Law of Succession – ERF 222

These notes have been compiled using various academic sources and the information and ideas contained herein
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These notes are colour coded as follows:

The Constitution
Legislation
Definitions
Case Law
Examples

Table of Contents

Theme 1: Introduc0ons, defini0ons, and background 2

Unit 1.1: Background 2
Unit 1.2: Introduc4on to ves4ng of rights of beneficiaries regarding assets of estate 4
Unit 1.3: Requirements for succession 6
Theme 2: Intestate Succession 7
Unit 2.1: Defini4on and terminology 7
Unit 2.2: Rules of the Law of Intestate Succession 8
Unit 2.3: Adopted children 12
Unit 2.4: Children born out of wedlock, ar4ficial fer4lisa4on, and surrogate mother agreements 12
Unit 2.5: Renouncement by an intestate heir 13
Unit 2.6: Unworthiness of an intestate heir 13
Unit 2.7: Law of Intestate Succession and Customary Law 13
Theme 3: The law of Testate Succession 14
Unit 3.1: General principles, wills, codicils, any other testamentary wri4ng 14
Unit 3.2: Testamentary capacity 16
Unit 3.3: Formali4es in the execu4on of wills 17
Unit 3.4: Court’s power to declare a will valid (Condona4on of will) 20
Unit 3.5: Formali4es for amendment of a will 22
Unit 3.6: Revoca4on and Revival of Wills 23
Unit 3.7: Capacity to inherit 27
Theme 4: Freedom of testa0on and content of wills 29
Unit 4.1: Freedom of testa4on, Cons4tu4on, and Power of appointment 29
Unit 4.2: Content of Wills 32
Theme 5: Succession by contract 52
Theme 6: Administra0on of estates 54
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!eme 1: Introdu.i0s, defin4i0s, and backgr:nd

Un4 1.1: Backgr:nd
General background to the law of succession
• Rules of law of succession determine how devolution of deceased estate must take place
• Rules identify
- person entitled to inherit (beneficiaries)
- extent of benefits (inheritances or legacies) to be received
- rights and duties of beneficiaries
- administration process of deceased estates
• Deals with the “who receives what” question
• Succession may take place in 3 ways:
- In accordance with valid will (testamentary succession / successio ex testamento)
- Through operation of law of intestate succession in absence of a valid will (successio ab intestato / successio legitima)
- In terms of a contract / agreement (successio ex contractu / pactum successorium)

Law of succession in the legal system

• Material rules of law of succession (both common and customary law rules) operate in the private sphere
• They prescribe what becomes of a person’s estate after death, who the beneficiaries are, what they will inherit, and right and
duties they may have in deceased’s estate
• Administration of estates: formal rules describing process by which deceased estate is liquidated
• Master of the High Court (who holds a public office) is involved in the process, but the rules operate in private sphere

Dual character of the law of succession

• Modern South Africa has a mixed, pluralistic legal system
• South African law of succession consists of 2 main branches
- Common law of succession that comprises testamentary and intestate succession rules (Roman-Dutch law)
- Customary law of succession that comprises intestate succession rules (Indigenous laws and Reform of Customary Law
of Succession and Regulation of Related Matters Act 11 of 2009)
• Both branches have equal status in South African legal system
• 4 main issues with dual character:
- Customary law subject to 2 provisos – must be compatible with Constitution; may be amended by means of legislation
- Decision as to which law is applicable to a deceased estate is made by applying choice of law rules that can be derived
from statute or judicial precedent
- S 1(3) of the Law of Evidence Amendment Act provides rules for dealing with conflict between different customary laws
- Differences between common and customary law of succession are based on societal and economic considerations
o Main purpose of customary law of succession is preservation of family unit and community after death of deceased
(social function). Heir thus steps into the shoes of deceased and acquires their rights and obligations. Previously
used rule of male primogeniture
o Common law of succession rules regulates transfer of wealth of deceased and allow deceased more freedom to
dispose of their property as they please (economic function)

Choice of law rules

Problem of conflicting rights and obligations
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• Duality of SA’s legal system leads to situations where persons are subject to overlapping / conflicting rights and obligations
• Courts have to apply choice of law rules to determine which law is applicable
• Process forms part of legal discipline known as choice of law rules / interpersonal conflict of laws
• Can be derived from statute and judicial precedent

Testate law of succession

• There is a valid will – choice of law rules are straightforward
• Concept of a will is not found in customary law and there is absence of direct provision indicating which law should apply,
thus common law of succession should apply
• Testator could indicate in their will which law should apply using common law notion of freedom of testation
• Regulated by Wills Act 7 of 1953:
- Who may execute a will
- Formality requirements for a will
- Amendments of wills and what constitutes an amendment
- Court’s power to condone lack of formalities
• Wills Act is not a complete codification of the law of testate succession
• Common law as developed through case law deals with other aspects. i.e.,
- Revocation of wills
- Revival of a revoked will
- Common law accrual
- Determination of the nature of a beneficiary’s rights with regards to their benefits

Intestate law of succession

• Where deceased died without valid will or their will only disposes of certain but not all assets (partially testate) – choice of law
rules more complex
• Bhe v Magistrate, Khayelitsha:
- CC made major changes to choice of law rules to be applied to intestate estates of persons living under customary law
- Declared s 1(4)(b) of ISA (regulated who administered estate), s 23 of Black Administration Act (rule of male
primogeniture), and regulations promulgated under this section to be unconstitutional and invalid
- Ordered that, from 14 October 2004, ISA had to be applied to all intestate estates, irrespective of means of cultural
affiliation of deceased
- Customary law of succession can now only be applied if chosen by means of freedom of testation (by a clause in a will)
• Regulated by Intestate Succession Act 81 of 1987 and is modified by Reform of Customary Law of Succession and
Regulation of Related Matters Act 11 of 2009 (RCLSA)
• These provide legal rules that determine who a deceased person’s beneficiaries are and how much beneficiary is entitled to
inherit

Administration of deceased estates

• Process in terms of which liabilities are paid and the assets (or remainder thereof) transferred to beneficiaries
• Done by appointed executor under supervision of Master of High Court in terms of Administration of Estates Act 66 of 1965
• Deals with the “how question”
• Choice of law rules also applies to the liquidation of deceased estates prior to December 2000 when a separate system existed
for administering intestate estates depending on race
- Magistrate administered black person’s intestate estates, while Master of High Court administered intestate estates of other
race groups and the testate estates of black people
- This was declared unconstitutional by CC in Moseneke v The Master
• Court in Bhe v Magistrate, Khayelitsha declared that SA should have a unified and unbiased system of administration of
estates and that all new deceased estates must be administered under Master’s supervision according to Administration of
Estates Act
• Since 2004, the choice of law rules only applies to the question of whether a deceased estate must be administered by the
Master or a designated magistrate’s office depending on the value of the estate
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Succession terminology
• Testator: a natural person who makes a will in which they bequeath an estate in the form of bequeathable assets
• Freedom of testation: freedom of a person to dispose of their assets as they please. Enshrined in s 10 and 25 of Constitution
• Estate: assets and liabilities. The deceased leaves behind an estate, but only assets devolve
• Will: unilateral, voluntary juristic act contained in a document which complies with the formalities required by law, in which
the testator gives instructions pertaining to what must happen to their estate after their death
• Codicil: any addendum to an existing will dealing with an amendment, addition to a will, etc
• Beneficiary: the person to whom a testator’s estate is transferred
- Heir: person whose benefit / portion must be determined as it is not clear from a simple reading of will (benefit =
inheritance)
- Legatee: person who receives a specific asset in terms of a testator’s will (benefit = legacy)
- Legatee has stronger position than heir when executor must sell assets to pay liabilities
- Collation of benefits only apply to certain heirs
• Executor: person who is charged with administration of a deceased’s estate. Executor in a deceased estate is distinguished
from a curator of an insolvent estate and a trustee / administrator of a trust
- Normally appointed by the testator in their will, otherwise the Master appoints someone
- Entitled to 3,5% of the gross value of the estate as fee
• Dies cedit: “the day will come”. Time when beneficiary obtains a vested right to claim delivery of bequeathed property
unconditionally (whether or not exercise of this right is delayed until future date which is certain to arrive)
• Dies venit: “the day has come”. Time at which a beneficiary’s right to claim delivery of bequeathed property becomes
enforceable or day when delivery of property must take place

Un# 1.2: Introdu/i1 to ve4ing of rights of beneficiaries regarding assets of e4ate

Falling open of the estate
• The beneficiary’s claim against the estate (executor) arises the moment the estate falls open (delatio)
• Delatio is usually upon the death (or just after death) of the deceased / testator
• It is also moment when beneficiary’s right becomes vested (dies cedit) – meaning they now have a vested personal right to
claim their benefit
• Delatio is not immediately enforceable – must compel the executor through a legal process to deliver / transfer assets to them
• Dies venit: moment the beneficiary can enforce their vested right
• Moment of vesting (dies cedit) and moment you can enforce your vested right (dies venit) normally coincide, but dies venit
can sometimes be postponed
• Dies venit can never precede dies cedit – you cannot enforce a right you do not have

Testate succession
• Dies cedit and dies venit depends on the intention of the testator as it emerges from the wording of the will

Pure bequest
• The testator leaves assets to a beneficiary with no conditions (e.g., “I leave my house to X”)
• Dies cedit will happen at the time of death of the testator
• Dies venit will theoretically also happen at time of death, but in practice, because of lengthy period of administration process,
beneficiary can only enforce right against executor once process is completed (s 35(12) of Administration of Estates Act)

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Suspensive condition
• The testator leaves assets to a beneficiary if they meet certain conditions / requirements (e.g., “I leave my house to my son on
condition that he passes the LLB degree”)
• Dies cedit is postponed pending the fulfilment of the suspensive condition, thus dies venit is also postponed
• If the beneficiary dies before fulfilling the suspensive condition, no right is vested in their estate, thus nothing can be
transferred to their beneficiaries

Time clause
• The testator bequeaths assets to a beneficiary, subject to certain time clauses (e.g., “I bequeath R50 000 to my daughter, but
she may not receive it until she turns 23”)
• Dies cedit is at the moment of the testator’s death
• Dies venit is postponed until the specific point in time stated in the will
• In other words, a vested right to claim the benefit occurs immediately, but the beneficiary must wait to enforce this right
• The vested right to claim (personal right) has a value and thus forms part of the beneficiary’s estate – thus if the beneficiary
dies before the specific time stated, the personal right can devolve upon their testate / intestate beneficiaries
• Their beneficiaries do not have more rights than original beneficiary had – thus they still must wait until time specified in will

Intestate succession
• Dies cedit vests in intestate beneficiary upon the deceased’s death
• There is nothing indicating possible postponement of rights
• Dies venit occurs at the death of the deceased (in practice, it would occur after completion of the administration process)

Vesting of an intestate inheritance

• Only natural persons, irrespective of their age, can inherit intestate – no companies, close corporations, firms, associations,
trusts, syndicates, body corporate, or animals
• If there is no will, vesting of right and delatio (time at which intestate heirs are determined) will occur at death of deceased
• If there is a valid will that later becomes inoperative:
- Harris v Estate MacGregor
o Intestate estate vests on date when it first became factually certain that their will have become inoperative (not at death
of the testator)
o Intestate heirs are determined (delatio) when the will becomes inoperative
o Where a deceased dies without having a will at all, their intestate estate vests on the date of their death when their
intestate heirs must be determined

Adiation
• It is uncertain whether the vesting of rights occur automatically when the moment of vesting occurs (upon dies cedit) or if the
beneficiary only acquires a vested right when they accept / adiate
• Greenberg v Estate Greenberg: court stated that vesting of rights occurs automatically
• Wessels v De Jager: upon death, beneficiary only acquires power to accept (acceptance necessary) – doubtful whether this
position is correct
• Nature of the beneficiary’s right:
- Greenberg v Estate Greenberg
o Beneficiary does not become owner immediately on death of the testator – at most, they acquire a vested right to claim
delivery / transfer of asset
o Beneficiary will only become owner upon delivery / transfer (property law)

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o If assets must be sold by executor to pay debts / liabilities, it can result in beneficiary never becoming owner despite
being awarded asset in the will
• Uncertain who owns the estate of the deceased in the period between death and transfer of asset to beneficiary
- It is not deceased, since they passed, but also not beneficiary since they only acquire a vested right / personal right to claim
benefit
- Only after they have enforced this right (dies venit) and movable property has been delivered to them or immovable
property transferred to them, will they become the real owner
- Best possible solution, is that the executor in their official capacity becomes the owner
- InVan den Bergh v Coetzee, the court indicated that this notion must not be taken too far – executor does not step into the
shoes of the deceased and does not succeed the deceased. They are simply required to administer and distribute the estate
in terms of the Administration of Estates Act

Un4 1.3: Requirements for successi0

The testator must be dead
• In both common and customary law of succession (in case of property), the owner must have died
• Exceptions to rule can occur
• Court can pronounce a presumption of death and make an order for division of an estate:
- Those who allege that person is dead must prove it, which can be difficult when person has disappeared, and no body has
been found
- Only when court makes a presumption of death order, can the disappeared person’s estate be administered
- Court also usually orders that the estate of the presumed deceased person should be distributed among their heirs subject
to the provision of security that the estate can be returned to them, should they reappear
- Factors which court might consider:
o Length of time person has been missing
o Circumstances of the disappearance
• Second exception is when estates are massed
- When estates are massed, entire or parts of estates of various testators are consolidated into a single economic unit for
purpose of testamentary disposal
- Effect is that the surviving testator’s estate devolves according will of first dying while they are alive

Beneficiary must be alive at time of delatio / devolution / falling open of estate

• Where a beneficiary has already died when bequeathed benefit vests, there can be no succession except if deceased made
provision in their own will or antenuptial contract for predecease of beneficiary or in circumstances where ex lege substitution
applies
• Exception is where beneficiary has been conceived but not yet born when bequeathed benefit vests
- Unborn child is incapable of bearing rights and cannot inherit, thus vesting of bequest is held over until child is born alive
- Referred to as nasciturus fiction – child who survives birth is regarded as having obtained rights from the moment of
conception, if conception took place before death of testator
- Codified by s 2D(1)(c) of Wills Act
• Commorientes: testator and beneficiary dying simultaneously in the same calamity
- Common law rules no longer apply
- Sequence of death is a factual question that must be resolved by means of medical or other evidence
- If there is no evidence, court will accept that deceased persons died simultaneously
- Ex parte Graham:
o Beneficiary can inherit from the deceased only if they survive the deceased
o If a person dies before another or simultaneously, they cannot inherit from them if the sequence cannot be proved on
a balance of probabilities
o In the absence of evidence to the contrary, court will find that commorientes died simultaneously (thus cannot inherit)
- Greyling v Greyling:
o Questioned whether simultaneous death clauses (“should we die simultaneously”) takes effect where both spouses die
in disaster, but one survives other by a few minutes, hours, or days
o Solution is that this clause should be coupled with a time frame

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Beneficiaries must not be incapable / unworthy of inheriting

• E.g., If beneficiary wrongfully and intentionally or negligently caused the death of the deceased, they cannot inherit from them
(bloody hand principle)
• S 4 of Wills Act: any person who attests and signs a will as a witness or signs will in the presence and by discretion of testator
(amanuensis) or who writes out the will are disqualified from receiving any benefits from that will

!eme 2: InteBate Successi0

Un4 2.1: Defin4i0 and terminology
Introduction
• Law of intestate succession: comprises legal rules / norms that determine how succession should take place in cases where a
testator fails to regulate succession on death by way of a valid will or a pactum successorium contained in an antenuptial
contract
• Rules of interstate succession are codified into 2 Acts:
- ISA – applies if deceased lived under common law system
- RCLSA – applies along with ISA if deceased lived under customary law
• A person dies intestate:
- Without leaving a valid will
- Having executed a valid will which has subsequently become wholly or partly inoperative
- With a valid will that fails to dispose of all the deceased’s assets
- Leaving a document purporting to be a will, but which do not comply with formalities for wills and is not condoned in
terms of s 2(3) of Wills Act
• Child’s portion: calculated by dividing deceased’s estate by number of children who have either survived them, or who have
predeceased them but have left descendants of their own, plus number of surviving spouses

Basic concepts
Blood relations
• Descendant: common law descendants include lineal descendants (persons in downward line) of deceased. Customary law
descendants, according to s 1 of RCLSA includes:
- Person who is a descendant in terms of the ISA (common law descendants)
- Person who, during lifetime of deceased, was accepted by them in accordance with customary law as their own child
- A woman who was involved in a substitute marriage or a woman-to-woman marriage
• Ascendant: ancestors of the deceased (anybody in the ascending / upwards line of relationship)
• Collateral line: person who is related to the deceased because they have the same ancestor as the deceased (e.g., full sibling,
half-sibling, niece, nephew, cousin, uncle, or aunt)
- Half-blood: related to deceased through one common ancestor (e.g., half-sibling)
- Full blood: related to deceased through two common ancestors

Parentela / parental
• Parentela consists of a parental group and its descendants
• First parental: deceased and spouse including descendants of deceased (rule 1 – 3). Always inherits first
• Second parental: deceased’s parents and their descendants (first line collaterals), excluding the deceased (rule 4 – 7)
• Third parental: deceased grandparent and their descendants. Blood relations who are closely related in degrees to deceased
(rule 8)
• In first and second parental, distribution takes place per stirpes and representation is allowed (s 1(4)(a) of ISA)
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• In third parental, distribution takes place per capita

• Division cannot take place in more than one parental
• Stirps / stirpes: line of descendants of common ancestry. Includes every
descendant of the deceased who survives them (e.g., Candy), or a
predeceased descendant of deceased who leaves living descendants (e.g., Thomas: Sally:
deaceased Spouse
Anne and Ben).
• Succession by representation per stirpes: occurs when an heir inherits
based on their blood relationship with a predeceased heir of the deceased Anne: Ben:
Candy:
whose place they fill. In other words, in succession by representation, a predeceased predeceased
daughter
daugther son
descendant of a predeceased heir moves up into the place of the
predeceased heir (e.g., Fred, Hank and Gina)
Gina:
• Degree of relationship / consanguinity (per capita beneficiaries): intestate Fred: Son Hank: Son
daughter
estate is divided per capita according to principle that nearest blood
inherits the estate. Important to calculate degree of relationship properly as
to ensure that closest blood relative inherits the estate

Un4 2.2: Rules of Ge Law of InteBate Successi0

Concept of spouse
• Previous position was a narrow interpretation – survivor of a lawful marriage between one husband and one wife
• In post-constitutional era, a wider interpretation is preferred

Currently, definition of spouse in s 1 of ISA includes:

• Survivor of monogamous Muslim marriage – Daniels v Campbell:
- Monogamous Muslim marriage was not solemnised by marriage officer appointed in terms of Marriage Act
- Deceased died intestate
- Court found word “spouse” used in ISA includes surviving partner to monogamous Muslim marriage
• Survivor in Polygamous Muslim marriage – Hassam v Jacobs
- Deceased was married in terms of Muslim rites and concluded second marriage in terms of Muslim rites without
knowledge or consent of first wife
- Deceased died intestate and death certificate stated “never married”
- Executor refused to accept first wife as a spouse
- Court found that exclusion of widow in polygamous Muslim marriage is unconstitutional on grounds of unfair
discrimination
• Survivor in monogamous Hindu marriage – Govender v Ragavayah
- Deceased married in terms of Hindu rites, but marriage was never registered
- Deceased died intestate and executor refused to accept spouse as “spouse”
- Court found that, even though marriage is invalid, survivor is still “spouse” for purposes of intestate succession
• Partner in permanent same-sex life partnership in which partners have undertaken reciprocal duties of support – Gory v
Kolver:
- Court held that ISA was to be read as though “or a partner in a permanent same-sex life partnership in which the partners
have undertaken reciprocal duties of support” appear after the word “spouse”
- But not heterosexual partners who live together but do not wish to formalise relationship in recognised ways (Volks v
Robinson)
• Partner in permanent heterosexual life partnership in which partners have undertaken reciprocal duties of support
- Laubscher N.O. v Duplan and Another:
o Deceased and partner lived together and undertook reciprocal duties of support, but never solemnised and registered
their same-sex life partnership under the Civil Union Act. Deceased passed away intestate
o Majority judgement found that Civil Union Act did not have effect of specifically amending s 1(1) of ISA (new
category of beneficiaries = same-sex partners who entered into registered civil unions)
o Court’s earlier inclusion of permanent same-sex partners within definition of spouse was still operative
o Assessed decision in Volks v Robinson where heterosexual permanent partner was refused right to claim maintenance
from intestate heir of deceased partner
o Majority found that overturning Volks would not offer relief to same-sex permanent partners in case before them, nor
afford opposite-sex partners right to inherit intestate

