n Stellenbosch Law Review = Stellenbosch Regstydskrif - Testeerbevoegdheid, herroeping van 'n testament en kuratele sorg

Volume 15, Issue 3
  • ISSN : 1016-4359
  • E-ISSN: 1996-2193



It is submitted that in the interest of fairness and reasonableness towards those legal subjects placed under a curatorship due to their inability to manage their own affairs, the legislature should consider the introduction of legislation to enable the execution (and revocation) of a last will by the appointed curator of the &lt;I&gt;curandus&lt;/I&gt; under the auspices of a judge of the high court. It is not in harmony with the perceived culture of a new democratic dispensation governed by a bill of rights to continue to exclude these unfortunate legal subjects from access to an alternative to the norms of intestate succession to govern the ultimate appointment of beneficiaries to assets of the <I>curandus as de cuius</I>. The proposed legislation should also enable the curator to revoke a testamentary disposition that, albeit it was legally executed under circumstances when the testamentary capacity of the testator was not questioned, was no longer applicable due to changed circumstances since the testator was placed under a curatorship. This should <I>inter alia&lt;/I&gt; apply if the beneficiary appointed in the last will has since conducted himself in a manner towards the testator that disqualifies him from the benefits as an unworthy beneficiary. But for his mental incapacity the testator would normally have revoked the appointment under these circumstances and it is not honourable to allow the unworthy person to benefit from the unfortunate circumstances of the testator. Although the unworthiness may be eventually challenged by another interested party after the testatator's demise, it is not in the interest of justice to defer the ultimate judgment on the beneficiary's conduct until after the death of the testator - delayed justice may be equalled to justice denied.

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