Is the notary the competent person to examine the mental state of the testator?

Abstract

Amongst other formalities concerning the publication of wills that the law imposes, the report will primarily focus on the mental capacity of the testator and the role of the Notary in this regard. It must be remarked that if a will is made by a person who at law is deemed to be incapacitated, that will is rendered to be null ab initio. Therefore, the responsibility of the publishing Notary cannot be underestimated. In light of this, the law mandates that the notary who is publishing the will is the person who holds all the power to determine whether the testator has the mental capacity as required by law. Thus, if the notary ill-uses his discretion, a will can be rendered by our courts as null. Furthermore, the discretion of the notary is deemed to be the ultimate seal of approval and the notary has no legal obligation to request his client to provide a medical report proving his mental sanity. In this regard, a discussion will be included in the report which will entail whether the notary is the competent person to analyse the mental state of the testator or whether there are better alternatives to this end. In addition, the report will principally tackle the current position as the law stands alongside landmark judgements to better understand what is required by the notary. Focus will be given to the position taken by our courts concerning the use of medical reports to better aid the publishing Notary. Moreover, the report will contain an argumentative standpoint discussing the advantages and disadvantages in relation to the introduction of the legal obligation to attach medical reports in the publication of wills.