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o Since Civil Union Act, a “surviving spouse” who was in civil union with deceased person, whether of the same of
opposite sex, and whether in the form of marriage or civil partnership, is considered “spouse” for intestate succession
- Bwanya v Master of the High Court, Cape Town and Others:
o Applicant and deceased were living together, had undertaken reciprocal duties of support, and were planning to get
married before deceased unexpectedly passed away
o CC held that s 1(1) of ISA is unconstitutional and invalid as it excludes surviving partner in permanent heterosexual
partnership from inheriting in terms of the Act
o ISA is to be read as though “or partner in a permanent opposite-sex life partnership in which partners had undertaken
reciprocal duties of support” appears after the word “spouse
• Surviving partners in customary polygamous marriage (see next section)

RCLSA 11 of 2009
• Bhe v Magistrate, Khayelitsa:
- “Spouse” includes surviving partners in customary polygamous marriage
- Declared s 23 of BAA unconstitutional as this section and rule of male primogeniture amounts to unfair discrimination in
terms of s 9(3) of Constitution and right of women to human dignity as guaranteed in s 10
- Extended application of ISA to customary law of intestate succession, leading to promulgation of RCLSA
• BAA was repealed and RCLSA was promulgated and must be read with ISA
• S 3(1) of RCLSA: any reference in s 1 of ISA to “spouse” who survived the deceased must be construed as including every
spouse and woman referred to in s 2(2)(b) = substituted marriage; and (c) = woman-to-woman marriage

“Spouse” – s 3(1) RCLSA and s 2 RCMA “Descendants” – s 1 and s 2(2)(b) and (c) of RCLSA
Includes: Includes:
• Partners in customary marriage in terms of s 2 of RCMA • Person accepted as own child of deceased
• Women in union with deceased male for purpose of • Women in union with deceased male for purpose of
providing children for his house providing children for his house
• Women in union with deceased woman (who is married to • Women in union with deceased woman (who is married to
a man) for purpose of providing children for her house a man) for purpose of providing children for her house

Rules of the law of intestate succession

• ISA is not retrospective – only deals with position of a person who died intestate after commencement (18 March 1988)
• Before 1988, estate dealt with according to old system (common law and Succession Act 13 of 1934)
• If Black person who maintained African customary lifestyle by entering into a customary marriage died intestate before 27
April 1994, their estate would devolve according to repealed s 23 of BAA and relevant regulations under customary law

Overview of rules: s 1(1) of ISA

Rule 1 Rule 4 Rule 8
3rd Parental
1st Parental

2nd Parental

1(1)(a) – spouse(s), no descendants

Rule 2 Rule 5 1(1)(b) – descendants, no spouse
Rule 3 Rule 6 1(1)(c) – spouse(s) and descendants
1(1)(d)(i) – both parents, no spouse or descendants
Rule 7 A B C D 1(1)(d)(ii) – one parent and descendants of other parent
1(1)(e)(i)(aa) – only half-blood siblings Descendants
1(1)(e)(i)(bb) – only full blood siblings of both
Spouse and Parents and their Other relatives 1(1)(e)(i)(cc) – half and full blood siblings parents
Descendants descendants 1(1)(e)(ii) – descendants of one parent only
1(1)(f) – further relations

Rule 1: Deceased survived by spouse / permanent life partner, but no descendants

• S 1(1)(a) of ISA
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• Where deceased is survived by one spouse / permanent life partner, they inherit entire estate (to exclusion of siblings, parents,
etc.)
• Where deceased is survived by more than one spouse, intestate estate must be divided equally among all spouses
- Remember s 3(1) RCLSA
- Until further clarification, deal with them as spouses
• When distributing to spouses / permanent life partners, one must first apply the matrimonial property system to the estate
before dealing with the deceased’s share of the estate
- E.g., married in community of property – spouse receives half and inherits the intestate share
- E.g., married out of community of property with accrual – spouse receives accrual and inherits intestate estate

Rule 2: deceased survived by descendants but no spouse / permanent life partner

• S 1(1)(b) of ISA
• Descendants inherit entire estate per stirpes and / or by representation to exclusion of ascendants and collaterals of deceased
• Descendants inherit per stirpes and representation is allowed according to s 1(4)(a) of ISA
• In terms of s 1(7) of ISA, if child has predeceased the deceased or is disqualified from inheriting, or renounces inheritance,
then share (which they would have received) passes equally to descendants of that child – known as representation ex lege (by
operation of law) and continues ad infinitum
• If deceased is survived by one descendant, only that descendant will inherit the entire estate
• If deceased is survived by more than one descendant, they will each inherit per stirpes (representation is allowed)
• An unborn child of deceased will also inherit along with living children of deceased, if they were conceived before time of
deceased’s death and is born alive (nasciturus fiction)
• See position of adopted children, children born out of wedlock, and children born as result of artificial fertilisation and
surrogate mother agreements (unit 2.3 and 2.4)

Rule 3: deceased is survived by spouse(s) and descendants

• S 1(1)(c) of ISA
• May be further divided according to matrimonial property regime applicable (applicable whether married in terms of the
Marriage Act, RCMA, or Civil Union Act)
- In community of property
- Out of community of property with accrual
- Out of community of property with no accrual
• Amount to which surviving spouse is entitled to is deducted first (thus this amount does not form part of intestate estate of the
deceased) and the residue is the monetary value of the estate
• Share inherited by surviving spouse is unaffected by amount to which they may be entitled to in terms of matrimonial property
laws
• Balance of intestate estate after liabilities are paid is distributed to the surviving spouse and descendants
• Where deceased is survived by one spouse as well as descendants:
- Surviving spouse inherits whichever is greater of either a child’s portion or amount fixed by Minister of Justice (currently
R250 000) (s 1(1)(c)(i))
- The descendants inherit residue (if any) of intestate estate per stirpes and/or representation (s 1(1)(c)(ii))
• Where deceased is survived by more than one spouse and descendants:
- Each surviving spouse inherits whichever is greater of child’s portion or amount fixed by Minister of Justice (R250 000)
- Descendants will inherit residue (if any) of intestate estate
- Where assets of deceased are not sufficient to provide each spouse with amount fixed by Minister, estate is divided
equally among surviving spouses and descendants receive nothing

Rule 4:deceased is not survived by spouse or descendants, but by both parents

• S 1(1)(d)(i) of ISA
• Where deceased leaves no spouse or descendant, but is survived by both parents, they inherit the estate in equal shares
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• Parents include biological, adoptive, and commissioning parents in case of surrogacy of deceased, but not stepparents
• If both parents of deceased are alive, other collateral relations of deceased are excluded from inheriting
• Flynn v Farr: does not include stepparents, because court did not recognise de facto adoption (but remember s 1 of RCLSA)
• Wilsnach v TM: grandmother, as primary caregiver, fulfilled role of parent (full parental responsibilities and rights,
guardianship, father’s guardianship was terminated) thus estate was divided between mother and grandmother

Rule 5: deceased is survived by one parent and descendants of other parent

• S 1(1)(d)(ii) of ISA
• Surviving parent inherits one half of estate and descendants of deceased parent the other half by representation per stirpes
• If deceased parent has no descendants, surviving parent inherits entire estate

Rule 6: deceased is survived by descendants of their parents

• S 1(1)(e)(i)(aa - cc) of ISA
• Where deceased is not survived by a spouse, descendant, or parent, but is survived by descendants of their parents (siblings,
whether full or half-blood), intestate estate is divided into halves
• Estate is cloven into two equal shares with each share going to the side of one of the deceased’s parents
• From there, one half goes to descendants of deceased parent by representation per stirpes
• If deceased is survived only by half-blood siblings, they will inherit a share from the half of estate of parent through which
they are related to deceased (s 1(1)(e)(i)(aa))
• If deceased is survived only by full-blood siblings, they will inherit a share from both halves (s 1(1)(e)(i)(bb))
• If deceased is survived by full and half-siblings, full siblings inherit a share from each half, and half-siblings only inherit share
from parent through which they are related to deceased (s1(1)(e)(i)(cc))

Rule 7: deceased is survived by descendants of one parent only

• S 1(1)(e)(ii) of ISA
• If deceased is not survived by spouse, descendants, or parents, and only one of their predeceased parents left descendants,
those descendants are sole heirs

Rule 8: deceased is survived by further relations

• S 1(1)(f) of ISA
• Where deceased is not survived by spouse, descendant, parent, or descendant of a parent, the nearest blood relation inherits
everything per capita (3rd and further parentals)
• Remember that no representation is allowed in 3rd and further parentals
• To determine the nearest family relation, count the degrees of relationship:
1. Consider all living relations of the deceased who stands to inherit (in this example, Jenny
Dave

it would be Jenny, Ben, and Rob) (Grandmother)

(Predeceased
grandfather)
2. Identify persons who may have already died but who are common ancestors of
deceased and those who stand to inherit Henry Anna
Ben
3. Count the degrees of relationship (uncle)
(predeceased (Predeceased
3.1. For surviving heir in direct line of succession – count degrees of relationship father) mother)

between deceased and common ancestors (e.g., Jenny is 2 degrees in

relationship from Pete) Rob (cousin)
Pete
3.2. For surviving collateral – count degrees of relationship between deceased and (deceased)
common ancestors plus common ancestors and person who stands to inherit
(e.g., Ben is 3 degrees in relationship from Pete; Rob is 4 degrees in
relationship from Pete)
4. Determine who is closest in relation to the deceased (in this case, Jenny is closest in relation to Pete and will inherit per
capita)
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In instance where there are no competent intestate heirs

• Should a person die intestate without having anyone who could inherit their estate, estate is forfeited to state as bona vacantia
(ownerless goods)
• S 35(13) of Administration of Estates Act: executor of estate must hand over any money they are unable to apportion to Master
of HC who will place this money in Guardian’s Fund
• S 92 of Administration of Estates Act: if money placed in guardian’s fund is not claimed after 30 years, it is forfeited to state

Un4 2.3: AdoKed children

• Applicable to rule 2 and 3 of intestate succession
• In terms of s 1(4)(e) of ISA, an adopted child is deemed as being a descendant of their adoptive parents, thus not a descendant
of and cannot inherit from their natural parents and vice versa, unless the natural parent is also the adoptive parent of that child
or was married to adoptive parent at time of adoption (e.g., where stepparents adopt child)
• S 1(5) of ISA provides that adoptive parents shall be deemed to be ancestors of the adoptive child
• Effect of adoption is that it terminates all rights and obligations that may have existed between child’s natural parents and
child placed for adoption
• Child will inherit from adoptive parents as if they were their biological descendant
• Child will also inherit from relations of their adoptive parents as if they were their biological relation (represent their adoptive
parent per stirpes)

Un4 2.4: Children born :t of weOock, artificial fertilisati0, and

surrogate mPher agreements
• Applicable to rule 2 and 3 of intestate succession

Position of children of deceased born out of wedlock

• At common law, child of unmarried parents could not be intestate heir of their father or paternal blood relations, and father and
paternal blood relations could not be intestate heir of their child
• S 1(2) of ISA states that children born out of wedlock can inherit from both their parents

Position of children born from artificial fertilisation and surrogate agreements

• No right to intestate succession between:
- Donor of gametes and child born of artificial fertilisation, unless donor is also husband of woman who gave birth to child
- Child born of surrogacy and the surrogate mother, her spouse, or any blood relation
• There is a right to intestate succession between:
- Surrogate child and commissioning parents and their blood relations only if a valid surrogate motherhood agreement is
concluded
o No agreement – child will only be intestate heir of the surrogate mother and her blood relations
- VJV and Another v Minister of Social Development and Another:
o CC declared s 40 of Children’s Act unconstitutional to extent that it excludes permanent life partners as recipients of
automatic parental rights and responsibilities arising from birth of children born as a result of artificial fertilisation
o Ordered that ‘permanent life partner’ be read in after word ‘spouse’ and ‘husband’ in s 40 of Children’s Act

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Un4 2.5: Ren:ncement by an inteBate heir

Disqualification and repudiation
• In terms of s 1(7) of ISA, if a person is disqualified from being an intestate heir of deceased or repudiates (renounces) an
inheritance, benefit they would have received devolves as if heir had died immediately before deceased died, and as if heir had
not been disqualified or repudiated inheritance (heir is deemed to have predeceased the deceased)
• If disqualified or repudiating heir has descendants of their own, those descendants will inherit by representation the inheritance
which the disqualified heir would have inherited
• If the disqualified or repudiating heir has no descendants, the share they would have received will go to the other heirs of the
deceased according to the normal principles of intestate succession
• Where an heir repudiates an inheritance, s 1(7) must be applied in conjunction with s 1(6) of ISA because s 1(7) is subject to s
1(6)
- If an intestate heir of the deceased repudiates an inheritance and deceased is survived by surviving spouse, the surviving
spouse will inherit the repudiating heir’s share (s 1(6))
- If deceased is not survived by surviving spouse, repudiating heir will have deemed to have predeceased the deceased and
their descendants will inherit by representation per stirpes (s 1(7))
• How s 1(6) applies:
- If descendant renounces their share (NOT when they are disqualified from inheriting)
- and they are of sound mind
- and they are a major
- and we’re dealing with a s 1(1)(c) ISA scenario
- then benefit goes to surviving spouse

Un4 2.6: UnworGiness of an inteBate heir

• In terms of common law, person may not benefit from their wrongdoing (indignus / unworthy)
• If person is disqualified from inheriting, s 1(7) of ISA applies
- Persons who caused the death of the deceased or the coniuncitissimi of the deceased
- Coniuncitissimi: people closest to the deceased (spouses, parents, children)
• “The bloody hand takes no inheritance” – Casey v the Master and Ex Parte Steenkamp and Steenkamp
• Operation of rule is absolute; does not matter whether deceased / coniuncitissimi were killed intentionally or negligently
(beneficiary who commits culpable homicide is equally disqualified from inheriting as a person who commits murder)
• Consequence of disqualification according to s 1(7) of the ISA
- Disqualified heir will be deemed to have predeceased the deceased and their descendants will inherit by representation per
stirpes
- If repudiating heir has no descendants, inheritance will pass to intestate heirs of deceased according to normal rules of
intestate succession

Un4 2.7: Law of InteBate Successi0 and CuBTary Law

• Customary law of succession was abolished to a large extent by Bhe v Magistrate, Khayelitsha followed by the RCLSA
• RCLSA read with ISA will be applicable to intestate estates of black persons who maintained an African customary lifestyle
by entering into an African customary marriage
• Rules of customary law of succession are theoretically no longer in operation, but it is possible for testator to stipulate in their
will that their estate must devolve in terms of customary law of succession

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!eme 3: !e law of TeBate Successi0

Un4 3.1: General principles, wiXs, codicils, any Pher teBamentary
wr4ing
Terminology
• Testate law of succession: comprises legal rules or norms that regulate devolution of a deceased persons estate on one or more
persons according to testator’s wishes as expressed in a will
• Will (s 1 of Wills Act): includes any codicil and any other testamentary writing
• Will: unilateral and voluntary expression of wishes of a testator, in a legally prescribed way that determines what must happen
to their property after their death
• Codicil often refers to an addendum to an existing will (it is still a separate will that has to comply with same formalities as the
main will)
• Wills Act refers to testamentary writing to indicate which documents must conform to formalities required by s 2 of Act
• English Law of the doctrine of incorporation by reference is not a part of law in South Africa
• Ex parte Davies:
- Wills Act does not define meaning of testamentary writing, but court decided that it means a document which describes
any one of three necessary elements of a bequest:
o Identity of property bequeathed
o Extent of interest bequeathed (e.g., ownership, usufruct)
o Identity of beneficiary
- Documents that identifies these elements must thus comply with requirements of Wills Act
• Oosthuizen v Die Weesheer:
- Court decided that sketch plan qualified as testamentary writing and therefore had to comply with same formalities as
will
- Consequently, list of assets for distribution, which are attached to a will, will have no effect if it does not comply with
same formalities required for valid will (because it is testamentary writing)
• Inter vivos trust: trust created during life of creator thereof
- Trust founder enters into agreement with another person (trustee) in which founder undertakes to donate certain assets to
trustee on condition that trustee uses assets for benefit of a third person (trust beneficiary), and trustee undertakes to
receive and hold assets on this basis
- Setting up of an inter vivos trust is not done in compliance with will-making formalities because it is a contract, not a will

Basic requirements for a valid will

Animus testandi
• Animus testandi = intention to make a will
• Testator must clearly state their intentions to make a will and language used must not simply express wishes
• They must not only intend to provide for devolution of their estate, but also have intention of doing so in a will
• Without animus testandi, a will created by a deceased is invalid ab initio (from the onset)
• Possible that lack of animus testandi is due to force or by mistake
• Distinguish between wills made because of fraud / duress and those made while testator was under undue influence
- In case of fraud / duress, will is always invalid because of lack of animus testandi
- In case of undue influence, question is whether influence was such that testator did not have animus testandi, or whether
influence was such that testator no longer expressed their own free will even if they did have animus testandi

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Volition / choice
• If document does not express testator’s own free will, it does not comply with definition of a will and cannot be seen as valid
• Testator must decide completely of their own volition how their estate is to be divided
• Factors that can influence testator’s free will: coercion, fraud, undue influence
• Undue influence only considered after animus testandi has been determined

Testamentary capacity
• As defined in s 4 of Wills Act (see later discussion)

Formalities of Wills Act

• Formalities as required by s 2(1)(a) of Wills Act (as discussed later)

Joint and mutual wills

• Single will: document drafted and executed as a will containing an exposition of testamentary wishes of only one person
• Joint will: if two or more testators set out their respective wills in same document
• Mutual will: where two or more testators draw up a joint will and confer benefits on each other in the same will
• Mutual will is always a joint will, but a joint will is not always a mutual will
• Joint and mutual wills need only be executed once – only multiple testators and two witnesses need to sign the document
• Document is however seen as separate will of each testator, and each testator may unilaterally revoke or amend will with
regard to their dispositions without knowledge of other testators
• Will may be invalid regarding one testator, but valid regarding others

Adiation and repudiation

• Adiation: acceptance of a benefit from estate of testator or deceased either under testate or intestate succession
• Repudiation: rejection of benefit or refusal to inherit a benefit from estate of testator or deceased either under testate or
intestate succession
• Beneficiary is free to either adiate or repudiate any benefit
• Normally no formalities required for adiation
- Exception: when an obligation is attached to benefit or in event of massing of estates, then adiation must be done in
writing (doctrine of election)
- In most cases, adiation is inferred from beneficiary’s conduct and on adiation, beneficiary acquires vested personal right
to claim delivery or transfer of bequeathed benefit from testator’s executor when estate has been wound up
• Repudiation should normally be done in writing
- Exception: if beneficiary does not expressly repudiate a benefit, but resigns themselves to fact that they are not going to
receive something that they were entitled to in terms of a will, such conduct is construed as repudiation
- Courts will however not readily accept that beneficiary loses right to enforce provisions of a will by doing nothing
• If beneficiary expressly repudiates a benefit, it can only be reversed by court if it was made “in excusable ignorance of their
rights”
• Effect of repudiation varies:
- The will can make provisions for substitutes to inherit – direct substitution will take place
- If will is silent, statutory substitution in terms of s 2C(2) of Wills Act can take place
- Accrual may take place and repudiated benefit added to shares of other testate heirs in accordance with right of accrual
- Repudiated benefit may fall into residue of testator’s estate to be inherited by residual heirs
- Repudiated benefit may devolve in accordance with rules of intestate succession if no heir was appointed

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Doctrine of election
• Applicable to all cases where acceptance of a benefit from a will at same time holds a burden or obligation (i.e., modus,
condition) for beneficiary
• Thus, beneficiary must choose to accept benefit which imposes a burden
• Beneficiary may adiate, but is then obliged to accept associated responsibility
• If not possible to adiate partially, benefit must be accepted as a whole
• In cases where choice must be exercised in writing, a written adiation / repudiation certificate must be submitted to Master of
HC together with estate account
• Doctrine plays specific role in estate massing

Un4 3.2: TeBamentary capac4y

Requirements for formal testamentary capacity
• Defined in s 4 of Wills Act
- Testamentary capacity: every person of age of 16 years or more may make a will unless at time of making will they are
mentally incapable of appreciating nature and effect of their act (burden of proof shall rest on person who alleges)

Prescribed age
• Testator must be at least 16 years of age to execute valid will
• Making of a will is a unilateral legal act which is dependent on forming of one’s own volition, thus person under 16 is
incapable of making a will, even with assistance of parent / guardian

Mental capabilities
• Testator, at time of executing will, should not be mentally incapable of appreciating nature and effect of their act
• Only test required to prove testamentary capacity is whether testator had their wits about them (compos mentis) when they
executed the will
• Formal capacity (as provided in the Act) is distinguished from factors that influence free expression of testator’s will (as
recognised by common law – i.e., coercion, undue influence, fraud)
• S 4 of Wills Act creates rebuttable presumption that every person is mentally sane and onus to prove the contrary is on person
alleging lack of mental capacity

