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ERF Exam Notes PNP - Edited-2

The document provides an overview of the law of succession in South Africa, detailing the distribution of deceased estates, types of succession (testamentary, intestate, and by contract), and the relevant legislation governing these processes. It discusses the dual character of succession law, influenced by colonialism and customary law, and outlines the complexities of applying choice of law rules in cases of conflicting rights. Additionally, it covers the administration of estates, the impact of recent court rulings, and key terminology related to succession.

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0% found this document useful (0 votes)

61 views127 pages

ERF Exam Notes PNP - Edited-2

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karabo.tsukudu1

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Pass and Prosper 1

ERF 222 EXAM NOTES 2024

Chapter 1
General Overview
Background ❖ Deceased Estate: When someone dies, their estate, known as the
"deceased estate," must be distributed among their heirs according to
the rules of succession.

❖ Law of Succession: Determines how the deceased estate is

distributed, including identifying beneficiaries and the extent of their
inheritances.

❖ Types of Succession:
➢ Testamentary Succession (Successio ex testamento): Based on a
valid will (discussed in Chapter 3 onwards).
➢ Intestate Succession (Successio ab intestato): Applies when there
is no valid will (discussed in Chapter 2).
➢ Succession by Contract (Successio ex contractu): Occurs through a
contract or agreement (discussed in Chapter 14).

❖ Common Rules: Some rules apply to both testamentary and intestate

succession, such as the capacity of a beneficiary to inherit.
❖ Specific Rules: Some rules only apply to either testamentary or
intestate succession (e.g., accrual applies only to testate succession).

❖ Estate Administration: The process of administering deceased estates

is governed by specific rules discussed in Chapter 16

❖ Relevant Acts: Several Acts are crucial for the law of succession and
estate administration, including:
➢ Administration of Estates Act 66 of 1965
➢ Black Administration Act 38 of 1927
➢ Children's Act 38 of 2005
➢ Children's Status Act 82 of 1987
➢ Civil Union Act 17 of 2006
➢ Constitution of the Republic of South Africa 200 of 1993 (Interim
Constitution)
➢ Constitution of the Republic of South Africa, 1996
➢ Immovable Property (Removal or Modification of Restrictions) Act
94 of 1965
➢ Intestate Succession Act 81 of 1987 (See Appendix B in the book)
➢ Law of Evidence Amendment Act 45 of 1988

Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass
and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
Pass and Prosper 2

➢Maintenance of Surviving Spouses Act 27 of 1990

➢Marriage Act 25 of 1961
➢Matrimonial Property Act 88 of 1984
➢Recognition of Customary Marriages Act 120 of 1998
➢Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009 (RCLSA) (See Appendix C in the book)
➢ Trust Property Control Act 57 of 1988
➢ Wills Act 7 of 1953 (See Appendix A in the book)
Law of Overview
succession in the ❖ Material rules of succession determine the distribution of a deceased
legal system person's estate, beneficiaries, and their inheritance, operating in the
private sphere.
❖ The administration of estates involves formal rules for liquidating a
deceased estate, with the Master of the High Court involved in the
process.
❖ Despite the involvement of a public office, the law of succession
remains part of private law.
❖ South African succession law is a mixed system, influenced by Roman-
Dutch and English law.
❖ It is also pluralistic, incorporating elements of Western and African
customary law.
❖ The system reflects a blend of historical legal traditions and modern
statutory reforms.

❖ Differentiate between the Law of Succession and Administration of

Deceased Estates
➢ Law of Succession deals with who inherits and in what proportion.
➢ Administration of Deceased Estates deals with how the estate is
managed, debts settled, and assets distributed.
Dual character of Overview
the law of ❖ Colonialism significantly impacted the development of general law and
succession the law of succession.
❖ Customary law was not recognized during early Dutch and British
occupations.
❖ After the second British occupation in 1806, some recognition of
customary law began.
❖ The Black Administration Act of 1927 consolidated colonial laws,
managing indigenous affairs but treating customary law as inferior to
common law.
❖ Modern South African law is a mixed system influenced by Roman-
Dutch, English, and customary laws.
Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass
and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
Pass and Prosper 3

