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BY Lusekelo Kamfwa
Family Law - Capacity to make a Will
Testamentary capacity refers to the
capacity an individual has to make a will, per the MerriamWebsterDictionary (https://www.merriamwebster.com/legal/testamentary%20capacity ). This article shall look into
testamentary capacity of persons with mental disabilities in Zambia. Zambian
law, as well as other authorities, both binding and persuasive, shall be looked
at. However, it is necessary to define a few terms.
Testate Succession
Testamentary capacity is a concept
that only applies to the testate succession. Testate is an adjective that
describes one leaving a will (or a testament) upon their death. Thus, testate
succession refers to the law that governs the allocation properties of someone
who died testate (i.e. leaving a will). The main body of law that governs testate
succession is the Will and Administration of Testate Estates Act (hereinafter
called the Will Act) Chapter 60 of the Laws of Zambia.
What is a Will?
As already stated, the Will Act
exists to regulate matters in relation to testate succession. Crucial to
testate succession is the presence of a will and who the law deems to be
capable to write a will.
Section 3 of the Act outlines
various definitions for different subjects that the Act will discuss. These
definitions shall be referred to later in the article. One of key focus is the
definition of the will. The will is not defined in that section but simply said
to include a codicil, which is defined as “any document which supplements a
will and contains anything which the testator wishes to add to the will or any
explanation or revocation of what the will contains”. A will is defined in
Black’s Law Dictionary (8th edition, 2004 p. 4924) as a document which outlines
how one’s estate and property is to be distributed at one’s death. By the Act
saying that it includes a codicil, that entails that whenever the term “will”
be used in the Act, it includes a codicil. With that established, the pertinent
provisions relating to the main question of this Article can be addressed.
Testamentary Capacity
Section 4 provides that subject to
section 6(3) of the Act, a person who is not a minor and is of sound mind can
make a will. Section 6(3) provides that in a scenario where a person is
visually impaired or illiterate, any person who is competent and was not
involved in the making of the will can explain adequately the contents of the
will to the testator and must attest in writing that the testator understood
the contents of the will before it is then executed. Thus, even visually
impaired and illiterate persons can form a will, but it is only valid if the
provisions of section 6(3) are followed.
Based on the outlined provisions,
the qualifications of one who can form a will are that two, which is:
1.
They
are not a minor.
2.
They
are of sound mind.
Section 3 defines a minor as
someone who has not attained the aged of 18. “Sound mind” refers to one that is
not insane, from a legal perspective. This provision brings into question
whether people with mental disabilities can make wills.
To answer this question, it is
necessary to look at Zambia’s legislative history. Prior to the enactment of
the Wills Act, the law that regulated wills was the Wills Act of
1837, of the Parliament of England. The Act does not speak to address the
matter of testamentary capacity of persons with mental disabilities. That
matter is addressed in common law, which is applicable to Zambia by virtue of
the section 2(a) English Law (Extent of Application) Act, Chapter 11 of the
Laws of Zambia. The landmark case that deals with this question is the case
of Banks v Goodfellow (1861-1873) All ER Rep 47.
In that case, the claimant made a
claim against the will made by Banks on the basis that he was of unsound mind
(which there was evidence of). The trial court ruled in favour of Goodfellow,
leading to Banks’ appeal. The appeal court allowed Banks appeal and established
what has since become the common law test for testamentary capacity. In
establishing the test, the court stated that a will made by one who is mentally
impaired is valid provided the testator
1.
Understands
the nature of making a will and its effects;
2.
Understands
the extent of the property which he or she is disposing of;
3.
Must
be to comprehend and appreciate the claims he or she must give effect to; and
4.
The
disease of mind he or she has does not impair his or her mental faculties to
the point that he or she cannot make a will.
This test is the common law
standard in determining whether a mentally impaired person can make a will or
not. Though there are no Zambian cases tackling the matter, legislation on the
rights of people with mental impairments sheds more light on the matter.
Prior to 2012, the law that dealt
with people with mental impairments was the Mental Disorders Act,
chapter 305 of the Laws of Zambia, which provided a framework for detaining
mentally impaired persons. It did not deal with the legal capacity of persons
with mental impairment. The Persons with Disabilities Act, No 6 of 2012,
of the Laws of Zambia, was passed in 2012 to grant rights to persons with
disabilities, which includes persons with mental disabilities. Article 8(1)
provides that persons with disabilities have the right to legal capacity. Legal
capacity is defined ones power under law to engage in a particular undertaking.
Seeing that provision says that legal capacity of persons with disabilities is
equal with others (which includes people with mental disabilities), that
entails that persons with mental disabilities can form wills. The Mental
Health Act, No 6 of 2019, of the Laws of Zambia was enacted for the purpose
of conferring rights to people with mental disabilities. Section 4(1) and (2)
provide that a person with mental disability has legal capacity unless their
disability is so significant that it makes them lack mental capacity. As such,
it would be correct to interpret the provision in the Wills Act as only
applying to the persons who mental faculties are so impaired that they do not
have mental capacity.to make a will.
One authority may shed more light
on the testamentary capacity of people with mental disabilities.
In the case of Edward Bikeur v
the Master of the High Court of Namibia and Philipus Kaaronda, NAHCMD 234
(27 July 2018), the Namibian High Court looked into the question of testamentary
capacity. In this case, the late late Hiskia Kaaronda wrote a will in which he,
among other things, allocated part of his estate to the plaintiff. However,
when it was discovered by the first defendant that the late Hiskia Kaaronda had
Alzheimer’s disease at the time he wrote the will (a disease that affects one’s
mental faculties), the first defendant had appointed the second defendant as
the executor of the estate and nullified the will that was written. The
plaintiff claimed that the testator was of sound mind at the time he drafted
the will. The court, in ruling in favour of the plaintiff, applied the rules
stated in the Goodfellow case, as well as referring to precedent set in
other courts, and stated that for a will to be absolved, it must be shown that
the testator’s mental capacity was greatly impaired at the time the will was
written. Because the evidence did not explicitly show that the disease affected
his mental capacity at the time he wrote the will, the court held that the will
was valid.
Though the above case is only of
persuasive value, it is still worth taking note of. The above case shows that
for a will to be declared invalid on ground of unsound mind, it must be shown
that the person in question was so mentally impaired at the time of writing the
will that they could not appreciate what they were writing. It is not enough to
simply show that one had a mental illness. One has to go further and show that
one’s mental capacity was impaired at the time of writing the will.
In conclusion, it can be said, with
reference to the wording of the Wills Act, common law, Zambia’s law in
relation persons with mental illness and the Namibian case, that persons with
mental illness can formulate legally binding wills, provided that it can be
shown that the testator appreciated the document he was drafting. That being
the case, Zambia needs to amend the Wills Act so that it explicitly
upholds the rights of persons with mental illness to formulate wills. Doing so
will make the Act align with international human rights standards, as well as
harmonise it well with the other Acts that uphold the rights of persons with
mental illness.
This Article is Brought to you by:
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