Factors that can give rise to mental incapacity

Mental illness
• Smith v Strydom: factors that prove that testator was mentally incapable of executing a will:
- Testator did not understand nature and consequences of testamentary act performed
- Testator did not know or could not remember that they owned bequeathable assets
- Testator did not have mental capacity to distinguish between entitlements of persons to whom they should bequeath
property, nor were they able to judge between these entitlements
• Spies v Smith:
- Factors in Smith v Strydom confirmed and turned into a test for mental incapacity
- Court separated lack of testamentary capacity and lack of volition as two separate grounds for invalidity

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Consumption of alcohol / other drugs

• Person who is so intoxicated or under influence of drugs that they are not in possession of all their faculties, is incapable of
making a will
• Mere fact that alcohol / drugs were consumed prior to making will is not sufficient to show lack of testamentary capacity –
depends on facts and circumstances (Thirion v Meester)

Old age, illness and / or a combination of these factors

• Katz v Katz:
- Applied factors used to establish whether testator had necessary capacity or whether they exercised their volition
- Court found sufficient evidence that testator’s mind was clear enough for him to dispose of his estate in coherent way
- Court applied 2 grounds for invalidity set out in Spies v Smith and found no justification for inference that testator’s
second wife had influenced him in any way
- Court found that formalities had been complied with, and will was valid
• Testator must be of sound mind when they and the witnesses sign will – testator’s mental condition at time of giving
instructions for drafting of will is irrelevant (Essop v Mustapha and Essop)
• Person suffering from mental disorder is incapable of making a will, even if they were not declared insane by court
• Possible for a person who suffers from mental disorder, or who has been declared insane, to make valid will during lucid
interval (lucidum intervallum), but it must be proved that they did indeed experience a lucid interval (Harlow v Becker)
• Because person who has mental disorder or is mentally insane is not capable of making valid will, they must die intestate
(someone else cannot make a will on their behalf)

Customary law of succession

• Person living under customary law has freedom to bequeath customary property if they have capacity to do so
- They must be at least 16 years of age
- They must not be mentally impaired

Factors influencing free testamentary expression

• Kirsten v Bailey:
- Shows interaction between mental capacity and undue influence, and distinguishes factors influencing validity
- Testatrix had made 3 wills shortly before her death
- In terms of the first and third, defendant was only beneficiary
- Wills were contested by her intestate heirs who were beneficiaries under second will
- Testatrix had been sickly almost all her life, and court found that she lacked testamentary capacity when she made all 3
wills
- Court found first and third will to be invalid because defendant had unduly influenced testatrix as she had become
convinced that everyone else had abandoned her and that defendant was going to marry her
• Factors considered in Spies v Smith when determining undue influence:
- Relationship
- Mental state of testator
- Ability to resist
- Period between execution and death

Un4 3.3:Formal4ies in Ge executi0 of wiXs

Introduction
• Execution of a will: process through which testator and other parties comply with all the formalities required to bring a valid
will into existence
• If will is not executed in accordance with formalities of Wills Act, it is invalid, and its contents will be ignored unless a court
orders in terms of s 2(3) of Wills Act that it be accepted as if it had been validly executed
• Formal validity: whether will complies with formalities
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• Substantive validity: whether contents of will are lawful

Formalities in terms of s 2(1)(a) of Wills Act

• Execution formalities required by s 2(1)(a)(i)-(v) of Wills Act:
- Will must be signed at end thereof by testator themselves, or an amanuensis (someone who signs will on behalf of
testator)
- Signature of testator or amanuensis must be made (or acknowledged) in presence of 2 or more competent witnesses
- Such witnesses must attest and sign will in presence of testator and each other, and (where applicable) amanuensis
- If will comprises of more than one page, every page other than last must be signed anywhere on page by testator or
amanuensis
- Where testator signs with a mark, or amanuensis signs for testator, a commissioner of oaths must be present and
certification formalities apply

Method of execution Persons required to be present

Testator signs with own signature Testator and 2 competent witnesses
Testator signs with mark Testator, 2 competent witnesses, and commissioner of oaths
Amanuensis signs for testator Testator, amanuensis, 2 competent witnesses, and commissioner of oaths

Requirement of a written document

• S 2(1)(a) of Wills Act does not expressly require that will should be a written document, but requirement is implied from
stipulation that will must be signed by testator in specified places and from reference to pages in will
• Handwriting, typing, and printing (or combination) are acceptable – one can even write it in pencil (though possibility for
fraud is high)
• Not possible to make an oral will or one in form of a video, DVD recording, SMS, or saved in electronic format as computer
file on hard drive, as none of these comply with signature requirements
• Electronic signature does not constitute as a signature for Wills Act as it is not possible to comply with requirements regarding
where signatures of testator and witnesses must be placed
• Therefore, ECTA does not apply to wills

Meaning of sign, signature, and mark

• Initials: one or more of the first letters of a person’s name used without adding a surname
• Initial / initialling: when a person writes only first letters of one or more of their names on a document. When a person signs a
document comprising more than one page, whether as contracting party, testator, or witness, it is common practice to use
signature on last page and to merely initial other pages
• Definition of ‘sign’ in s 1 of Wills Act: includes making of initials and, only in case of testator, the making of a mark
• ‘Signature’ has corresponding meaning
- This means that initials are no longer categorised as marks and testator, witnesses, amanuensis, and commissioner of
oaths may now sign by means of initials, which does not give rise to certification because it is regarded as signature
- Use of a mark is still reserved for testator alone, and a commissioner of oaths must certify will when used
• Printed letters: when person writes their full name in all capital letters (Ricketts v Byrne)
• Act does not require that a person must sign with their ordinary signature, that a person must sign in same way on every page,
nor that person must sign their full name
• Although initials qualify as signature, use of any other writing that is not person’s name does not qualify as signature in
ordinary sense and constitutes as a mark
• Examples of marks:
- Common and acceptable for testator to write a cross on will
- Use of thumbprint has also received judicial approval
- Other forms such as a descriptor (e.g., “your loving mother”), but this is not recommended

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Where must testator sign

• S 2(1)(a)(i) of Wills Act requires testator / amanuensis to sign at end of the will, which raises issue of where the will ends
• Will consists of words, not paper, and therefore, the will ends at the end of the last paragraph of the writing
• Testator must sign as close as reasonably possible to concluding words of a will, otherwise invalid
• Purpose of strict approach is to prevent fraudulent insertion of words at end of will after testator’s signature
• Kidwell v The Master:
- Court had to consider effect of 9cm gap between end of the writing and testator’s signature
- Such a gap meant that signature was not as close as reasonably possible to concluding words of the will, thus invalid
• Other pages of will can be signed anywhere on pages
• Where will is written on both sides of paper, both sides must be signed

Signature by amanuensis
• Act makes provision for testator who does not, for example, have use of their hands, or who may be illiterate, to execute a will
through medium of amanuensis in s 2(1)(a)(i) of Wills Act
• Amanuensis should sign testator’s name, and not their own to avoid confusion as to identity of testator that may arise if
signature on will is not same as testator’s name recorded in will
• If amanuensis signs with their own name, they should write p.p. (per procurationem) after signature
• Where amanuensis is used, will must be signed in presence of testator, a commissioner of oaths, and usual witnesses and
commissioner of oaths must certify the will

Witnesses to a will
Who is required to witness a will
• S 2(1)(a)(ii) of Wills Act requires 2 or more competent witnesses
• Competent witness: any person above the age of 14 years who is not incompetent to give evidence in a court of law
• S 4A of Wills Act: witness to a will, and their spouse at time of witnessing, lacks capacity to inherit under that will
• A will witnessed by a beneficiary remains formally valid, although the witness / beneficiary is deprived of the inheritance

Meaning of witnessing
• Two aspects to witnessing a will:
- Physical presence while testator or amanuensis signs or acknowledges their signature
- Actual signing of will by witnesses themselves
• Liebenberg v The Master:
- Court held that witnesses need not sign near or below testator’s signature, and may sign anywhere on page
- Witnesses’ signatures may not appear where testator’s signature ought to be at end of will because this would result in
failure by testator to sign in correct place
• According to Karani v Karani, it is contested whether witnesses should sign every page, but it is recommended they do
• Witnesses must sign after testator has signed because they cannot attest to a signature that has not yet taken place
• If witness signs before testator, will is invalid (this cannot be proved by position of witness’s signature on page)
• ‘Presence’ means that witness must be in same room as testator and either see them sign or might have done so
• It is thus not necessary to prove that witness saw act of signing if they were able to have seen it
• Not necessary for witnesses to know contents of a will or that document is being executed as a will

Acknowledging a signature
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• Act makes provision for situation where testator may have signed will in advance by permitting testator to acknowledge their
signature in presence of 2 witnesses
• Testator making a mark, or amanuensis signing will cannot be acknowledged to commissioner of oaths – must be present

Must a will be dated or have attestation clause?

• Attestation clause: final paragraph of will which records and provides evidence of date and place of signature and that testator
and witnesses signed in each other’s presence
• Absence of such a clause does not invalidate the will, but the clause has evidential value
• Where appropriate, evidence may be adduced to contradict information in such clause
• Not a requirement for validity that a will be dated (Thaker v Naran)
• Sterban v Dixon:
- Attestation clause is, at most, a record of how testator and witnesses intended to sign
- Isn’t proof that parties in fact executed the will in accordance with intention expressed in clause

Additional formalities associated with a mark or amanuensis

• When testator signs with a mark or when amanuensis signs for testator, s 2(1)(a)(v) of Wills Act requires that will be signed in
presence of commissioner of oaths who must be present with 2 witnesses
• Magistrates, advocates, attorneys, and police officers are designated as commissioners of oaths by Minister of Justice
• Commissioner of oaths must:
- Satisfy themselves as to identity of testator
- Satisfy themselves that the will signed is the will of the testator
- Make a certificate that they have done so in their capacity as a commissioner of oaths
- Write the certificate on the will by hand, or type or print it on the will, or impress it on the will with a rubber stamp
• Not necessary for commissioner’s certificate to follow precise wording of Act, or for specimen certificate in Act to be used,
but it is advisable
• Statute does not require that commissioner of oaths must record their capacity as such in certificate, but it has been held that
this is a requirement, thus failure to do so invalidates the will (In Re Jennet)
• Commissioner of oaths must make it clear that they act in their capacity as commissioners of oaths and not as attorneys /
advocates even though they might be (Radley v Stopforth and Jeffrey v The Master)
• Commissioner’s certificate may appear on any page of will and commissioner must sign page on which certificate appears by
signing certificate itself, as well as other pages of the will
• Commissioner of oaths and witness cannot be same person, because witnesses must sign in presence of commissioner of oaths
• In terms of Act, certificate must be made ‘as soon as possible’ after will has been marked by testator or signed by amanuensis
• If testator dies before certificate is made, it must be made as soon as possible thereafter

Un4 3.4: C:rt’s p\er to declare a wiX valid (C0d0ati0 of wiX)

S 2(3) of Wills Act
• S 2(3) gives HC power to order Master to accept document which does not comply with execution or amendment formalities
as valid will, if it is satisfied that testator intended defectively executed document to be their will or an amendment to it
• Thus, applicable to non-compliance of s 2(1)(a) formalities and 2(1)(b) amendments
• This is called power of condonation, and this section is referred to as the rescue provision
• Provisions are peremptory, thus if requirements of section are satisfied by proof on balance of probabilities, then Court has no
discretion but to make order directing Master to accept document as valid will
• If requirements are not met, Court has no discretion to make such an order, even if it believes it would be fair and just

First requirement: must be a written document

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• Condonation of oral wills not possible

• No definition of document, but wide interpretation from case law (can include email, letter, computer file, diary entry, and
WhatsApp)
• Van der Merwe v Master of HC:
- Deceased had written email that contained his will and sent it to his friend who was to be his sole beneficiary
- No evidence that he ever printed or executed will before his death – existed merely as data file
- SCA was persuaded that he intended his email to be his will, and made an order in terms of s 2(3)
- Judgement did not discuss fact that will was in form of data file
• MacDonald v The Master:
- Deceased typed his will on his office computer and saved it as computer file without printing it
- Committed suicide and left a note alerting family to existence of computer file containing will
- Security arrangements around deceased’s computer were such that there was no doubt that file had been drafted by
deceased
- Order in terms of s 2(3) was made because, on a flexible interpretation, it may be regarded as having been drafted by him
personally

Second requirement: drafted or executed by testator

• No definition of drafted in Act
o Question is whether testator drafted the will themselves
• Consideration is whether it is possible under s 2(3) to give effect to document that existed only in form of a computer file at
time of deceased’s death
• If rescue provision can be applied to unsigned document, does reference in s 2(3) to a document ‘drafted or executed by a
person who has died’ mean that this can only be done if testator had drafted document personally, rather than using an attorney
or advisor? Initially, courts followed either a strict approach or a flexible approach:
- Webster v The Master:
o Strict approach was followed, and court held that words of s 2(3) refers to document drafted or executed by person
who has died
o Pointed to contrast between wording of s 2A (permits court to complete action of revocation arising from document
that testator had caused to be drafted) and wording of s 2(3)
o Change of wording indicated that s 2(3) calls for conduct of testator personally and does not encompass conduct
through an agent
- Back v The Master:
o Flexible approach was followed, and court granted an order in terms of s 2(3) with respect to document drafted by
testator’s attorney, which had been read and approved by testator who delayed signing it
o Held that difference in wording between s 2(3) and s 2A was not relevant as sections deal with different things
o Acceptance of draft by testator was tantamount to testator drafting it himself, therefore s 2(3) order should be made
- Bekker v Naudé:
o Flexible approach was brought to end when court refused an order in terms of s 2(3) for a will that had been drafted
by a bank official at request of deceased and posted to him, but which he had not executed by time of his death
o Said that strict interpretation was correct because ordinary, grammatical meaning of word must be used unless it
would lead to absurdity, inconsistency, or hardship
o None of these consequences were applicable, thus approval of document drafted by another person was not equivalent
of drafting document oneself
o View strengthened by comparison between wording in s 2(3) and s 2A
o Requirement of document drafted by testator had been included to guarantee degree of reliability by requiring
evidence of personal conduct by testator out of which their intention can be deduced
- Thus, no longer possible to give effect to completely unsigned will using rescue provision, unless will was drafted by
testator in strict sense of personal drafting
• Order granted in Van der Merwe v Master of HC was possible because unsigned will was personally drafted by deceased
• Document composed by testator and dictated to another person who writes or types it qualifies as document personally drafted
by testator
• If document was executed by testator, it will not matter that it was not personally drafted by testator, and it will be possible to
use s 2(3) to give effect to document if formalities have not been strictly followed, if it can be shown that testator intended
document to be their will
• Raubenheimer v Raubenheimer:
- Here there was partial compliance with s 2(1)(a) formalities
- Document drafted by financial advisor and signed by testator, but no witnesses had signed
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- Document can be condoned

• In summary, 2 situations arise:
- Document is drafted by someone on instructions of testator – where there is partial compliance with formalities, it can be
condoned
- Document is drafted but no formalities have been complied with
o Personally drafted: can be condoned
o Drafted by someone else: cannot be condoned

Third requirement: intention

• Must be shown that deceased intended document, at time it was made, to be their final will
• Required degree of finality is not present in case of written instructions given by deceased to attorney, bank, or other advisor,
because testator does not intend that instructions themselves should serve as will, but that further documents that constitutes a
will should be produced for their approval based on written instructions
• Ex parte Maurice:
- Testator had written a draft will and had sent document to a friend who had experience in drafting of wills with request
that friend ‘knock it into shape’
- When testator died before will could be finalised, it was held that s 2(3) order could not be made with respect to draft
prepared by testator because he had envisaged that document might well be changed on basis on friend’s advice,
therefore, he had not intended it to be final expression of his wishes
• Van Wetten v Bosch:
- Vital to pay attention to intention of testator with respect to writing, not merely form that writing takes
- S 2(3) order was granted with respect to letter addressed to testator’s attorney containing instructions for drafting of will
- Testator had left letter in possession of friend with instructions that letter was only to be given to testator’s attorney if
“something happened” (something = death) to testator
- Since it would be futile to give instructions for drafting of one’s will after death, court concluded that letter itself was
intended to function as final expression of testator’s wishes
- Evidence brought to court to show that by time of deceased’s death, he no longer intended letter to be his will
- Evidence was held to be irrelevant to testator’s intention a time he made document and was regarded as inadmissible
• Testator’s intention at time they made document is relevant, thus subsequent change of intention is irrelevant unless it is
manifested in testamentary document or in recognised method of revoking will
• Not necessary to show that testator believed that they succeeded in making a valid will (even if they were aware of will-
making formalities) for purposes of s 2(3)
• Applicant for s 2(3) order does not have to establish testamentary capacity, merely testamentary intention
• Onus of proving absence of capacity once testamentary intention has been established is on person who alleges
• If document is incomplete in sense that it does not contain all testator’s testamentary wishes at time they approve it, it cannot
be said that testator intends it to be their will
• De Reszke v Maras:
- Deceased told an attorney that he was revoking his 1st will and was drafting a new one
- Attorney drew up a final document which was signed by testator and a witness
- However, testator requested attorney to make a new will for him, but he died before this could be done
- When deceased died, his son sought an order declaring new document to be his last will, but claim was dismissed
- Court was not persuaded that testator intended document to be his last will, since testator died before will could be made
- Furthermore s 2(3) of Wills Act requires testator to draft document himself for it to be condoned
• Dryden v Harrison:
- Deceased intended to leave estate to fiancée, and sent an email promising to make her a beneficiary of his estate
- Deceased never got around to drawing up a formal will to that effect
- Court gave effect to old will of deceased, and not email with his intention

Un4 3.5: Formal4ies for amendment of a wiX

General
• Testator is free to alter their will at any stage after execution
• Clauses stating that testator may never amend his will cannot be binding
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• Testator can either make changes or amendments to will:

- Executing codicil which gives effect to changes testator wants to make – then s 2(1)(a) formalities must be complied with
- Amendments can be made to existing will by interfering with writing – then s 2(1)(b) formalities must be complied with
• Definitions in s 1 of Wills Act:
- Amendment: any deletion, additions, alterations, or interlineations made by testator
- Deletion: any deletion, cancellations, and obliterations in whatever manner effected excluding where they contemplate
revocation of entire will (includes acts such as erasing, cutting out, pasting over, or removing with something such as
correction fluid)
• Exception relating to deletion, cancellation, or obliteration which contemplates revocation of entire will was necessary to
preserve testator’s right to revoke their will by destroying it in some way without need to comply with formalities
• Few ways in which testator can amend their will:
- Inserting additional paragraphs into will
- Writing additional words between existing lines of will
- Altering words or numbers in will
- Drawing lines through words, numbers, or whole paragraphs of will to delete them, whether or not new material is
inserted in their place
• Pre-execution amendment: where testator amends will in some way before signing it. Requires no formalities to be lawful
because altered wording is already in place when will is executed
- However, it is recommended that these amendments be signed by testator and 2 witnesses because s 2(2) of Wills Act
provides that any amendment to will shall be rebuttably presumed to have been made after will was executed
• Post-execution amendments: amendments made to will that has already been executed – comply with formalities in s 2(1)(b)

Formalities
• S 2(1)(b)(i)-(iv) – No amendment made in a will shall be valid unless—
- amendment is identified by signature of testator or amanuensis
- such signature is made (or acknowledged) by testator and amanuensis (if applicable) in presence of 2 competent witnesses
present at same time
- amendment is identified by signatures of witnesses made in presence of testator, each other, and amanuensis, if applicable
- if amendment is identified by mark of testator or signature of amanuensis, a commissioner of oaths must certify on will
that he has satisfied himself as to identity of testator and that amendment has been made by or at request of the testator
• Act does not specifically deal with where testator and witnesses should place their signature
- Must be as close as reasonably possible to the amendment; or
- Ex facie identification of signatures must be clearly relevant to specific amendment
• Because amendment is new act of testation, witnesses need not be same witnesses as were present at execution of will
• Certificate by commissioner of oaths must be appended as soon as possible
- If testator dies before this can be done, it must be done as soon as possible after their death
• Failure to comply with requirements of this section will mean that amendment is invalid and given no effect
- Possible to condone it in terms of s 2(3) (3 requirements for condonation must thus be present)
• Smith v Parsons:
- Testator left suicide note indicating how he wanted his will to be amended
- Court found that it was not merely instructions for a re-draft, as testator knew he was going to commit suicide thereafter
- Testator was clearly aware that previous will he had made did not make provisions for his partner, therefore it indicated
that suicide note was his final amendment to his will
- Court gave effect to amendment in terms of s 2(3)
- Court looked at intention of testator, not merely form that amendment took
• Taylor v Taylor:
- Requirement of intention under s 2(3) was again the central issue
- Testator was terminally ill and had drafted and executed a valid will
- Wrote a “wish list” later explaining the division of his estate after his death
- Court decided that wording of “wish list” indicated that it was merely instructions to his family to come together upon
division of estate and ensure it is divided equally, thus court did not give effect to amendment in terms of s 2(3)

