other person rather than the testator.
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Undue influence is a

factual question to be assesed on the circumstances of each case.

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A mere special relationship with the testator such as curator bonis, husband/wife, doctor/patient, close friend of the testator is..

Not sufficient to justify the presumption of that undue influence took place.

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What are the four factors to consider whether undue influence took place?

  1. The mental state of the testator at the time of the execution of the will.
  2. Ability to resist any undue influence.
  3. Relationship with testator.
  4. Period between the execution of the will and testator's death. (was there time for him to change his mind)
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Decision in Spies v Smith

There was insufficient evidence to prove that undue influence by the uncle was present.

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In cases of undue influence..

There is a rebuttable presumption that the wishes of the testator was not his own

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The onus of proof in proving undue influence lies on...

He who alleges that there was no free expression of the testator's will.

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Not every undue interference equals..

Undue influence.

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Six Examples of undue interferences that do not constitute undue influence and not affect the validity of the will

  1. Flattery
  2. Obedience/Excessive eagerness to please someone (obsequiousness)
  3. Professions of extraordinary love or respect
  4. Meek tolerance of continual humiliation
  5. Protracted subservience followed by a request
  6. Well-founded accusations against proposed beneficiaries
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What is Artes captatoriae?

Factors which are not considered undue influence but are undue interference

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Katz v Katz case

Mere unfounded suspicion or speculation is not enough to conclude undue influence. Evidence must be provided.

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