The will of a man with severe brain cancer, made about a month before his death, was challenged by his two siblings, who said that he lacked testamentary capacity due to his illness.

In the last will signed by the now late John Winston Barrow, he left the bulk of his possessions to his partner. His siblings turned to the Gqeberha High Court in a bid to have his latest will overturned.

The deceased was diagnosed with prostate cancer in November 2022. A month later, tests revealed advanced inoperable brain cancer.

His condition worsened in December 2022, as he could not walk, struggled to stay upright, and could not feed himself.

He required assistance from his partner, only identified as Channon, assisted by the applicants, who are two of the three surviving biological siblings of the deceased.

By January 18, 2023, the deceased was wheelchair bound, unable to talk or communicate, physically compromised, and demonstrating significant and visible neurocognitive deterioration. His doctor stated in a letter that he doubted very much whether Barrow was in a mental condition to sign any documents by January 18.

However, Barrow executed a will six days earlier and passed away slightly over a month later.

According to the will, Channon was nominated as executrix, inheriting the bulk of the estate. Only a bakkie, woodworking equipment, wood, and R200,000 were left to the applicants. 

Channon had, meanwhile, also passed away. The executrix in Channon’s estate, who is opposing the application by the siblings, relied on affidavits of three people – one being Reverend Bruce Woolard – who were present when Barrow made his last will.

Two witnesses confirmed that the reverend read the contents of the will to the deceased twice, in their presence. The deceased was asked whether he understood the nature of the document he was about to sign and whether he agreed with the contents.

On each occasion, the deceased answered in the affirmative and gestured by giving the “thumbs up” sign. He then signed the will in the presence of the witnesses. They said that they had no reason to doubt that at the time, he was fully aware of what he was doing and understood his actions. 

The reverend said the deceased was physically strong enough to attend church and then appended his signature to the will personally. 

Judge Avinash Govindjee remarked that the high point of the applicants’ case is the doctor’s letter, in which he said by January 18, he doubted the deceased was in a mental state to sign any documents.

“It may be accepted that at that stage, the deceased was in no position to attest to a will. But the doctor was unable to express an opinion on the deceased’s state of mind six days earlier,” the judge said.

In turning down the application, Govindjee said it is unnecessary to speculate whether this was a lucid interval or whether his condition had simply not yet deteriorated.

He concluded that there was nothing to suggest his last will was not his last wish.

zelda.venter@inl.co.za

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