Un4 3.6: Revocati0 and Revival of WiXs

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Introduction
• Revocation: act by which testator cancels a will, or part of it, so that it is no longer applicable
• Revocation of wills governed by common law and Wills Act
• Testator is free to revoke their will at any time and may not forgo their competence to revoke their will – 2 exceptions:
- Where a mutual will establishes estate massing, surviving testator who accepts benefit of massing cannot subsequently
alter testamentary disposition of massed assets stipulated in mutual will
- Testamentary provisions contained in a registered antenuptial contract cannot be unilaterally departed from or altered
• Essential elements for revocation of a will:
- an intention to revoke (animus revocandi)
- legally recognised act by which this intention is manifested

Methods of revoking a will

• South African common law recognises 4 methods of revocation:
- destruction of the whole will
- destruction of part of a will
- express revocation (including informal revocation)
- implied revocation
• Courts also have a statutory power to declare a will to be revoked in terms of s 2A when requirements are satisfied

Destruction of whole will

• Destruction of whole will animo revocandi (with intention to revoke) revokes will, and no formalities are required
• Accidental destruction does not revoke will because intention to revoke is absent – effect will be given to destroyed will
- Evidence may be available from persons who have read will or from attorney who prepared it
• Destruction of a will can be physical (e.g., burning or tearing) or symbolic, e.g.:
- defacing writing of will by drawing lines across it
- writing ‘cancelled’ or ‘revoked’ across face of will
- destroying testator’s signature on will
- destroying signature of a witness on will
• Destruction of testator’s signature at end of will would revoke it, but destruction of testator’s signature on an earlier page is
problematic, as testator may have merely intended to revoke particular page – partial revocation will not be recognised unless
rules were satisfied
• Writing ‘cancelled’ or ‘revoked’ in margins would not revoke will because there would be no interference with words of will
- May open way to a declaration of revocation by a court in terms of s 2A
• If act of destruction is on a duplicate original or copy, there must be an explanation as to why testator left a properly executed
original of will physically intact
- Arguably, absence of an explanation suggests an intention that will remains in force

Destruction of part of a will

• A will can be partially revoked by destruction of relevant part animo revocandi
• E.g., drawing lines across a paragraph, cutting a paragraph out with scissors, drawing lines through name of an heir
• Partial destruction can constitute an amendment of will, thus formalities for amendment of wills (s 2(1)(b)) must be complied
with, otherwise revocation is ineffective (possible application of s 2A)
- Some are of the opinion that, if testator only removes a clause, they intended partial revocation, but if they inserted a new
clause, it amounts to an amendment and formalities must be complied with
- Uncertain which position is correct, thus recommended it complies with s 2(1)(b) formalities

Express revocation (including informal revocation)

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• As per Louw v Engelbrecht, a will cannot be revoked orally

• Testator can revoke previous wills by execution of a subsequent:
- Valid will (complying with s 2(1)(a) formalities and containing revocation clause)
- Valid codicil (complying with s 2(1)(a) formalities and containing revocation clause)
- Valid antenuptial contract (in terms of s 87 of Deeds Registries Act and containing revocation clause)
- Revocatory document: document containing no testamentary provision, but only indicates testator’s intention to revoke
(revocation clause) and comply with s 2(1)(a) formalities
• Express revocation also includes physical / symbolic destruction
• Where a revocation clause has been inserted in a signed will without knowledge of testator, evidence is admissible to establish
true intentions of testator – court will order that revocation clause be treated as pro non scripto (as if it had not been written)

Implied revocation
Execution of a later conflicting will
• Execution of a new will does not automatically revoke previous wills – all wills in force at testator’s death must be read
together
• Implied / tacit revocation: where provisions of a more recent will conflict irreconcilably with provisions of an earlier will,
provisions of earlier will are impliedly revoked because of inconsistency with later will
• Pienaar v Master of the Free State High Court, Bloemfontein:
- Key to determining whether two wills are read together seems to be that where later will merely alters some aspects of
devolution of estate (e.g., by adding or removing legacies) then two wills must be read together (unless there are other
indications of a contrary intention)
- Where later will sets out a complete scheme to dispose of testator’s entire estate by appointing heirs and / or legatees, this
indicates that testator intended provisions of earlier will to fall away entirely
- In all cases, search is for testator’s intention as revealed in words of wills read in the light of surrounding circumstances

Ademption
• Revocation by ademption: testator voluntarily alienates a particular asset which they had left to a beneficiary in a legacy –
testator is rebuttably presumed to have revoked bequest of asset
• Alienate: broad term that covers all modes of disposing of an asset, e.g., selling or donating
• If testator acquires assets again, legacy does not revive automatically – will must be executed again

Presumptions concerning the revocation of wills

• If will is found in testator’s possession in damaged state that would be sufficient to revoke will if done with animus revocandi,
it is rebuttably presumed that damage was done by testator with such intention and will is accordingly revoked
• If it is shown that testator’s will was in their possession but, after diligent search following their death, will cannot be found, it
is rebuttably presumed to have been revoked by testator (same applies to duplicate original, and if testator was only in
possession of a copy)
• Presumption is two-fold:
- There was an act of destruction
- This was done with an intention to revoke
• This presumption is rebuttable through evidence, as per Uys v Uys
• Le Roux v Le Roux:
- Evidence that will had been seen on testator’s desk at home a year before his death, but could not be found after his death
- No other evidence as to what had become of will, and it was presumed to have been revoked
• Sansole v Ncube:
- Testator asked his attorney for his will, who mistakenly sent him a copy instead of the original
- Testator destroyed the copy
- Because the testator mistakenly believes that he had the original, the intention to revoke the will was present

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• If will was damaged while in possession of a third party (e.g., testator’s attorney or trustee department of a bank), it is
presumed that destruction was not done with revocatory intention
• It seems likely that position will be same if will went missing while in possession of a third party

Doctrine of dependant relevant revocation

• If testator, believing that they had just successfully executed a new will, destroys their previous will without realising that new
will does not comply with formalities for a will and lacks legal efficacy
- Testator’s revocatory intention is based on a supposition that proves to be wrong – new will is not valid
- Intention is defective, thus destroyed will is not revoked
- Known as doctrine of dependent relative revocation or principle of conditional revocation
• Le Roux v Le Roux:
- Testator destroyed his most recent will in mistaken belief that this would result in an earlier, previously revoked, will
coming into operation once more
- Second will was held not to have been revoked because testator’s intention was based on false supposition
• If testator destroys their will acting on a false supposition, but it can be shown that they still would have destroyed it if they
knew the truth, testator’s revocatory intention is absolute even though it is informed by a false supposition and will is revoked

Automatic lapsing of a will

• S 2B: where testator dies within 3 months of divorce, their will is implemented as if former spouse had predeceased them,
unless contrary intention appears from wording of will or if new will is implemented
• Only provisions concerning ex-spouse are revoked – other beneficiaries still benefit
• JW v Williams-Ashman:
- HC ruled in that s 2B did not infringe right to property under s 25 of Constitution, nor did it deny right access to courts
under s 34 of Constitution
- In SCA, appellant (divorced husband) argued that s 2B deprived him of his right to inherit from his erstwhile spouse in
conflict with what her real intention was, just because she died within three months after divorce as envisaged by s 2B
- SCA dismissed appeal and held that provision has a rational purpose as it can be assumed that divorcees would not want
to continue benefiting their ex-spouses
- Fact that deceased testatrix did not give any indication in her will that she wanted to continue to benefit her divorced
spouse is only indication of her real intention that can be considered
• Louw v De Kock:
- First respondent and her previous spouse executed a joint will in which they nominated the survivor of them as sole heir
- Previous spouse died within 3 months of their later divorce
- Court held that a surviving former spouse can only inherit if it appears from will that deceased intended her to inherit
notwithstanding dissolution of marriage
- In casu, there was no such intention – the will simply provided for longest living to be sole heir of first dying

Revival of wills
• Revival of a will occurs when a previously revoked or lapsed will is given legal force again
• Revocation of a will that expressly / impliedly revoked another, earlier will does not revive earlier will (no automatic revival)
• Re-execution of a revoked will (signing will afresh in presence of two witnesses in full compliance with the will-making
formalities) serves to revive the will
• Moses v Abinader:
- Created confusion as to additional method of reviving a will
- Bench agreed that one cannot revive a will by refencing to it in subsequent document that is executed as a will
- Judges debated over whether it this was possible
o On one hand, method held to be unlawful in RSA because pages of old will are not signed together with pages of new
will, but are only referred to in new will (incorporation by reference) – seen as attempt to evade execution formalities
o On other hand, judge distinguished between revival and incorporation by reference and held that, if required intention
to revive was present, it is permissible to revive a will by referring to it in a later valid will
• Wessels v Die Meester:
- Uncertainty in Moses v Abinader
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- SCA ruled that it is permissible to revive a lapsed or revoked will by referring to it in a subsequent, validly executed will
- Held that revival in this way is not equivalent to unlawful incorporation by reference, because fact that a will has been
revoked or has lapsed does not mean it was improperly executed – original valid execution is a historic fact that does not
fall away
- Court held that revival of a lapsed / revoked will can take place if following requirements are satisfied:
o Lapsed / revoked will must have been validly executed when it was originally made
o Must be incorporated by reference into a new validly executed will
o Testator must have intended to revive the will (must be shown that when testator executed new will, they knew
original will was no longer in force)

Revocation by the court: s 2A

• S 2A is a parallel provision to s 2(3) that empowers a court to complete a defective attempt by a testator to revoke their will
• S 2A: If a court is satisfied that a testator has –
(a) made a written indication on his will or caused such indication to be made (i.e., writing ‘cancelled’ on top of each
page)
(b) performed any other act with regard to his will or caused such act to be performed which is apparent from face of will
(i.e., cutting out a paragraph)
(c) drafted another document or caused such document to be drafted, by which he intended to revoke his will or a part of
it, court shall declare will / part concerned to be revoked
• Because section is peremptory and involves a court in undoing testator’s (original) wishes, held that courts must adopt a
cautious approach in determining that testator intended to revoke their will
• Court can only grant an order in terms of s 2A if there is proof on a balance of probabilities that testator intended to revoke
will (or a part of the will), and that testator, or another person acting on their behalf with their authority, performed one of the
actions described in s 2A(a)–(c) for purpose of revoking the will
• S 2A cannot be used to give legal effect to an oral revocation
• Webster v The Master:
- Testator had marked up changes to his will on a copy of it to show his attorney deletions that he wanted to implement
- Held that will could not be declared to have been revoked by Court in terms of s 2A(a) because writing was on a copy of
will and not original
- However, Court held that the will could be declared to have been revoked in terms of s 2A(b) – debated
- S 2A would seem to require that for purposes of both (a) and (b), conduct on the original will is required
• Marais v The Master:
- Court interpreting common law requirements for revocation of wills treated acts of symbolic destruction carried out on a
copy of will as sufficient to revoke will because they showed what testator would have done to their original will had it
been in their possession
• Thus, for common law revocation by court, destruction / action on a copy of will is sufficient, but for statutory revocation (s
2A), destruction or action must be on original will or duplicate original – courts enjoy a greater leeway in application of
common law rules than statutory provisions
• The ordinary sense ‘will’ does not include a mere copy thereof, thus written indication or other act referred to in s 2A(a) and
(b) must relate to original will or a duplicate original

Un4 3.7: Capac4y to inher4

General
• General rule is that all juristic or natural persons, born or unborn, are competent to inherit either testate or intestate regardless
of their legal capacity
• Capacity must exist at time of delatio
• Animals are not legal subjects, thus there is normally only a moral obligation on someone to take care of animal or to trustees
in trust to care – not inheritance for animal
• Capacity to inherit is ability to acquire a vested right whether or not beneficiary is able to enjoy inheritance
• Distinction between a vested right and the ability to enjoy an inheritance becomes relevant when considering position of, for
example, a minor beneficiary, a beneficiary who suffers from a mental disability, or a beneficiary whose legal standing is
impaired on account of, for example, insolvency
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• Natural persons capable of inheriting:

- Major beneficiary of sound mind with legal standing
- Minors (ability to enjoy inheritance restricted. Administered by guardian under supervision of Master of HC)
o According to s 2D(1)(a) of Wills Act, adopted children are deemed to be born from their adoptive parents
- Nasciturus
- Extramarital children
- Persons of unsound mind (ability to enjoy inheritance restricted. Administered by curator bonis)
- Insolvents (then forms part of insolvent estate to be administered by trustee to benefit of creditors)

Nasciturus (unborn child)

• South African law recognises that an unborn child (nasciturus) is capable of inheriting
• Nasciturus fiction and has been interpreted as follows:
- Child must have been conceived at the time of the devolution of the benefit
- Inheritance must be to the advantage of the unborn child
- Child must be subsequently born alive
• An intestate inheritance usually devolves on death of deceased, therefore, if nasciturus is conceived at time of deceased’s death
and is subsequently born alive, they will inherit their intestate share
- If nasciturus survives momentarily after birth and then dies, they are considered to have been born alive and are capable
of inheriting intestate
o Inheritance that they would have received will be transmissible to their intestate heirs
• For testate succession, s 2D(1)(c) of Wills Act codified nasciturus fiction
• In testamentary succession, time when a benefit devolves can be either conditional or unconditional, thus s 2D(1)(c) refers to a
beneficiary being alive / conceived at time of deceased’s death and at time of devolution of benefit
• A nasciturus who is conceived at time of devolution of a benefit, is subsequently born alive, and who inherits under testate or
intestate succession is in exact same position as a minor beneficiary and is subject to same limitations

Extramarital children
• Under common law extramarital children (those born of incestuous, adulterous, or extramarital relationships) could only
inherit under certain circumstances
• S 1(2) of ISA and s 2D(1)(b) of Wills Act afford such children same status as children born within wedlock when it comes to
testate and intestate succession

Persons disqualified from inheriting

• In terms of common law, a person may not benefit by their own wrongdoing

Unworthy persons / indignus

• Some people are disqualified on ground of unworthiness (onus is on the person who alleges)
• If it would offend against public policy and general principle, that person should not benefit from their wrongful act, and
should not derive benefit from punishable conduct
• Mere fact that person has bad character / behaved badly / ill-treatment does not per se render them unworthy
• Pillay v Nagan – person who forged will of deceased unworthy of inheriting
• Yassan v Yassan – person who hides / destroys will of deceased unworthy of inheriting
• Taylor v Pim – person who allowed testator to live immoral life unworthy of inheriting
- Questioned whether defendant by his own negligent conduct rendered himself unworthy to succeed deceased after he
supplied her with alcohol which caused her death
- Court held that, although defendant did not cause the death, he had allowed testatrix to lead an immoral life and
encouraged her alcohol abuse
- Court found that defendant was unworthy to inherit because of their blameworthy conduct
• Person who unduly influenced testator – will rendered invalid and they are unable to inherit intestate
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Beneficiary who caused death of deceased or their coniunctissimi

• A beneficiary who is responsible for death of deceased or their coniunctissimi is precluded from inheriting either testate or
intestate from deceased
• Coniunctissimi: persons closest to deceased, namely surviving spouse, parents, and children
• According to common law, even a beneficiary who gives assistance or counsel to a killer is disqualified from inheriting
• The operation of ‘bloedige hand’ maxim is absolute – does not matter whether deceased was killed intentionally or negligently
• Someone responsible for death of deceased / coniunctissimi will not automatically be disqualified from inheriting, and Master
does not have authority to disqualify them – an order of court is required
• Ex parte Steenkamp and Steenkamp:
- Argued that, even though common law referred coniunctissimi of deceased only as parents, spouses, and children, list was
not a closed one and could be extended to accommodate legal convictions of society
- Court did not agree; thus brothers, sisters , grandparents, and grandchildren are not deemed coniunctissimi
- Court noted that it could be possible to include grandparents and grandchildren as coniunctissimi of deceased where
grandchildren were raised by grandparents, but was unwilling to rule firmly on this issue
• Casey v The Master: person who negligently caused death is incompetent to inherit
• Danielz v De Wet:
- Mrs De Wet got someone to hire assailants to assault her husband ‘so severely that he would be confined to a wheelchair’
- Court found that she did not intend to kill deceased, or foresee that he would die
- Court found that she took an active role in causing assault that led to death of Mr De Wet, thus she was convicted of
conspiracy to commit assault and to inflict grievous bodily harm upon deceased and assault with intent to inflict grievous
bodily harm
- Court drew attention to bloedige hand maxim and stated that ‘murder was not only crime which led to unworthiness’
- Court stated that ‘grounds are not static and common law should be developed to include those grounds that presently
offend boni mores (public policy) of society’
- Mrs De Wet was unworthy to benefit under the deceased’s will

Persons involved in the execution process

• S 4A(1) of Wills Act provides that any person who signs a will as a witness or as an amanuensis, or anyone who writes out
will or any part thereof in his own handwriting, and person who is spouse of such person at time of execution of will, shall be
disqualified from receiving any benefit from that will
• Will remains valid if these persons are named as beneficiaries, however their share will go to substitute beneficiaries
• S 4A(3) provides that nomination in a will of a person as executor, trustee or guardian shall be regarded as a benefit to be
received by such person from that will and therefore s 4A(1) and (2) also apply to these persons
- Thus, these persons can be a beneficiary of an asset, but only if they are not involved as a witness, amanuensis, person
writing will in their own handwriting, or their spouse at time of execution
• In terms of s 4A(2), disqualification under s 4A(1) is lifted if:
- (a) Court is satisfied that they did not defraud or unduly influence testator
- (b) Disqualified beneficiary would have been an intestate heir, provided that value of benefit which person receives, does
not exceed value of share they would have been entitled to in terms of law of intestate succession
- (c) Will is signed by at least two other competent witnesses (obviously only applies to witnesses and their spouses)
• Regarding s 4A(2)(b), if beneficiary is entitled to more than what they would have received under intestate succession, but
they elect to receive an amount equal to or less than their intestate share, they will also not be disqualified from inheriting
• Brown v Blom: court found that s 4A(2)(a) is applicable to both intestate and non-intestate heirs

!eme 4: FreedT of teBati0 and c0tent of wiXs

Un4 4.1:FreedT of teBati0, C0B4uti0, and P\er of abointment
Freedom of testation, limitations, and influence of the Constitution
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Introduction
• Freedom of testation: freedom of a person to dispose of their estate as they please
• In South African law, testators may decide freely on succession of their estates and may make almost any provision they
please in a will
• Court must enforce provisions of will according to maxim voluntas testatoris servanda est, meaning will of testator has to be
complied with
• HC has no general authority to consent to alterations to a testator’s will against their express intention – court may only rectify
a will in certain specified cases
• Even if all beneficiaries agree to it, Court may not change binding clauses of a will
• Freedom of testation is enshrined in s 25 (right to property), s 10 (right to dignity), and s 9 (right to equality) of Constitution

Limitations on freedom of testation

Statutory limitations
• Freedom of testation is limited by certain statutory provisions
• In terms of Immovable Property (Removal or Modification of Restrictions) Act, a testator cannot prevent alienation of land by
means of long-term fideicommissa or other long-term provisions in their will
- S 6 – 8 provide that such long-term provisions are restricted to two fideicommissaries
- S 2 and 3 indirectly restrict testator’s freedom by providing that court may, on application from beneficiaries, remove any
restrictions on immovable property if it will be to advantage of person entitled to property
• S 33(1) of General Law Amendment Act: HC may consent to alienation or mortgage of immovable property on behalf of
unborn person as if they were a living minor

Common law limitations

• Before the Constitution, will / clause could be void for being contra bones mores
• Today, we have certain constitutional rights
- Certain clauses will be invalid and unenforceable, especially where clause / bequest is linked to grounds in s 9(3) of
Constitution read with s 9(4) and (5) (presumption of unfair discrimination)
• Courts will not enforce conditions in a will that are seen as contra bones mores or against public policy
• Minister of Education v Syfrets Trust Ltd:
- 1920’s will provided that a trust fund be created after testator’s death to provide bursaries for deserving white, non-
Jewish male students who wished to study overseas
- Court stated that freedom of testation has never been absolute and unfettered because restrictions have been placed on
this by common law and statute
- Court held that provision constituted unfair discrimination on s 9(3) grounds and, based on its common law power to
delete provisions in a will that are against public policy, ordered that offending provisions of will be deleted
• Conditions which have frequently been challenged in our courts as possibly being contra bones mores:
- conditions that interfere with a beneficiary’s marital relationship
- conditions limiting a beneficiary’s freedom of movement

Constitutional limitations
• As mentioned in Syfrets case, changes in public policy and what is seen as being contra bones mores are embodied in
Constitution
• S 9(3) lists factors that may not be used to discriminate unfairly against a person
• In terms of s 9(4) read with s 9(3), no one may discriminate unfairly directly or indirectly against anyone on the basis of race,
gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language, or birth
• S 9(4) operates horizontally between all natural and juristic persons
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• S 18 and 21 guarantee a person’s freedom of association and freedom of movement residence

