Court Upholds Will Signed by Deceased While Terminally Ill

The Eastern Cape High Court has dismissed an application to invalidate a will signed by a man suffering from advanced brain cancer just weeks before his death. Jeannette O’Moore and Arthur Anthony Barrow challenged the validity of their late brother John Winston Barrow’s will, which he executed on 12 January 2023. The deceased had been diagnosed with inoperable brain cancer the previous month and passed away on 24 February 2023.

The siblings argued their brother lacked testamentary capacity when signing the will, which left the bulk of his estate to his partner, Marlene Ellaleen Channon, while bequeathing them only a bakkie, woodworking equipment, and R200,000. Medical evidence showed that by 18 January, six days after signing, the deceased was wheelchair-bound, unable to communicate verbally, and significantly compromised.

However, the court found compelling evidence from two witnesses and Reverend Bruce Woolard, who oversaw the will’s execution at St Davids Congregational Church. The reverend read the will’s contents twice to the deceased, who confirmed his understanding through non-verbal communication, including nodding and giving a thumbs up sign before personally signing the document.

The court applied established principles regarding testamentary capacity, and noted that a testator need not be able to read a will themselves if its provisions are carefully and fairly explained in a manner that ensures understanding. Furthermore, the court found that the will was couched in simple terms and properly explained.

Despite the applicants’ concerns about their brother’s deteriorating condition, the court concluded that they failed to prove he lacked the mental capacity to understand the nature and consequences of his testamentary act on the specific date in question.

You can read the full O’Moore v Master judgement here.