- Possible that provisions prohibiting a person from marrying a person of a certain race or faith, or requiring a beneficiary
to live in a certain place will be regarded as against public policy, and may be found to be invalid

Public charitable trusts administered by publicly funded Higher Tertiary institutions or other trustees
• See Syfrets case as well
• Emma Smith Educational Trust v University of KZN
- Charitable education trust created in 1938 will – eligibility limited to poor European girls of British or Dutch South
African parents who reside in Durban
- University applied successfully to HC to have racially restrictive clause removed and residential qualification amended
- Curators appealed to SCA
o Held that it was constitutionally imperative to remove racially restrictive clauses
o Set aside HC ruling in terms of “Durban” as there was no evidence that this clause would hamper achievement of
fund’s objectives
• Re Heydenrych Testamentary Trust
- Trust for European boys of protestant faith of which at least half must be of British decent
- Order sought for deletion of discriminatory provisions from trust deeds
- Court held provisions constituted unfair discrimination on grounds of race and gender, and conflicted with Constitution
and public interest
• Re BOE Trust Ltd
- Charitable education trust created in 2002 will – bursaries awarded to white South African students with MSc degree in
organic chemistry to study doctorate degree in Europe
- Testator made provisions for ‘substitutions where impossible for trustees to carry out provisions, that certain other
charitable organizations may benefit’
- Freedom of testation is not absolute, and court cannot give effect to deceased’s wishes if there is a rule of law preventing
it from doing so, thus, court gave effect to substitution clause

Complete disinheritance
• King v De Jager
- Only male descendants of two testator’s children were appointed as fideicommissary heirs
- One of children’s female descendants challenged her exclusion (disinheritance) on ground that fideicommissum’s
designation of only “sons” as fideicommissary heirs unfairly discriminated against them based on their gender
- HC:
o Freedom of testation must prevail
o Distinguished between private and public testamentary bequeaths – in public trusts, equality carries more weight
- CC overturned HC decision
o Directly applied Constitution (read with s 8 of Equality Act which prohibits discrimination in terms of gender)
o Provision amounts to unfair discrimination on grounds of gender in terms of s 9(3) and 9(4) – presumption of unfair
discrimination in terms of s 9(5). No distinction between public and private trust deeds / wills
o T does not have to treat family equally – “differentiation or even discrimination that arises from terms of a will does
not violate Constitution as long as it does not constitute unfair discrimination.” (NB this means that you can treat
children differently)
o In casu, there was unfair discrimination in terms of gender – unlawful (against public policy) and unenforceable
• Harvey v Crawford
- Trust deed limited beneficiaries to “legal descendants”
- Adopted children were excluded, thus brought application to have an adopted child included
- SCA:
o Similar reasoning as HC in King v De Jager
o In casu, this is a private trust deed with no provision which affects public / members of the public
o No one has the right to inherit – freedom of testation prevails
• Wilkinson v Crawford
- Appeal from Harvey v Crawford
- Public trusts are subject to stricter scrutiny, but just because bequest is private, does not mean it is not subject to public
policy restrictions
- Differentiation based on birth, which is a listed grounds in s 9(3) for unfair discrimination (s 9(5))

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Delegation of testamentary power / power of appointment to others

• Fundamental rule of law of succession that testator must himself make his will and cannot commit discretion as to who shall
be beneficiaries under his will to others (thus cannot delegate their power to appoint beneficiaries to someone else)
• Exceptions to rule – T may delegate power of appointment of beneficiaries to:
- Trustee of a charitable testamentary trust
- Bearer of an interim right who has beneficial interest in property (i.e., fiduciary, usufructuary)
- Trustee of a family trust who does not have a beneficial interest in trust property, but is granted specific power under
certain conditions

Trustee of charitable testamentary trust

• Testator may authorise a beneficiary, executor, or administrator of their estate to appoint specific beneficiaries
• E.g., “I leave R 1 000 000 to my trustee, X, to be kept in a trust and used for animal conservation”

Bearer of interim right with beneficial interest

• Bearers of interim rights are beneficiaries who only have limited rights to assets of a testator’s estate and who are obliged to
hand assets or certain rights over to other beneficiaries (i.e., fiduciary, usufructuary)
• In past, conferment of a power of appointment was possible only in context of a fideicommissum, but today, power of
appointment may also be conferred on a usufructuary and trustee
• Testator may give bearer of an interim right power to nominate eventual beneficiaries, or to determine what each beneficiary is
to receive, or way they are to inherit
• Fiduciary in fideicommissum:
- E.g., “I leave my house to A. upon his death after mine, the house must go to a person appointed by A in his will.”
- A has interim right and beneficial interest
- A is interim owner, but has limited ownership as they can use and enjoy property, but cannot sell it
• Usufructuary in usufruct
- E.g., “I bequeath a life-long usufruct on house to my wife. She can determine in her will who inherits it after her death.”

Trustee of family trust with no beneficial interest

• It was formerly held that power of appointment could not be delegated to trustee, as they did not have beneficial interest
• In Braun v Blann and Botha, however, Appellate Division held that power to appoint income or capita beneficiaries may be
conferred on a trustee, but with proviso that testator must indicate a specified class of persons from which trustee should
appoint beneficiaries
• Known as discretionary testamentary trust
• Conditions for exercising this power – grantee must:
- Have intention to exercise power
- Exercise power according to will (cannot go outside of group of persons)

Un4 4.2: C0tent of WiXs

Absolute Bequests, Conditions, Time Clauses, Modus, and Massing of Estates
Vesting of rights
• Vesting means that a person becomes holder of a right
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• Date when vesting will take place depends on intention of testator as indicated in will
• Fact that a right has vested in a beneficiary does not necessarily mean that right to enjoy or exercise right already exists
• Vesting consists of two sub-moments:
- Dies cedit – time when a beneficiary obtains a vested right to claim delivery of bequeathed benefit unconditionally
- Dies venit – time at which beneficiary’s right to claim delivery of benefit becomes enforceable
• Dies cedit and dies venit are presumed to arrive immediately on testator’s death

Effect of time of vesting

• Time of vesting (dies cedit) affects whether a beneficiary may transfer rights they have received from testator’s estate
- E.g., with suspensive conditions, dies cedit is postponed – cannot transfer a right you do not have
• Accrual does not operate once a beneficiary’s rights have vested
- E.g., “I bequeath my house to A and B”
o If A dies before T, house may accrue to B (accrual determined by intention of T as appears in his will)
o If A dies after T, accrual will not apply, as dies cedit and dies venit would have occurred for A, so his share will
transfer to his beneficiaries
• Vesting can determine when surplus capital or income should be distributed to trust beneficiaries
• Vesting can determine whether acceleration of interests in cases of repudiation by a beneficiary should take place

Bequests
Bequests

Conditional bequests Absolute bequests

Suspensive Terminative Time clauses

Suspensive Terminative

Absolute bequests
• Absolute / pure bequest: bequest which does not contain any conditions
• Vesting normally takes place immediately on testator’s death (dies cedit and dies venit happen simultaneously)
• Legacy and legatee: Where testator leaves a specific asset to a beneficiary (e.g., house, specific amount of money) bequest is
known as a legacy and beneficiary is called a legatee
• Inheritance, heir, and sole heir: Where a testator leaves their entire estate, a portion thereof or residue thereof to a certain
beneficiary, bequest is called an inheritance and beneficiary is called an heir. If a testator leaves their entire estate to a single
person, they’re called a sole heir
• Difference between heirs and legatees is important for process of administration of estate, as it affects:
- Order of payment: Legacies enjoy preference over inheritances. After executor has paid testator’s debts, they must first
transfer legacies to legatees before transferring inheritances to heirs – if legacies are of equal value to estate after
creditors have been paid, nothing will be left for heirs
- Collation: Heirs may be compelled to collate certain benefits (to account for benefits they received during testator’s
lifetime), while legatees are not obliged to collate
• Pre-legacy: A legacy that takes precedence over all other legacies and inheritances according to testator’s instructions
• Residue / residuary estate: What is left in estate after everything has been paid out or transferred and it includes all bequests
that have failed or lapsed

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When does a legacy lapse

• If effect cannot be given to a legacy, it depends on intention of testator whether legacy will fail or not
• Ademption:
- Ademption: form of tacit revocation of a legacy when a testator voluntarily alienates object of a legacy during their
lifetime, causing legacy to fail
- If testator sells object of a legacy solely for reasons of convenience, ademption takes place
- If alienation of bequeathed asset was not voluntary (e.g., sold asset to pay debts), bequest will not be revoked and executor
will be obliged to purchase asset for estate to implement legacy, or to pay legatee value of asset if it is impossible
- Ademption will not occur if an asset is attached by Sheriff of Court and sold to satisfy a judgment
• Legatee dies before legacy vests in them – beneficiary must be alive to inherit
• Legatee repudiates legacy
• Legatee is incompetent to inherit – e.g., murdered testator
• Bequeathed object is destroyed:
- If object of legacy is destroyed and there is nothing which can be inherited, it is assumed that testator revoked bequest
• Testator’s estate is insolvent:
- There can be no transfer of legacies to legatees because all assets of estate must be used to repay creditors of estate

• When a legacy lapses because legatee is predeceased, repudiates, or is incompetent, legacy devolves as follows:
- According to testator’s provision for substitution in their will
- If no testamentary substitution is possible, statutory substitutions (s 2C(2)) or statutory accrual (s 2C(1))
- If no statutory substitution / accrual is possible, common law accrual
- If common law accrual is not possible, legacy forms part of residue
- If there is no residue, legacy devolves intestate

Time clauses
• Time clause: bequest is subject to an event that will certainly happen in future, although it may be certain / uncertain when it
will arrive
• Suspensive time clause: bequest from which beneficiary will receive benefit is received only at a certain future time
- Beneficiary will have to wait (kept in suspense) until a certain time to receive benefit
- Dies cedit is at moment of testator’s death, while dies venit is postponed
- E.g., “I bequeath my house to V, but she may only receive it when she turns 26”
• Resolutive / terminative time clause: beneficiary’s established rights are terminated when a certain time arrives
- Dies cedit and dies venit is at testator’s death, but terminates upon certain event or at certain time
- E.g., “ I leave my house to D. When she dies or reaches the age of 50 years, it must go to T.”

Conditional bequest
• Conditional bequest: bequest that depends on a future event which is uncertain in sense that it may or may not occur
• Often contain words such as ‘if’ or ‘should’
• To be valid, condition must be clear and possible, and may not be illegal or contra bonos mores, otherwise invalid and void,
and held to be pro non scripto (condition falls away and bequest becomes unconditional)

Resolutive / terminative condition

• Bequest is made to terminate in event of a particular uncertain future state of affairs
• Dies cedit and dies venit is upon death of testator, but terminates if the event occurs
• E.g., “I leave my house to my wife. Should she remarry, it should go to my only son.”

Suspensive condition
• Vesting of beneficiary’s rights is suspended (postponed) until uncertain future event occurs
• Until condition is fulfilled, beneficiary has no transmissible right that would form an asset in their estate on death / insolvency
• Effect is that it postpones dies cedit (and thus dies venit), while resolutive condition (or suspensive time clause) does not do so

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Consequences of corresponding conditional bequests and time clauses

• Suspensive condition usually has a corresponding resolutive condition
• E.g., “I leave my house to B. Should he remarry, it should go to N.”
- Resolutive condition for B (fiduciary), but a suspensive condition for N (fideicommissary)
- Creates fideicommissum
- Fiduciary’s rights are always subject to resolutive condition
- Implication is that fiduciary must pass rights to fideicommissary – rights terminate when condition is fulfilled

Nudum praeceptum / nude prohibition

• Nudum praeceptum: property bequeathed with prohibition, but no substitute provided for if prohibition is contravened
• If a testator bequeaths property to a beneficiary but prohibits them from dealing with property in a certain way (e.g.,
alienation), such a prohibition will only be valid if someone else has been nominated by testator to take property should
beneficiary contravene prohibition
• If no provision is made for a substitute or ‘gift over’ in event of contravention of prohibition, prohibition is called a nudum
praeceptum or nude prohibition and is not legally binding
• E.g., “ I leave my farm to P. He may not leave the farm permanently during his lifetime.” This is invalid because a substitute
must be named

Modus or obligation
• Modus: where bequest subject to a burden or obligation. Qualification added to a gift or testamentary disposition which
requires beneficiary to devote property they received (or value thereof) in whole or in part to a specific purpose
• Does not affect beneficiary’s rights if they do not comply with it – in certain circumstances, beneficiary could be liable to a
personal action if they don’t comply
• E.g., “I leave my house to A, but A must pay B R100 000.”
- A = appointed beneficiary (must accept bequest in writing)
- B = favoured beneficiary

Types of modus
• Modus in interest of beneficiary only
- E.g., “I leave R500 000 to P, to be used to pay for his LLB studies.”
- Beneficiary does not have to carry out burden, and no one will enforce it – only moral obligation
• Modus in the interest of a third person
- E.g., “I leave my house to R, but she must pay her brother R100 000 within three years of my death.”
- Modus involves personal duty in favour of third party (favoured beneficiary)
- Third party has personal right enforceable against beneficiary
- Executor may reclaim bequeathed benefit from beneficiary if they refuse to comply with modus
- This takes place in same way that a property is attached in an execution process – benefit is attached following
enforcement of third party’s personal right
- Possible for persons in whose favour modus was made to ask for security to be furnished by beneficiary for performance
• Modus for the furtherance of an impersonal object
- E.g., “I leave R200 000 to my brother, Y, to be used for the decoration of my grave.”
- Problem is that there is nobody to supervise beneficiaries and ensure performance – merely moral obligation
- Impossible for Master or executor to enforce obligation as they have no rights that may be used to force beneficiary

Difference between modus and a condition

• Suspensive condition postpones vesting of beneficiary’s rights, while modus has no effect on vesting of beneficiary’s rights
• If burdened beneficiary dies before performance of modus, bequeathed benefit still devolves on their beneficiaries – not case
when a suspensive condition is in force
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• Modus will form part of estate of burdened beneficiary – any personal right obtained against deceased by virtue of a modus
may be enforced against their estate by holder of personal right
• Webb v Davis:
- T bequeathed a trading station to son R “on condition” that R pays his brother G, R70 000 in instalments of R10 000 per
annum, and that R register a bond as security for this payment
- R paid for 3 years then died
- G argued that this was a bequest subject to a suspensive condition, which was not met (therefore nothing vested in R and
trading station cannot be transferred to R’s heirs)
- Court stated that intention of testator is to be gathered from terms of will
- Despite fact that T used word ‘condition’, he intended it to be an obligation
- Terms of will: due to fact that R had to take a transfer and commit to a lengthy repayment period, it is unlikely that
testator intended R to only have a mere spes (hope) until he pays R70 000
- Obligation / modus, not condition, thus property transferred to R and now to his heirs

Estate massing
• Estate massing: where 2 or more testators mass whole or parts of their estates into one consolidated unit for purposes of
testamentary disposal
• Disposal becomes effective on death of first dying, but survivor has choice to either adiate or repudiate provisions of joint will
- Thus, massing only occurs after survivor adiates
• Recognised form of election (acceptance of benefit from will holds a burden / obligation)

Requirements for estate massing

• Intention of parties to consolidate their estates
- If intention is not clear and cannot be ascertained otherwise, there is a presumption against onerous provisions in a will
which prevents massing from occurring (Rhode v Stubbs)
• First-dying testator must have disposed of survivor’s share of joint estate as well as of their own
- Where testator has only disposed of their own estate in a will, there is no estate massing (Rhodes v Stubbs)
• Surviving testator must adiate the massing
- Doctrine of election is applicable where acceptance of a benefit in a will holds burden / obligation for beneficiary
- Beneficiary must make a choice – to adiate both benefit and burden / obligation, or to repudiate benefit and burden
- Survivor loses ownership of their assets forming part of consolidated unit (burden), but will get some form of limited
interest in return (benefit)
- Survivor loses their freedom of testation regarding their estate if they accept massing (burden)

How estate massing can be affected

• Usufruct
- E.g., A and B mass their estates and stipulate that upon death of the first dying, whole estate will devolve to T, subject to a
lifelong usufruct in favour of the survivor
• Fideicommissum
- E.g., A and B mass their estates and stipulate that upon death of first dying, whole estate will go to survivor, and on death
of survivor, to their children in equal amounts
• Trust
- E.g., A and B mass their estates and stipulate that upon death of first dying, whole massed estate shall be transferred to a
trust to be administered by trustee. During survivor’s lifetime, they receive an income, and following their death, trust
capital goes to children in equal shares
• Unlimited rights
- E.g., A and B mass their estates and stipulate that family home will go to survivor and rest of estate property to their
children in equal shares
• With usufruct, fideicommissum, and a trust, survivor only obtained a limited right
• With unlimited rights, survivor obtains an unlimited right which they can bequeath at will (common law estate massing)

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Section 37 of the Administration of Estates Act

• S 37 regulates estate massing affected with usufruct, fideicommissum, and trusts, but not unlimited rights
• Regulates estate massing and its effects. Requirements for it to apply:
- There must be a mutual will (does not apply to antenuptial contract or single will)
- There must be two or more persons who are parties to mutual will; they need not be married to each other
- Some or all of property of each testator must be consolidated into a single mass for disposal in mutual will
- Mutual will must give survivor a limited interest in respect of any property in massed estate
o I.e., usufruct, fideicommissum or trust
o Outright bequest of property of first dying which does not form part of massed estate will not be sufficient
- Survivor must adiate bequest
- Disposition must take place on or after death of first dying

Consequences of estate massing

Consequences of adiation
• Survivor is bound to provisions of mutual will and cannot amend / revoke will in future
• Survivor not competent to make subsequent conflicting will
• Can dispose of newly acquired assets after massing has occurred and therefore do not form part of massed estate
• Survivor and other beneficiaries allowed to claim from executor
- Survivor claims usufruct, fiduciary interest, or rights with regard to trust income over massed estate
- Other beneficiaries claim full (nude) ownership in case of usufruct, fideicommissary, or rights regarding trust capital

Consequences of repudiation
• Surviving testator may not receive any benefit whatsoever under will from estate of the first-dying testator
• Surviving testator retains their own estate and may dispose of it in any way they wish
• Mutual will, as will of first-dying testator, relates to estate of first-dying testator only, subject to provision that surviving
testator may not receive any benefit from estate of first-dying testator

Direct Substitution
• Substitution: when a testator appoints a beneficiary to inherit a benefit and, at same time, appoints another beneficiary to take
place of first-mentioned beneficiary either in alternative (direct substitution) or successively (fideicommissary substitution)
• Either by testator themselves or through law of succession (s 1(6) and (7) of ISA and s 2C(1) and (2) of Wills Act)

Bequests

Direct substitution Fideicommissary substitution

- Alternative beneficiaries - Sucessive beneficiaries
- Either one or the other - First the one, then the other

Express direct substitution Implied direct subsitution Implied (conditional)

Express (conditional)
- By testator in will - Ex lege substitution - Si sine liberis decesserit
- Expressly by testator in will
- Expressly - S 2C of Wills Act - Other

S 2C(2) S 2C(1) - Conditonal fideicommissum

-General rule - Qualifies s 2C(2) - Fideicommissum in diem
- Special power of appointment
- Fideicommissum residue

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• Direct substitution / substitution in the alternative: where one or more beneficiaries are instituted in alternative to make
provision for instances where appointed beneficiary:
- has predeceased the testator
- is disqualified from benefiting
- has repudiated the benefit
- cannot take benefit because of non-fulfilment of a condition
• Direct substitution can take two forms: express direct substitution stipulated by testator in will or direct substitution implied by
law (ex lege) in terms of s 2C of Wills Act
• Testators use direct substitution to:
- Avoid benefit devolving in terms of rules of intestate succession (in case of heirs)
- Prevent certain assets from falling into residue of estate (in case of legatees)
- Exclude right of accrual

Express direct substitution

• E.g., ‘I bequeath my house to my friend, David. If David predeceases me, repudiates benefit, or otherwise cannot receive
benefit, the house must pass to my niece, Yolandi.’
• David = instituted beneficiary and Yolandi = substitute beneficiary
• Respective interests of instituted beneficiary and substituted beneficiary are alternative, and mutually exclusive (either one or
the other – not both)
• Sometimes direct substitution and fideicommissary can be confused, especially where substitution is to happen in event of
death of beneficiary – ask yourself whether substitution is in the alternative (direct) or successive (fideicommissary)

Direct substitution implied by law

• S 2C(2) of Wills Act provides that if a descendant, whether as a member of a class or otherwise, cannot inherit (predeceased,
disqualified, renounced) their descendants shall inherit per stirpes subject to provision of s 2C(1) (statutory substitution)
• S 2C(1): if a descendant (excluding a minor or mentally ill) who, together with surviving spouse, is entitled to a benefit in
terms of a will, renounces their right to receive such a benefit, it will vest in surviving spouse (statutory accrual)
• Remember definition of a spouse – permanent life partner is not a spouse

S 2C(2) – statutory substitution S 2C(1) – statutory accrual

Applies to descendants of testator who cannot or do not wish Only applies to a major descendant who is not mentally ill and
to inherit only where such a descendant is ‘together with surviving
spouse of testator entitled to a benefit’ in terms of provisions
of will, and they repudiate their benefit
Descendants can represent or be substituted for testator’s Benefit of major descendant who repudiates their benefit will
descendant where they predecease testator or are disqualified accrue to surviving spouse of testator
from inheriting. Can also occur where they repudiate and s
2C(1) is not applicable
Relates to all descendants of testator and not only children. Applies to all descendants who repudiate, provided they were
Makes provision for class bequests and bequests to a ‘together with the surviving spouse entitled to a benefit’.
descendant directly
Applies only to a descendant and not to other beneficiaries Applies only to a descendant and not to other relatives of
such as ascendants or collaterals of testator testator.
A descendant may be represented only if they would have Uncertainty exists as to when spouse and descendant(s) will
become entitled to a benefit under the will ‘together be entitled to a benefit’. It could refer to them being
mentioned in one will (regarding different benefits) or to them
being mentioned together in respect of a specific bequest
(narrow interpretation). Narrow interpretation is favoured by
most commentators

Fideicommissary Substitution (Fideicommissum)

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• Fideicommissum: occurs where testator directs that a series of beneficiaries are to own their estate one after the other. First
heir is known as fiduciary and succeeding beneficiary as fideicommissary
• Testator thus makes provision for successive beneficiaries (first the one, then the other)
• In fideicommissum simplex, there is only 1 fideicommissary
• In fideicommissum multiplex, there is more than 1 fideicommissary (fiduciary > fideicommissary 1 > fideicommissary 2)
• Requirements for a valid fideicommissum:
- Testator must have intention to create a fideicommissum (Raubenheimer v Raubenheimer)
- Must be a clear indication of fiduciary assets, fiduciary and fideicommissary (clear indication of person in whose favour
restriction on fiduciary’s rights operate, also known as an effective ‘gift over’)
- Fideicommissary condition must be valid
• E.g., ‘I leave my house to my son, Heston. On his death (after mine), it must go to my grandson, Gordon.’
• This characteristic of a fideicommissum (there is always a succession of owners) distinguishes fideicommissary substitution
from direct substitution where either one beneficiary or the other becomes owner, once and for all

Forms of fideicommissum
Fideicommissum expressly created
Conditional fideicommissum / fideicommissum conditionale
• Passing on of property to a subsequent beneficiary is dependent on fulfilment of a condition (an uncertain future event)
• E.g., ‘I bequeath my house to my wife, Veronica. On her remarriage, the house is to go to my son, Wian.’

Fideicommissum in diem
• Passing on of property to a subsequent beneficiary could depend on a future date, definite (e.g., after ten years) or indefinite
(e.g., at death of fiduciary)
• Fideicommissum is subject to a time clause, but it also contains hidden condition that fideicommissary must be alive
• If fideicommissary is not alive when time (definite or indefinite) has lapsed, fiduciary will remain owner and, on their death,
property will form part of their estate
• E.g., “I leave my house to my son A. Upon his death after mine, the farm must go to his son B.”

Special power of appointment

• Testator can confer a special power of appointment on fiduciary to appoint fideicommissary
• E.g., ‘I bequeath my house to my wife, Betty. She must determine which of our children must receive the house on her death
(after mine).’

Fideicommissum residui
• Occurs where property is left to a fiduciary subject to provision that as much of it as may be left at time of their death is to
devolve on another person (fideicommissary)
• E.g., ‘I leave my entire estate to my wife and what is left of it on her death must go to our children in equal shares.’
• Fiduciary has power to alienate fideicommissary property but may alienate only 3/4 of it – other 1/4 must be left for
fideicommissary – unless testator granted fiduciary power to alienate whole of inheritance
• Fiduciary may only dispose of property inter vivos (transfer / gift) and may not dispose of any part of fideicommissary
property by will

Fideicommissum created impliedly

• Arises when, after considering will as a whole (and despite general presumption against fideicommissa), it is clear from
language used that testator wishes to burden disposition with a fideicommissum although testator has not expressly done so

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Si sine liberis decesserit clause

• Testator bequeaths their property to a beneficiary stipulating that if they die after testator and leave no children, property must
pass to another
• E.g., ‘I leave my house to my daughter, Audrey. If she dies without children, the house must go to my son, Luke.’
• Children are tacit fideicommissaries since testator did not expressly provide that house must go to them on Audrey’s death
after that of testator
• Du Plessis v Strauss:
-Rebuttable presumption that testator impliedly appointed children mentioned in clause as fideicommissary beneficiaries, if
they are descendants of testator
- Where children mentioned are not descendants of testator, then mere fact that children are mentioned in condition does
not create a presumption that a tacit fideicommissum was created in their favour – there will have to be other indications
in rest of will that such was intention of testator
• It is possible for a si sine liberis decesserit clause itself to be implied when clause does not appear expressly
- Such an implied clause is usually presumed if fiduciary is a descendant of testator but designated fideicommissary is not
- E.g., “I leave my house to my daughter A. On her death after mine, the house must go to my friend L.
o If A dies, but has children, the house will go to A’s children. If she does not have children, it will go to L

Statutory restriction on the fideicommissum

• S 6 of Immovable Property Act: duration of fideicommissum on immovable property is limited to two successive
fideicommissaries
• S 7: Act has retroactive effect – a fideicommissum on immovable property created before Act came into operation is also
limited to two successive fideicommissaries
• Second fideicommissary may ignore terms of will to extent that they relate to third fideicommissary
• Fideicommissum over movable property is effective for as long as the testator wishes
• Acceleration of benefits – Erasmus v Estate late Booysen:
- If there are two fideicommissaries and first predeceases fiduciary, rights of second fideicommissary accelerates and they
will succeed in place of predeceased first fideicommissary

Legal position of the parties to a fideicommissum

General
Legal position of the fiduciary Legal position of fideicommissary
Becomes owner of property on delivery or registration. Both Right is to receive fideicommissary property, undiminished in
dies cedit and dies venit occur. As owner of fideicommissary value and extent, on fulfilment of fideicommissary condition.
property, fiduciary can use and enjoy it, and keep fruit.
Becomes owner subject to a resolutive condition. Their rights Does not have to be alive at time of testator’s death; may be
will terminate if condition is met, or term arrives. If born generations after testator. They must be alive or already
fideicommissary predeceases fiduciary, fiduciary will become conceived at time indicated by testator as moment for transfer
full owner. of fideicommissary property to them by the fiduciary
Ownership is limited in duration and extent: If they die before prescribed condition is fulfilled,
• As soon as fiduciary condition or term is fulfilled, they are fideicommissum falls away, and unless testator ordered
obliged to transfer property to fideicommissary. otherwise in their will, fiduciary acquires full ownership of
• Because fiduciary’s ownership is limited by right of fideicommissary property and fideicommissary’s heirs acquire
fideicommissary, they may, as a general rule, not alienate no rights.
property or burden it with a mortgage bond, a pledge or grant
of a servitude
Specific nature of fideicommissary’s rights while fiduciary
is still alive
May only alienate or mortgage fideicommissary property with Barnhoorn v Duvenage: after death of testator,
co-operation of all fideicommissaries if they are majors. fideicommissary has a personal right subject to resolutive
Alienation or mortgage is also possible with consent of HC. condition (if they predecease the fiduciary, their personal right
Fiduciary can alienate their fiduciary interest. Although terminates). Before fulfilment of condition or expiry of
fiduciary would pass ownership of property to buyer, fideicommissary term, fideicommissary’s personal right is not

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ownership would still be subject to original resolutive a vested right (would not constitute part of their deceased
condition. estate)
Must use fiduciary property in such a way that it maintains its A fideicommissary can take steps to protect their interest as an
essential qualities until it is transferred to fideicommissary. interested party.
Liable to fideicommissary for damage caused by them. Can
claim compensation for expenses incurred on useful or
necessary improvements to fideicommissary property.

Usufruct
• Usufruct: ownership is bequeathed to one person (dominus / remainderman / nude owner), but right to use, enjoy and take
fruits of property is bequeathed to another (usufructuary)
• Usually lasts for duration of usufructuary’s lifetime
• Personal servitude giving usufructuary a limited real right to use and enjoy another person’s property
• Purpose:
- To ensure usufructuary an income from property for length of time without giving them ownership of property
- Owner / dominus cannot use and enjoy fruits of property for duration of usufruct
- Nude ownership is fully restored once usufruct comes to an end

Difference between usufruct and fideicommissum

Fiduciary Usufructuary
1. Owner of fiduciary asset (real right) 1. Not owner of the asset
2. Ownership is limited in duration (must be transferred to 2. Has a limited real right in property – can use and enjoy
fideicommissary) and extent (use and enjoyment) (therefore, also limited in scope and duration)
3. Can become full owner (e.g., should fideicommissary 3. Cannot become owner. Ownership lies with ‘nude owner’.
predecease fiduciary) If ‘nude owner’ dies, benefit or asset passes to their
beneficiaries in terms of will or intestate succession

Common law accrual

• Accrual / right of accrual (ius accrescendi): right which co-heirs or co-legatees have of inheriting share that their co-heir or co-
legatee cannot or does not wish to receive
• Applies where a co-heir or co-legatee who is not a descendant of the testator:
- is predeceased
- is disqualified to inherit
- repudiates the benefit
- did not fulfil suspensive condition
• Can only operate if there is no provision made for substitution either by testator themself, or ex lege through operation of s
2C(2) of Wills Act
• Difference in application of either s 2C or common law accrual lies in relationship between testator and beneficiaries – if
beneficiaries are not descendants of testator, common law principles for accrual apply

Intention of the testator

• Whether or not common law accrual operates in certain circumstances depends on intention of the testator (Lello v Dales)
• If testator plainly states in their will that accrual must not take place, their intention is clear, and consequences discussed above
will be applicable. Otherwise:
- In event of co-heirs, if testator intended that their entire estate be disposed of by will, accrual must operate
- In event of co-legatees, if testator intended to dispose of benefit as a whole, even if one of legatees falls away, accrual
must operate
- If testator intended benefit, or a share in benefit, to revert back to their estate and therefore to devolve on heirs, accrual
must not operate
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Where testator’s intention is not clear – methods of joinder

• If it is not clear whether testator intended accrual to take place, their (probable) intention must be deduced from will itself or in
surrounding circumstances
• Different modes:
Joinder re tantum (joined by the Joinder re et verbis (joined by the Joinder verbis tantum (joined through
thing) words and the thing) words alone)
Occurs when a person is appointed as Occurs when same property has been Occurs when same thing has been
beneficiary of property in one clause left to different beneficiaries in same bequeathed to different beneficiaries in
and, in another clause, someone else is clause of will without specific shares of same clause in a will, but specific shares
appointed as beneficiary of same property having been allocated to any of have been allocated to specific
property without allocation of shares to them beneficiaries
each
Presumption in favour of accrual Presumption in favour of accrual Presumption against accrual unless
contrary intention appears from will
(Lello v Dales)
E.g., Clause 3 of will: “I leave my house E.g., “I leave my boat to my cousins E.g., “I bequeath the residue of my
to my friend, Albert.” Adam and Ben.” estate to my three brothers in equal
Clause 5 of will: “I leave my house to Adam and Ben joined by words and shares.”
my uncle, Ben.” thing is in one sentence. Presumption in
Presumption of accrual should Ben / favour of accrual
Albert predecease testator.

• Lello v Dales:
- Whether accrual takes place depends on probable intention of testator as determined by will
- Court held that probabilities strongly indicated that testatrix intended accrual to take place despite fact that joinder of
bequests was verbis tantum in form
• Winstanley v Barrow:
- Residue of estate bequeathed in 5 equal shares to 2 daughters and 3 grandchildren
- One grandchild was predeceased, and one was disinherited (thus 3 of the 5 beneficiaries left)
- Court found that descendants are joined verbis tantum
- Court applied presumption against accrual in the case of joinder verbis tantum as a rule
- Criticism: first determined method of joinder and thereafter intention of testator

Other indication of probable intention

• Context of will as a whole
• Presumption against partial intestacy
• Presumption that testator intended equal benefits for their children (where bequest is made to testator’s children, s 2C should
be kept in mind)
• If bequest was made to class in general, presumption of accrual among members of class
• Nature of assets
• Consistency and reasonableness
• If beneficiary remains intestate heir even though they lose testamentary benefit, may be indication that accrual must operate

Testamentary Trust
Introduction
• Inter vivos trust: trust created by agreement during the lifetime of the founder and forms part of law of contract
• Testamentary trust / trust mortis causa: trust created within context of law of testate succession which is established after death
of testator
• Circumstances in which trust can be created:
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- Used by a testator to provide for needs of dependants on their death without their having ownership and/or control in or
over property
- Used by spouses in a joint will to make provision for disposition of assets should they die simultaneously or should
survivor die within a specified time after first-dying.
- Parties to a mutual will, through massing of their estates in terms of s 37 of Administration of Estates Act, can provide
for massed estate to be put in trust thereby conferring upon survivor, as income beneficiary, a limited interest in massed
estate
- Created for beneficiaries with limited capacity or for an impersonal object

Defining a trust
Trust

Trust in narrow sense Trust in wide sense

Testamentary trust / trust mortis causa Inter vivos trust

Ownership trust Bewind Trust

Discretionary trust Non-discretionary trust

• Trust in the wide sense: any legal relationship where one person controls or administers property for another / impersonal
object
• Trust in narrow sense: ownership and/or control in / over property is handed over to trustee for benefit of another / impersonal
object in terms of s 1 of Trust Property Control Act
• Trust Property Control Act only applies to a trust in narrow sense (trusts inter vivos and testamentary / mortis causa trusts)
• Testamentary trusts can be divided into ownership and bewind trusts
• Ownership trusts can be discretionary or non-discretionary trusts regarding income and/or capital
• Ownership trust (s 1(a) of Trust Property Control Act): arrangement in terms if which ownership in property is bequeathed
through trust instrument (will) to trustee to be administered in terms of provisions of will to:
- Specific persons (non-discretionary trust)
- Class of persons (discretionary trust)
- For achievement of impersonal object (charity)
• In case of ownership trust, trustee becomes owner of trust assets in an official capacity – occupies a fiduciary office and, in
this capacity, must exercise their powers for benefit of trust beneficiaries or for impersonal purpose
• Bewind trust (s 1(b) of Trust Property Control Act): Arrangement in terms of which ownership in property is bequeathed in
terms of trust instrument (will) to beneficiary, subject to control of trustee
- Beneficiary is owner, but ownership is limited (trustee administers in terms of will)

Requirements (essentialia) for the creation of a valid trust

• Requirements for creation of a valid trust:
- Creator must have the intention to create a trust
- Intention must be expressed in such a way that a binding obligation for establishing the trust is created
- Trust document must comply with the formalities of a will (s 2(1)(a) of Wills Act)
- Trust property must be determined or determinable
- Trust object must be clear (Braun v Blann and Botha)
- Trust object must be lawful (Syfrets, Emma Smith, BOE, Harvey v Crawford)
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Core elements of a trust

• When a testator creates a testamentary trust, they want to be certain that trust assets and beneficiary’s interests are sufficiently
protected
• Protection is needed in event of, e.g., insolvency of trustee, death and divorce of a trustee, or a trustee acting in breach of trust,
causing damage to the trust beneficiaries
• Core elements of a trust:
- Fiduciary position of trustee: breach of their fiduciary position will amount to a breach of trust which can result in a
trustee being held personally liable
- Separate estates: trustee (in event of ownership trust) holds separate personal and trust estates. Trustee’s private creditors
and trust beneficiaries therefore have claims against different estates
- Principle of real subrogation: proceeds of trust assets (if sold) or substitute assets (if something else is bought with
proceeds) will be subject to trust. Since South African law restricts this principle to lawful replacement of assets, unlawful
replacement of assets must be dealt with in accordance with other private law remedies such as doctrine of notice or
principles of enrichment
- Trusteeship as an office: trust possesses a public element in sense that Master of HC supervises administration of trusts
• Core elements, together with possibility of bewind trust and provision of security in terms of s 6(2) of Trust Property Control
Act, result in sufficient protection for beneficiary

Duties of trustees
• Trustee’s duties are determined by trust instrument, common law, and Trust Property Control Act
- Duties which are laid down by the trust instrument differ from case to case
- Common law and statutory duties of trustee relate to office which they hold – office of trustee places them in a fiduciary
relationship with beneficiaries
- This fiduciary relationship requires that a trustee must always act in best interest of beneficiaries and brings about duties
• Trustee’s most important ex lege duties:
- Trustee must see to lodgement of will, payment of Master’s fees and notice of address
- Trustee must, as soon as possible, acquaint themself with trust instructions and determine nature and extent of their
powers and duties
- As soon as possible after issue of letters of authority, a trustee must obtain effective control over trust property
- Trustee must administer trust in accordance with law and provisions contained in trust instrument
- Whenever a trustee receives money in their capacity as trustee, they must deposit such money in a separate trust account
at a banking institution
- Since trust assets do not form part of trustee’s personal estate, it is important for protection of third parties, (e.g., trustee’s
personal creditors) and beneficiaries that trust property is identified as such and separated from trustee’s personal
property
• Common law duties:
- Take control of trust assets
- Account to beneficiaries
- Avoid conflict of interests
- Act jointly with another trustee
- Study content of trust instrument (will)
- Administration of estates
- Duty to invest
• Liebenberg v MGK Bedryfsmaatskappy
- Question was whether trustees could bind trust as surety and co-principal debtor for debts of a third party
- Court held that terms of trust deed must be read against common law background, namely that, unless otherwise provided
in trust deed, a trustee has no power to expose trust assets to business or farming risks
- Trustee who contends that power is necessary to preserve value of trust property must apply to court for necessary power

Beneficiaries
• Natural or juristic person
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• Must be determined or determinable

• Capacity to nominate beneficiaries from class can be delegated to trustee / income beneficiary
• Income beneficiary can also be capital beneficiary
• In trust with impersonal object, beneficiaries must be selected in accordance with trust instrument criteria by trustee
• Personal right against trustee (fiduciary relationship)

Rights of beneficiaries
• Origin, nature, and extent of a beneficiary’s rights are determined by:
- existence of a fiduciary relationship
- type of trust concerned
- provisions of the trust instrument

Income beneficiary
• Income beneficiary: has rights to income generated by capital owned by trust (designated to receive income from trust)
• An income beneficiary’s right in respect of trust income is mainly determined by nature of the trust, namely whether it is a
discretionary or a non-discretionary trust
• Discretionary trust
- E.g., ‘I bequeath R100 000 to my trustee, Mr Maki, in trust. Mr Maki has discretion to choose the income beneficiary(s)
and the extent of their benefits from my grandchildren.’
- A specific grandchild only acquires a vested personal right against trustee once latter has exercised their discretion in
favour of beneficiary
- Content of personal right is that beneficiary may claim from trustee that income which trustee has awarded to beneficiary
be paid out at destined time
- If beneficiary should die after discretion has been exercised in their favour but before payment has been made, personal
right in respect of income will constitute an asset in their deceased estate which can be exercised by their executor
- Until trustee actually exercises their discretion, beneficiaries only have an expectation of being benefited
• Non-discretionary trust
- E.g., ‘I bequeath R100 000 to trustee, Mr Proudfoot, in trust. The income beneficiary is my wife, Zaza.’
- Zaza obtains a vested personal right against trustee at commencement of the trust
- Content of her personal right is that she may claim payment of income by trustee as soon as it becomes distributable
- Zaza does not have to wait for anything to happen before she receives her income – coming into being of her personal
right is not dependent on any exercise of discretion

Capital beneficiaries
• Capital beneficiary: has rights to underlying assets, or trust capital
• With regard to rights of beneficiaries in respect of trust capital, it is necessary to distinguish between a bewind trust and an
ownership trust
• Ownership trusts
- Provisions of trust instrument will be decisive in determining nature of rights of capital beneficiaries. It will be especially
important to determine whether ownership trust is a discretionary trust, and whether provision is made for direct
substitution
- E.g., of non-discretionary trusts without provision for substitution: ‘I bequeath my assets to my trustee, Mr Kotze, in trust.
The income beneficiary is my wife, Vinny. The capital beneficiary is my son, Bobo.’
- Bobo’s dies cedit = at death of testator, while his dies venit = at death of Vinny
- E.g., of discretionary trust; ‘Trustee Du Preez can choose the capital beneficiary(s), and the extent of their benefits, from
my grandchildren.’
- Dies cedit of grandchildren = at trustee’s discretion, while dies venit = as soon as vested personal right becomes
enforceable (usually occurs on the dissolution of the trust)
- The beneficiary only becomes owner of the trust property when it is transferred or ceded to them
• Bewind trust
- E.g., ‘I bequeath my assets to my child, Zebulon. The assets must, however, be held in trust and be administered for
Zebulon’s benefit by my trustee, Mr Gordon, in terms of the provisions of clause 10.’
- At creation of trust, beneficiary acquires a vested personal right to transfer or cession of trust property to them
- This personal right would normally be enforceable against the executor
- On transfer or cession, beneficiary becomes owner of trust property subject to trustee’s control
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Collation
Introduction
• Collation / collatio bonorum: process where, under certain circumstances, a descendant who received certain benefits (property
or money) from a testator during testator’s lifetime must collate (bring in) such benefit (or its value) before they may inherit
from estate of testator to ensure a fair distribution of deceased estate among all descendants
• Aim:
- Equal treatment of deceased’s children
- Determination of extent of surviving spouse’s estate (married in community of property)
- Where testator has not chosen to benefit children equally: to ensure children benefit portions chosen by testator and that
portions are not upset by substantial benefits given to beneficiaries
• Collation also applies when the heirs are determined by the rules of intestate succession

Who participates in collation?

• In practice, collation takes place only where a person who is entitled to benefit from collation, insists on collation because
executor of estate is usually not aware of benefits given by testator during their lifetime
• Executor who is aware of collatable benefits must give effect to collation, unless there is a waiver by those entitled
beneficiaries or remission of collation by deceased (Estate Van Noorden v Estate van Noorden)
• Deceased is entitled to remit (grant exemption) from duty to collate in favour of heirs during their lifetime. Need not be
specified in will, but can be deduced from conduct and statements of deceased (Thesnaar v Die Meester)
• Creditor of deceased cannot call for collation to increase value of estate that is unable to settle debts fully
• Who is obliged to collate:
- Descendant heirs of deceased
- Who succeeded intestate or would have succeeded intestate if deceased had died intestate; and
- Who repudiates their benefit
• If a person who is obliged to collate refuses to do so, this amounts to a repudiation of their inheritance and they cannot inherit
- Collatable benefit is not physically returned
- Value / amount of it is used in calculations
• Who is not obliged to collate:
- Legatees: value of legacy cannot be reduced through collation
- Ascendants
- Collaterals
- Non-blood relatives of deceased
• Exception: testator can expressly provide that these people are obliged to collate
• Legatee who receives legacy by way of fideicommissum is not obliged to collate, but heir who receives benefit subject to
fideicommissum is obliged to collate
• Grandchildren of deceased are not obliged to collate if their parents are still alive
• Grandchildren of deceased who inherits as an heir in place of their predeceased parent (substitution), and who is, therefore,
subject to duty to collate, must collate not merely what they personally received from grandparent, but also what their parent
received, even if grandchild is not a beneficiary in their parent’s estate
• If grandchild succeeds in their own right, they will be liable to collate only what they had received during deceased’s lifetime
- Estate Van Noorden v Estate van Noorden
• An heir who takes their co-heir’s share by virtue of a right of accrual must collate what their co-heir would have been obliged
to collate had they inherited

What benefits are collatable?

• Following benefits have been identified as collatable by an heir:
- Money or property given as part of their inheritance (in other words, an advance on inheritance)
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- Money or property given for advancement in trade, business or a profession (in other words, to establish or improve
business of heir)
- Money or property given to heir as a marriage settlement (in other words, a dowry or other wedding gift), excluding
expenditure on a child’s wedding
- Other money or property given to heir which is a gift of a substantial nature in relation to donor’s means resulting in
inequitable treatment so far as other heirs are concerned
- Debts owed by heir to the deceased, but extinguished by deceased, by prescription or in some other fashion
o Includes debts that have been extinguished by prescription or discharged by heir’s insolvency and subsequent
rehabilitation, provided that transaction that gave rise to indebtedness was one by which something was taken out of
estate, which was thereby diminished in value
• Benefits that are not collatable unless a contrary intention is shown:
- Normal expenditure on maintenance, education or travel (although expenditure that is totally disproportionate to benefits
enjoyed by other heirs is collatable)
- Remuneratory donations, provided donation is not disproportionately large in relation to services rendered. A
remuneratory donation is one that is not given out of sheer generosity on part of donor, but rather is given out of a sense of
moral obligation in response to benefits that donor has received from donee (e.g., where an elderly parent, who has been
nursed through a long illness by one of her children, rewards child with gift of a diamond ring)
- Simple and unconditional gift, unless it is disproportionately large in relation to donor’s means and results in unequal
treatment of other heirs. In terms of this approach, gifts given to mark special occasions, such as Christmas gifts or
birthday gifts, would not be collatable unless they result in substantial inequality
• Thesnaar v Die Meester:
- If value of collatable gift is greater than beneficiary’s portion of inheritance, they are not obliged to pay difference
- They will receive nothing, and estate is distributed as if beneficiary does not exist among remaining heirs
- Even those who do not participate in collation benefit from fact that balance for distribution is shared among fewer heirs
- Where testator chooses to distribute estate among her children in unequal portions, rebuttable presumption that testator
intended collation to preserve proportion she chose

Collation of debts
• Collation of debts is limited to those debts that bring about an actual reduction in deceased estate
• Collation of debts is not collection of debts
- Executor must collect debts owing to estate from any person who owes estate anything
- Collected debts fall into estate and may be used in favour of all parties with an interest in estate
- Collation of debts usually arise when debts cannot be collected (e.g., owing to fact that extinctive prescription has already
taken place, or debtor is rehabilitated insolvent)
• If debtor is descendant heir, executor can bring about equality among heirs by obliging debtor, who cannot otherwise be called
to account, to collate debt
• Thus, executor must first collect debts – if impossible, they can collate debts

Calculation of collation
1) Calculate each of testator’s descendant heirs’ shares as per usual = amount each descendant heir is entitled to before collation
2) Take sum of each of descendant heirs’ shares (before collation) + all amounts that each descendant heir had received during
testator’s lifetime = collated amount
3) Take collated amount and divide it by number of descendant heirs = equal allocation amount (allocate this amount to each of
testator’s descendant heirs)
4) Subtract any benefits received by each of descendants during testator’s lifetime from that respective descendant heir’s share =
amount each descendant heir is entitled to after collation
5) To check if calculation is correct: sum of amounts after collation should equal to total of descendants share before collation

Example: Tandu made a will in which he bequeathed a legacy of R100 000 to his brother, Ravi, and the residue of his estate to his
3 children, Seth, Jakes, and Melinda, and his granddaughter Penny (Melinda’s daughter). Some years later, after execution of will,
Seth loses his home as part of a divorce settlement and Tandu buys him a flat costing R300 000 so that Seth will have a roof over
his head. Upon Tandu’s death, his estate available for distribution is R1 700 000.

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Balance for distribution 1 700 000

1 To Ravi (legacy and uncle) 100 000
2 To Penny ¼ of the residue ((1 700 000 – 100 000)/4) 400 000

Balance available to collating heirs (1 700 000 – 500 000) 1 200 000
Add amounts to be collated
By Seth 300 000
1 500 000

3 To Seth 1/3 of 1 500 000 500 000

Less amount collated 300 000 200 000
4 To Jakes 1/3 of 1 500 000 500 000
5 To Melinda 1/3 of 1 500 000 500 000
1 700 000

Interpretation and Rectification of Wills

• A will should always be written in clear and unambiguous language – avoid legal jargon
• Comprehensible language will result in fewer interpretational problems
• No matter how carefully a will is written, the possibility of interpretational problems always remains
• For this reason, the law of succession has specific rules for interpreting wills

Golden rule of interpretation: to ascertain wishes of testator from language used

• Golden rule for interpretation of testaments is to ascertain wishes of testator from language used – Court is bound to give
effect to them, unless it is prevented by some rule or law from doing so
• Words that testator uses in will must be primary indication of their intention, and courts are reluctant to deviate from ordinary
and literal meaning of words used, unless it can be shown by clear admissible evidence that testator:
- had not intended those words to bear their ordinary and literal meaning
- had not intended those words to be used and had actually intended that other words be used to convey their intention
• Intention is ascertained by looking at the will itself and, if necessary, other extrinsic evidence, such as:
- Evidence about facts, people, and things
- Circumstances affected by will
- Aliunde evidence
• If words were inserted in will which were not intended by testator to form part of their will, one would have to ask HC to
rectify will – court cannot make new will for testator

Statutory rules of interpretation

Section 2B: ex-spouses
• S 2B of Wills Act: testator’s will shall be implemented as if former spouse had predeceased testator if testator dies within 3
months of dissolution of their marriage (unless contrary intention can be ascertained)
• Because of principle of survivorship, treating former spouse as predeceased deprives them of benefits conferred by will
• Former spouse will be entitled to inherit where it appears from will itself that testator intended to benefit former spouse despite
marriage having ended – testator must have made it clear in their will that they had contemplated possibility of marriage being
dissolved by divorce or annulment, and expressly or impliedly indicated that their spouse was to benefit regardless
• Circumstances outside the will indicating such an intention will not be sufficient to save former spouse’s inheritance

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Section 2D(1): ‘child’ or ‘children’

• S 2D(1) of Wills Act: In interpretation of a will, unless context otherwise indicates –
(a) an adopted child shall be regarded as being born from his adoptive parent(s) and, in determining his relationship to
testator or another person for purposes of a will, as child of his adoptive parent(s) and not as the child of his natural
parent(s) or any previous adoptive parent(s), except in case of a natural parent who is also adoptive parent of child or who
was married to adoptive parent of child at time of adoption
(b) fact that any person was born out of wedlock shall be ignored in determining his relationship to testator or another person
for purposes of a will
(c) any benefit allocated to children of a person, or to members of a class of persons, mentioned in will shall vest in them who
are alive at time of devolution of benefit, or who have already been conceived at that time and who are later born alive
• When interpreting a will, these rules will automatically apply unless testator has expressly or impliedly intended that they do
not apply
• These statutory interpretative rules trump common law rules in so far as there is a conflict between them
• S 2D(1)(a) deals with adoption and creates a fiction of ascendancy and descendancy

Common law rules of interpretation

Ordinary and plain meaning
• Remember golden rule of interpretation
• If words of testator are unambiguous, court must give effect thereto even if testator’s dispositions are ‘capricious,
unreasonable, unfair, inconvenient or even absurd’
• Only where words used by testator bear two or more possible meanings and there is no other evidence suggesting what testator
had in mind, will courts lean in favour of a construction that is rational, convenient, and reasonable
• Words should be interpreted according to their usual grammatical (dictionary) meaning
• Technical terms, such as ‘usufruct’, ‘fideicommissum’ and ‘trust’, should be interpreted in terms of their legal-technical
meaning
• Where words have an ordinary as well as a technical meaning, they must be given their ordinary meaning unless intention of
testator proves otherwise
• It is presumed that every word used by testator is meaningful
• If same word is used many times in a will, it is presumed that testator intended word to convey same meaning on each
occasion that it is used unless context indicates the contrary
• Courts draw a distinction between situations where a person with legal expertise drafts a will as opposed to where a layperson
drafts one
- Layperson: courts are more inclined to deviate from ordinary and literal meaning of words used
- Legal expert: assumed that drafter had a specific intent in mind when employing certain words
o If armchair evidence is brought to show that professional drafter had not followed instructions of testator, court may
be inclined either to interpret will in accordance with testator’s true intention or to order rectification of will,
depending on extent of deviation
• Grammar, punctuation, and paragraphing are considered when determining meaning of words and phrases (value depends on
circumstances of each case)
• Clauses that testator erased or cancelled, and therefore revoked, may not be considered when interpreting a will
• Words and phrases must be given meaning they had at time the will was made
- Since a will applies from moment testator dies, date of death may have to be considered to determine meaning of certain
words
• Even if intention is obscure / unclear, courts are generally inclined to adopt construction which makes bequest effective rather
than null and void
• If court finds it impossible to ascertain what testator meant, disposition will be struck down as invalid on grounds of
uncertainty
• Since charitable bequests are for public benefit, courts treat them differently and try to uphold them as opposed to striking
them down, even if it means taking a rather strained but workable interpretation

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Construction of the will as a whole

• Words, expressions, and clauses should not be read in isolation but against background of full will
• If the will contains a dominant clause, rest of will must be interpreted in terms of it – secondary clauses treated as subservient
• Where conflict arises between clauses, one should try to reconcile them by having regard to scheme of the will
• If conflict cannot be resolved, conflicting clauses will cancel each other out and neither will take effect

Armchair and extrinsic evidence

• Armchair evidence: when court places itself in position of testator during time of making of their will to determine their
intention
- This type of evidence is always admissible, even when there is no ambiguity or uncertainty
- E.g., age, state of health, habits, level of education, family structure, etc.
• Extrinsic evidence /evidence aliunde: evidence obtained elsewhere and not from will itself – surrounding circumstances (other
than armchair evidence) in which the will was made
- If wording of a will is clear, extrinsic evidence to prove a contrary intention of testator is inadmissible
- May only be led when provisions in will are obviously ambiguous or uncertain, and intention of testator must be
determined by means other than wording of the will
- Permissible, for example, when capacity of testator or beneficiaries is disputed, or to determine illegible words
- If extrinsic evidence is not available to clear up uncertainties, unclear part must be regarded as pro non scripto – whether
rest of will is implemented depends on circumstances of each case
• Application of words in will to external facts may lead to latent ambiguity in 2 forms:
- Equivocation: words may be equally applicable to 2 persons or objects
- Words cannot apply with certainty to any known persons or objects
• Extrinsic evidence is admissible to solve both these types of ambiguity
• Direct statements made by testator about their intention will only be admissible for equivocation

Implied provisions
• If testator drafts will so inelegantly, can become necessary for court to read words into will to make will stand
• Reading words into will is not tantamount to implying bequests into will, as courts are generally not empowered to imply
bequests
• Test for reading words into a will:
- Deduction or implication must be a necessary implication which does not lend itself to a contrary intention
- Deduction or implication must be in accordance with contents of will

Legal presumptions
• When intention of testator is not clear from will or any other way, courts may employ presumptions constructively to interpret
wills
• Webb v Davis: court may only refer to relevant presumptions once it has attempted to determine testator’s intention from will
itself and surrounding circumstances

Presumptions:
• Writing or typing prevails over standard form wills
- Occurs when wills have fill-in-spaces or with when testator uses standard form will to write his own will
- When there is a conflict between typed or written part and printed part (standard form will), there is a presumption that
typed or written part reflects intention of the testator
• Presumption against intestacy
- If a person has drafted a will, there is a strong presumption that they intended to die testate despite principle that a person
may die partly testate and partly intestate

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- Unless it appears clearly from will that testator has failed to deal expressly or impliedly with a portion of their estate, it is
presumed that testator had intended will to govern their entire estate and not just a portion of it
• Ambulatory nature of a will
- Ambulatory: something that can be changed, altered, or revoked
- It is presumed, unless there is a contrary intention in will, that vesting takes place, beneficiaries are to be ascertained, and
capacity of beneficiaries to inherit is to be determined only when testator dies
- Reason for this is that testator has power to amend or revoke the will until their death
- There are circumstances when date the will was executed is determining date (e.g., determining testamentary capacity)
• Presumption against disinherison and inequality
- Presumption against unequal treatment by a testator of their descendants (children and grandchildren) and presumption
against disinherison of children
- If testator wants to exclude their children, they need to be quite specific in this regard or presumption against disinherison
will work in favour of children
- Webb v Davis
• Immediate vesting, acceleration of benefits, finality of institution, maximum benefit, and minimum burden
- There is a presumption that a testator intended vesting of an inheritance to occur on their death and did not intend it to be
postponed, unless they created a conditional bequest
- It is also presumed that they did not intend to create a fideicommissum and would have intended an unconditional bequest
- Where there is uncertainty as to whether testator intended to create a fiduciary or usufructuary interest, there is a
presumption in favour of a fiduciary interest
- If a usufruct is bequeathed to an intermediate beneficiary, but will fails to state who is to be ultimate beneficiary,
presumption is that it was intended for intermediate beneficiary also to be ultimate beneficiary
- This is unless it is clear that testator had not intended to give intermediate beneficiary anything more than a life interest in
property
• In absence of clarity of intent, conditions will be interpreted restrictively to impose least burdensome result on beneficiaries
because there is a presumption in favour of freedom as opposed to restraint, convenience as opposed to inconvenience and
reasonableness as opposed to unreasonableness
• Where there is doubt as to whether a restriction attached to a bequest is a condition or modus, there is a presumption in favour
of a modus

Variation of wills
• General rule is that courts will not vary a will which is capable of being carried out
• If stipulation is clear, effect must be given to it, even if it results in a loss of profit
• Instances where courts will permit a variation:
- Where circumstances of a case make it practically impossible or utterly unreasonable to fulfil the testator’s intentions
- Where strict enforcements of testator’s directions would result in a failure of testator’s bequests or would result in
testator’s intentions being frustrated
- Where testamentary mechanisms mentioned in will are unable to realise intentions of testator and/or would result in
severe loss to estate
- Where circumstances of a case demand a departure from the will
- Where testator makes dispositions, but dispositions are based on mistaken assumptions about testator’s assets or liabilities
• To justify variation, an applicant would have to show a change of circumstance, not contemplated by deceased, causing
prejudice to estate and/or beneficiaries
• Courts do not have discretion to vary a will to rectify an illegality
- Where a testator makes a stipulation that is invalid because it is illegal (in terms of statute or common law), court cannot
vary terms of will to make it legal
- Stipulation will fall away without affecting rights of beneficiary to inheritance
• When it comes to charitable bequests, courts are more inclined to vary terms of the will to meet general objectives of testator
as it is in public interest for such bequests to yield best possible results as opposed to being hamstrung by conditions which are
difficult to carry out
Rectification of wills
• Rectification of a will must be distinguished from its variation or amendment
- Testator may amend or vary their will at any time before their death as long as they comply with relevant formalities

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- Court will rarely vary or amend a testator’s will, but may do so in a few limited cases where it is authorised to do so by
legislation
- By contrast, rectification entails correcting clerical errors or adding or deleting words that were omitted or inserted by
mistake (perpetrated either by testator or a third party who drafts will), or because of duress or undue influence
• Rectification can thus only be effected by a court and in three ways:
- by correcting a clerical mistake or typing error
- by deleting words
- by inserting words
• To perform a rectification, court would have to be satisfied on a balance of probabilities that a will does not reflect true
intentions of testator, and evidence would have to be presented as to what their intention was
• Henrique v Giles:
- Married couple instructed an audit firm to draft a will for each of them
- Wills were prepared and both parties were satisfied with their respective wills
- Husband erroneously signed wife’s will and vice versa
- Court used rectification to give effect to husband’s will
• Will v The Master:
- Husband had 2 children from previous marriage and 6 children with current wife
- Legal question was if words “our children” meant 6 children born from testator’s marriage to applicant, or does it also
include 2 children born from previous marriage
- Executor in liquidation and distribution account only included 6 children and children from previous marriage objected to
this
- Master sustained objection
- Court looked at actual language used in will and not what was allegedly intended at time will was drafted
- Executor applied for order to set aside master’s decision and order that will be rectified by addition after words “our
children”
- Court considered facts that testator moved away from old family and started new one in SA (armchair evidence)
- Court found that “our children” only referred to 6 children between testator and new wife

Interpretation Rectification
Definition Ascertaining intention of testator as expressed in Correction of a mistake in will by court after death of
will and giving effect to it testator
Evidence Statements made by testator during their lifetime Statements made by testator during their lifetime is always
is permissible in certain circumstances only permissible

!eme 5: Successi0 by c0tra.

Introduction
• Pactum successorium: contract in which parties attempt to regulate devolution of entire or part of assets of one or both parties
• Generally, not accepted in South African law and is invalid
• Contra bones mores because it limits testator’s freedom of testation inter vivos and power to amend / revoke will, and amounts
to attempt to circumvent formalities necessary for execution of valid will
• E.g., We, Anton and Ben, hereby agree that the survivor will be the first dying person’s only heir

Identifying invalid pactum successorium

Tests
• Revocability test
- Testator cannot sign away their capacity to revoke
- If promissor reserve right to revoke their offer, agreement will not be contrary to general rule that succession may only take
place ex testament or ab intestato
• Restriction of freedom of testation

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- Contract in terms of which testator is not allowed to dispose of their property in a will is a restriction of their freedom of
testation and is thus invalid
• Intention test (McAlpine v McAlpine)
- Intention of parties to contract and not nature of right is dominant feature of agreement
- Parties did not intend to make a will and agreement did not interfere with freedom of testation
• Vesting test
- If rights are vested in beneficiary inter vivos, even if execution is postponed until after death, agreement is not pactum
successorium
- If rights vest after death, it is pactum successorium
- Van Aardt v Van Aardt:
o 2 brothers entered into postponed contract of sale, which stated that B1 sells his farms to B2 or B2’s descendants
o Effective date of sale was at death of B1
o B1 later concluded conflicting contract of sale with 3rd person, and B2 applied to court for interdict against sale
o Court applied vesting test, and found that provision amounts to invalid pactum successorium
o Identity of purchaser can only be determined upon death of B1, which is also date of payment of purchase price and
date upon which rights of purchaser may be exercised and enjoyed
o Interdict was thus rejected

Pactum de non succedendo

• Invalid contract in terms of which a person contracts to renounce their hope or expectation (spes) of inheriting from another
• Narshi v Ranchod:
- Pactum de non succedendo is manifestation of pactum successorium and is thus invalid
- Criticism: no basis for legal invalidity of such contract in terms of policy
- Contract does not limit freedom of testation and is not an attempt to evade formalities

Exception: Valid forms of pactum successorium

Donatio mortis causa
• Donatio mortis causa: donation aimed at death of donor and must comply with formalities laid down for a will
• Although it deals with transfer of property from one person to another, it is a contract
• There is an offer from donor which is accepted by a donee
• Characteristics:
- Death of the donor must be contemplated
- Governing motive for the gift must be pure benevolence
- Gift may be revoked at any time

Antenuptial contract
• A pactum successorium in an antenuptial contract does not make it a will – does not have to comply with testamentary
formalities
• Forms:
- The spouses benefit each other mutually or one benefits other
o Agreement can only expressly or by means of inevitable implication be revoked or amended by spouses’ joint will
o If joint will is revoked, pactum successorium revives
o Unilateral revoking by one of spouses by making a new will is not possible
- The spouses agree to benefit a third party
o If third party is a party to agreement, revoking is only possible with their permission
o If third party is not a party to agreement, rules that ordinarily apply to agreements in favour of a third party are
applicable
o If spouses agree to a revoking capacity or where third party has not yet accepted benefit, agreement can be modified
by means of a joint will
o If third party has already accepted benefit, revoking is only possible with their permission
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!eme 6: AdminiBrati0 of eBates

Uniform rules for the administration of deceased estates
• Administration process is multifaceted approach – Administration of Estates Act 66 of 1965 is most important
• Other important Acts:
- Deeds Registries Act
- Estate Duty Act
- Intestate Succession Act
- Wills Act
- RCMA
• Process of administering a deceased estate starts day testator dies

Estate
• For purpose of the administration of estates, we speak of a ‘deceased estate’
• Deceased estate consists of assets and liabilities of a deceased person at time of their death
- Includes property and any debts that deceased incurred before their death
• Estate duty: all property of deceased at time of death and all property deemed to be property according to s 3 of Estate Duty
Act at time of death, including:
- Proceeds from domestic policies on life of deceased
- Payment from pension funds, retirement annuity funds, or other funds
- Donation made in anticipation of death by deceased (donatio mortis causa)
- Accrual claim acquired by deceased in terms of s 3 MPA
- Shares allotted to deceased by any family property
• Residue of estate: part of deceased’s estate which remains after funeral expenses, all debts, taxes, administrative fees and other
administration costs, maintenance claims and all legacies have been paid out
• Should assets exceed liabilities, deceased estate is solvent, and should it be vice versa, estate is insolvent and must be executed
as prescribed in Administration of Estates Act

Executor
• Administration of Estates Act defines executor: person who is authorized to act under letters of executorship granted or signed
and sealed by a Master
• One of two situations may prevail:
- Executor testamentary: testator might have nominated an executor in a valid will, in which case Master will appoint
nominated person as executor after they have completed an acceptance of executorship
- Executor dative: if deceased died without a valid will or did not nominate an executor, Master will appoint an executor
who has completed an acceptance of executorship
• S 18(3): If gross value of estate is less than R250 000, it is possible to appoint someone who is not an executor to administer
estate
• Testator may give nominated executor power of assumption (power to appoint a co-executor / agent to assist with winding-up
of estate)
- Power of attorney, except in estate duty return
• Certain persons, for example minors, are not qualified to be appointed as executors
• Executor must provide security regarding proper performance of their duties, but a testator may exempt them from obligation
- Master determines amount of security which must be provided – usually value of assets in deceased estate
- S 23: Certain persons are automatically exempted from giving security, e.g., a parent, spouse, or child of deceased
- Bond of security = costs from estate

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Duties
• Preliminary – interviews, documents (ID, title deeds, share certificates, marriage certificate, firearm licences, vehicle
registration papers, life insurance policies etc)
• Report estate: death notice within 14 days and accompanied documents (see phase 1 of administration process)
• Upon receipt of Letters of Executorship from Master:
- Take control of estate assets. Safeguard assets
- Advertisements (notices) in GG and local newspaper in terms of s 29 to all creditors (and debtors) to submit claims or pay
any amounts due to estate within 30 days. Later, also notice that liquidation and distribution account is lying open for
inspection for 21 days
- Open estate cheque account moment he has R 1000 at hand
- Other: Complete income tax return; finalise valuations (amounts to be reflected in money column in liquidation account);
determine whether estate is solvent or insolvent; payment of possible interim advances (maintenance) to certain persons in
terms of s 26(1A)
- Can (but not obliged in terms of s 35(12)) pay estate liabilities
- Can award bequests, but not obliged to do so before liquidation and distribution account has lain open free from
objections s 35(12) – if estate has insufficient cash to pay liabilities, assets will have to be sold, and only assets which
remain are subject to distribution
• Submission of liquidation and distribution account (see phase 2 of administration process)
• Objections against account (see phase 2 of administration process)
• Decide on method of liquidation

The Master
• Administration of Estates Act defines Master: Master, Deputy Master or Assistant Master of a HC appointed under s 2, who
has jurisdiction in respect of that matter, property, or estate and who is subject to control, direction, and supervision of Chief
Master
• Appointed by Minister
• Master normally has jurisdiction over estate of a deceased who was ordinarily resident within area of jurisdiction of that
Master’s office, but it is also possible for a Master to assume jurisdiction of a particular estate if requested by a person who has
an interest in deceased estate and with consent of Master who has jurisdiction
• Master’s fee:
- Estates below R250 000: No fee
- Estates between R250 000 – R400 000: R 600 fee
- From R400 000, a further R200 for every R100 000 of estate value
- Max: estate value of R3.6 million and more: R7 000 fee

Functions
• Supervision process: make sure executors follow correct procedure, inspect liquidation and distribution account
• Quasi-judicial function:
- Pronouncing on objections lodged against liquidation and distribution accounts
- Decision on validity of will (acceptance of wills)
- Interpret correctness of executor’s account
- Steps against executor, i.e., removal, remuneration, compliance
• Advisory function: advise executors with regards to winding up of estates
• Administrative function: handling and filing documents
• Discretionary function: acceptance and rejection of wills
- S 18(3) Administration of Estates Act:
o If value of any estate does not exceed amount determined by Minister (currently R250 000), Master may dispense
with appointment of an executor and give directions as to way such estate shall be liquidated and distributed
o Shortened process
o No master’s fees, liquidation and distribution account, or notice to creditors, and not subject to Master’s control
- S 38 take-over:
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o Master may authorise executor, subject to security being given for payment of any minor's share, and to conditions as
Master may determine, to make over any property of deceased, or any part of his property in respect of which he has
made no testamentary provision to contrary, to surviving spouse at a valuation to be made by an appraiser or any
other person approved by Master. Requirements:
§ one of two spouses, whether they were married in or out of community of property, has died
§ deceased has made no provision to contrary in any will
§ major heirs and any claimants against estate consent
§ it appears to him that no person interested would be prejudiced thereby
- S 35(2A):
o Master may in respect of liquidation and distribution account direct executor to submit to him within a period
determined by him vouchers in support of account or any entry therein as he may require for purpose of performing
his functions in connection with examination or amendment of account
o May request vouchers before admitting estate liabilities

The administration process

• Administration process can broadly be divided into 3 phases:
- 1st – starts on death of deceased and involves steps which must be taken until an executor is appointed
- 2nd – process of administration that culminates in submission of a liquidation and distribution account to Master of HC
- 3rd – begins when account has been approved and certain final requirements are met

Phase 1
• Starts when someone dies leaving any assets or any document purporting to be a will
• First step is to report death of testator to Master by completing death notice document within 14 days (done by surviving
spouse, nearest relative or person in control of place where death occurred)
• Usually executor (to be appointed) will do this task
• Executor will conduct an interview with family of deceased as soon as possible to obtain necessary information and documents
• To report deceased estate to Master, they must complete following documents to send to the Master, with original will (if there
was one):
- death notice
- inventory of estimated values
- acceptance of executorship
• While executor awaits their letter of executorship, they may continue with certain tasks, i.e., obtaining valuations for assets
and establishing liabilities of the deceased estate

Phase 2
• Begins when the letter of executorship has been issued
• Letter entitles executor to administer deceased estate, in other words to continue with winding-up process
• Remember duties of executor
• Distribution of assets occasionally causes conflict between beneficiaries, which can delay winding-up of estate, thus executors
usually choose a method of liquidation in consultation with beneficiaries and next of kin
• Important to have knowledge of nature of assets in estate, debts of estate, provisions of will (if there is one), and how practical
it is to carry out estate plan
• There are five methods of liquidation:
- Awarding and handing over of specific assets (in specie / as it is to beneficiaries)
o Beneficiaries receive their benefits in a specific form and not in an alternative form such as cash
o E.g., testator bequeaths their farm to their son. Son will receive farm itself – farm will not be sold, and son will not
receive proceeds of farm after it has been sold by executor
o This form of liquidation is preferable, especially if it was instructed in will and there is enough cash on hand to pay
liabilities of estate
- Partial sale
o Executor sells some of assets to meet liabilities of estate
o Applied in circumstances that make it necessary, e.g.,
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§ a shortage of cash to pay the liabilities of the estate

§ instructions in will that certain assets have to be sold
§ where nature of an asset is such that it cannot be divided between multiple beneficiaries, and it would be easier
to sell asset and divide proceeds
- Total sale
o Executor sells all assets in estate
o Should only be applied in exceptional circumstances
o Applies when a testator instructs a total sale in their will or if circumstances, such as a cash deficiency, necessitate it
o Could also be done at request of all beneficiaries, e.g., when they prefer to receive cash instead of assets
- Taking over by surviving spouse in terms of s 38
o Not necessary for surviving spouse to be a beneficiary in terms of will
o Under exceptional circumstances, surviving spouse may take estate over at an amount determined by an appraiser
o Subject to discretion of Master – remember requirements
o Master will only give consent to taking over once required security has been provided
o Method could ensure finalisation of an estate where it is difficult to divide it, and that continuity of estate is
maintained
- Redistribution agreement
o Possible for beneficiaries to conclude an agreement regarding redistribution of assets in estate
o Popular when beneficiaries want to divide property in a different way than determined in will or where beneficiaries
of an intestate estate want to renounce co-ownership of assets in favour of individual ownership of specific assets
o Could also be considered if a family living under a system of customary law wants to give effect to rules of
customary law of succession
o Agreement must be submitted to Master for approval and special requirements must be met in case of minor
beneficiaries
o Formalities for these contracts are that they must be in writing, signed by parties and dated

• S 35: final liquidation and distribution account must be submitted within 6 months after letter of executorship has been issued
by Master
• Regulation 6: If executor is unable to submit account in time, they must apply in writing to Master for an extension of date –
application must state:
- reasons why account cannot be submitted on time
- steps taken to advance submission of account and what progress has been made
- what progress has been made with liquidation of estate
- what financial position of estate is (in other words, status of bank account)
- whether or not estate is solvent
• Executor must certify at end of account that it is a true and proper reflection of liquidation and distribution of estate
• Account is then submitted to Master for approval and must lie open for public inspection (at Master’s office and magistrates’
office of district where deceased was resident before their death) for 21 days
• Fact that the account is lying open for inspection must be advertised in Government Gazette and a local newspaper
- Creditors can lodge objection with Master, who sends it to executor
- Executor must comment within 14 days and Master will evaluate – if not satisfied, matter will go to Court (s 35)

Phase 3
• Begins when final liquidation and distribution account has been approved by Master
• Before this can happen, executor must fulfil final requirements of liquidation of estate including:
- proof of advertisement
- certificate of magistrate
- proof of payment of Master’s fee
- proof of payment to creditors and cash legacies
- proof of delivery of legacies and inheritances
- obtaining the final bank statement with a zero balance
• After executor has done final tasks, they are entitled to their discharge, also referred to as obtaining a filing slip from Master

Liquidation and distribution account

• Regulation 5 of Administration of Estates Act prescribes formalities of account – must contain:
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- heading
- liquidation account
- recapitulation statement
- distribution account
- income and expenditure account
- fiduciary assets account
- estate duty addendum
• 8 Formal requirements / elements for this account

Heading
• Must contain: number of account; full name, surname, and identity number of deceased; date they died; marital status of
deceased; details of surviving spouse and Master’s reference number
• E.g., First and final liquidation and distribution account in the estate of deceased Amanda Little, ID number 7301036759083,
who was married in community of property to John Little, ID number 6604180105080, ordinarily residing at 10 Creek street,
Hatfield, Pretoria, and deceased 28 May 2022. Master’s reference number 712/23

Money column
• Regulation 5(1)(b): in practice, most executors make provision for a double column on right-hand side of account (one for
subtotals and other for grand totals)
• Value of each asset or group of assets grouped together, e.g., household items, livestock, or proceeds of assets sold by executor
during execution process (partial sale)

Liquidation account
• Regulation 5(1)(c) is of importance
• Contains assets and liabilities of deceased – most important part of account
• In assets column, distinction is made between immovable property, movable property and claims in favour of estate
- Total sum of these assets reflects gross value of estate
• Value of assets must be reflected in money column
• Value that must be reflected depends on mode of liquidation that has been chosen
- If assets were a specific asset awarded and handed over, value of assets must be reflected
- If executor sells property, proceeds must be reflected in money column
• Liabilities column contains administration costs, claims against estate and estate duty (if any) payable by estate
- Administration costs: banking costs, advertisements (notices), executor’s remuneration (3,5% of gross value of estate),
Master’s fees, cost of valuation, transfer costs, bank costs, funeral expenses
- Claims against estate: creditors, accrual claims by surviving spouse
- Estate duty: amount transferred from estate duty addendum, thus, in practice, one must 1st complete estate duty
addendum before amount of estate duty can be completed here)
• Each exhibit (voucher, receipt or quittance) that forms part of liquidation account must be numbered
- Number must be reflected in liquidation account next to the particular asset
• The exhibits in support of account need not be sent to Master; they must remain on file as Master may require them at any time
• Executor must indicate how they intend to deal with assets that have not been realised (divestment note)
• The balance (assets minus liabilities) is the amount to be distributed

Recapitulation statement
• Regulation 5(1)(d) is of importance
• Purpose is to reflect cash position of estate
• Total of all cash found in estate (see claims in favour of estate) and proceeds of assets sold (as per liquidation account) minus
total liabilities (as per liquidation account) and any cash legacies

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• If there is a cash deficit, it must be met by applying the right method of liquidation
• If there is a cash surplus, it must be divided among the residuary heirs

Distribution account
• Regulation 5(1)(e) is of importance
• Reflects balance available for distribution among beneficiaries and details of how it must be distributed among them
• Distribution in terms of
- Stipulations of will
- Intestate succession – s 1(1)(a)-(f) of ISA
- Redistribution agreement (must be attached to distribution account)
- S 38 take-over
• Same as divestment note after each asset in liquidation account
- Full names of heirs
- Major / minor
- ID
- Brief detail of property included in every award
- Reason for every award / condition

Income and expenditure account

• Regulation 5(1)(f) is of importance
• Reflects income and expenditure incurred after death of the testator
• Deductions, such as executor’s fee, must be reflected here
• If there is a balance, it must be distributed among beneficiaries

Fiduciary assets account

• If testator enjoyed a fideicommissum during their life, such a fiduciary right must be reflected in fiduciary assets account
• This account is actually an account within an account
• Executor must give a description of fiduciary asset, and must reflect all income and expenditure relating to asset
• Balance must be distributed among fiduciary heirs

Estate duty addendum

• Regulation 5(1)(h) is of importance
• Reflects calculation that determines amount of estate duty payable
• Must be done in terms of Estate Duty Act
• Net estate = Gross value (property in terms of s 3(2) as per liquidation account, excluding proceeds of life insurance policies
AND property deemed to be property in terms of s 3(3) – this includes life insurance policies) minus allowable deductions in
terms of s 4 (liabilities before estate duty and all benefits to surviving spouse)
• Estate will not be accountable for estate duty if net value is less than R3. 5 million. Amount with which your estate exceeds
R3. 5 million will be taxable for estate duty at 20% (dutiable amount)

Certificate
• Regulation 5(1)(i) is of importance
• Consists of a statement by executor that account is a true and proper account of administration of the estate
- Best of knowledge + true and fair reflection
- If it is the final account, all assets and liabilities after death are reflected
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- If not final account, give particulars of assets that are not liquidated and explanation
• Must be dated and say where it was signed (e.g., Pretoria)

Example of account
Assets:
- House: Erf 202 Bela Bela, Valuation: R 2 000 000
- Farm: Portion 6 of the Farm Morning side, Market Value: R 2 000 000
- Furniture and Household Effects: Valuation R 100 000
- Farming Equipment: Valuation R 1 000 000
- Motor Vehicle Nissan Primera: Valuation R 200 000
- R 50 000 balance in cheque account A123 with Standard Bank
- Rembrandt Shares (listed) – sold for R 100 000
Other:
- Proceeds of Life Insurance Policy X, payable to the estate: R 1 000 000
Liabilities: Claims against estate plus admin costs (excluding executor’s fee and Master’s fee)
- Creditor A: R 500 000

T’s will
- Clause 1: Farm and farming equipment to son, S
- Clause 2: To wife, V: House; furniture and motor vehicle
- Clause 3: To Daughter, D: The residue
First and Final Liquidation and Distribution Account in the Estate of the late John Doe, Identity Number: 123456789, who resided
at 12 Smith Street, Pretoria and died there on 1 August 2018. Married out of community of property without accrual system.
Master’s Reference Number: 123/2018
Liquidation Account

ASSETS Debit Credit

Immovable Assets
1. Erf 202 Bela Bela, Registration Division J.R. Limpopo Province, 1 2 000 000
held by Deed of Transfer No. T123/1999
At valuation
(Awarded to surviving spouse in terms of clause 2 of the Will)
2. Portion 6 of the Farm Registration Division J.R. Limpopo 2 000 000
Province, held by Deed of Transfer No. T789/2000 Market value
(awarded to son in terms of clause 1 of the Will)
Moveable assets
3. Furniture and Household Effects 3 100 000
At valuation
4. Farming equipment 4 1 000 000
At valuation
5. 2015 Nissan Primera Motor Vehicle 5 200 000
At valuation
Claims in favour of the Estate
6. Proceeds at Standard Bank cheque account number A123 50 000
Collected
7. Proceeds of 1700 listed Rembrandt shares 100 000
Collected
8. Proceeds of Life Insurance Policy X 1 000 000
Collected
TOTAL ASSETS 6 450 000
LIABILITIES
Claims against estate

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9. Creditor A 6 500 000

Administration Costs
10. Executor’s Fee at 3,5% of R6 450 000 222 750
11. Master’s Fee: Maximum 7 000
Estate duty 0 See estate duty
addendum
TOTAL LIABILITIES 732 750
TOTAL ASSETS 6 450 000
AVAILABLE FOR DISTRIBUTION 5 717 250

Recapitulation Statement

Cash Assets: Debit Credit

Proceeds of Standard Bank cheque account number A123 50 000
Proceeds of 1700 listed Rembrandt shares 100 000
Proceeds of Life Insurance Policy X 1 000 000
1 150 000
Liabilities
Total liabilities (admin + claims against + estate duty, if any) 732 750
Cash Legacies NIL
(none indicated in Will)
CASH surplus (to be awarded to residuary heir, daughter D) 417 250

Distribution Account

Available for Distribution 5 717 250

1 Surviving spouse, in terms of clause 2 of the Will (house; 2 300 000
furniture, motor vehicle)
Son: Farm and implements 3 000 000
Daughter: Cash surplus 417 250

Income and Expenditure Account

Income
Nil 0
Expenses
Nil 0
Executor Remuneration 6% of Income 0
Notes
Excess income awarded to surviving spouse as sole residual heir
in terms of clause 1 of the Will
Fiduciary Asset Account
Nil

Estate duty addendum

Property as per Liquidation Account (excluding policy) 5 450 000

Plus Property deemed to be property (Policy) 1 000 000

GROSS VALUE OF ESTATE 6 450 000

Less allowable deductions:
- Liabilities (claims against + admin costs) 732 750
- All bequests to spouse 2 300 000

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NETT VALUE OF ESTATE 3 417 250

Less s 4A Rebate 3 500 000
Dutiable Amount 0

Estate duty Payable (20% of Dutiable Amount) 0

Amount transferred to Liquidation Account 0

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