❖ Customary law in South Africa is defined by various Acts and includes

the customs traditionally observed among indigenous African peoples.
❖ South African law of succession consists of two branches: common
law (testamentary and intestate) and customary law (only intestate).
❖ Although common and customary laws have equal status, customary
law must be compatible with the Constitution and can be amended by
legislation.
❖ The applicable law (common or customary) for a deceased estate is
determined by choice of law rules from statute or judicial precedent.
❖ Customary law is not unified; conflicts between different customary
laws are governed by specific rules in the Law of Evidence Amendment
Act.
❖ The primary difference between common and customary succession
laws lies in their societal and economic purposes, with customary law
focusing on preserving the family unit and common law focusing on
wealth transfer and individual property rights.
Choice of law The problem of conflicting rights and obligations
rules ❖ The South African legal system often involves overlapping or conflicting
rights and obligations, requiring courts to use choice of law rules to
determine the applicable law.
❖ This process is part of the legal discipline of choice of law or
interpersonal conflict of laws, which can be challenging to apply due to
difficulties in deriving rules from statute and judicial precedent.
❖ Before 1994, common and customary systems of succession were kept
separate in South Africa.
❖ Specific statutes regulated the succession of black people's property,
with the Black Administration Act restricting their ability to dispose of
certain property through wills.
❖ House property had to follow customary law, while quitrent land
followed statutory tables similar to customary law. Only family and
immovable property not qualifying as house property could be
disposed of by will, applying common law of succession.
❖ The Intestate Succession Act did not apply to estates governed by
section 23 of the Black Administration Act, which instead followed
special regulations.
❖ Succession laws were linked to the deceased's marital status; common
law applied to those married in community of property, while
customary law applied to those with customary marriages.

❖ Law of Succession as Objective Law

➢ As part of Objective Law: The Law of Succession is classified as part
of the objective law because it sets out the legal norms that apply to
inheritance matters, providing a framework for how estates should
be handled after death.
➢ As part of Private Law: Within the framework of private law, the Law
of Succession specifically governs the private rights and
responsibilities of individuals concerning inheritance, making it a
subset of private law.

Testate law of succession

❖ If a valid will exists, the choice of law rules are straightforward.
❖ Customary law did not originally include the concept of a will; in its
absence, common law of succession applies.
❖ A testator can specify which law should apply using the common law
notion of freedom of testation.
❖ Determining whether common or customary law applies can be
complex.
❖ Customary law acknowledges a family head’s deathbed wishes and
property allocations but does not use wills.
❖ Conflicts can arise when interpreting vague clauses in wills, such as
"my children," which may differ between common and customary law.
❖ The common law principle of reading documents in light of
circumstances at the time of drafting (armchair evidence rule) applies,
considering customs and culture of the testator.
Intestate law of succession
❖ If a deceased person dies without a valid will, determining the
applicable law is complex.
❖ Historically, statutory rules governed succession, such as section 23 of
the Black Administration Act and section 1(4)(b) of the Intestate
Succession Act, which excluded certain estates.
❖ Regulations under the Black Administration Act provided specific
choice of law rules for individuals under customary law who died
intestate.
❖ The RCLSA, enacted on 19 April 2009 and effective from 20 September
2010, modifies customary law of succession, mandating that intestate
estates of those subject to customary law devolve according to the
Intestate Succession Act if no will is present.
❖ The RCLSA includes provisions for resolving disputes about the
application of customary law by giving jurisdiction to the Master of the
High Court or a magistrate.

❖ Despite these provisions, estates may still be distributed informally by

families, with formal authorities only consulted in cases of significant
disagreement, making it difficult to predict the practical application of
the Intestate Succession Act.

❖ Bhe v Magistrate, Khayelitsha

➢ The Constitutional Court made significant changes to choice of law
rules for intestate estates under customary law.
➢ The Court declared section 1(4)(b) of the Intestate Succession Act,
section 23 of the Black Administration Act, and associated
regulations unconstitutional and invalid.
➢ As of 15 October 2004, the Intestate Succession Act must be
applied to all intestate estates, regardless of the deceased's cultural
affiliation.
➢ Customary law of succession can now be applied only if specified in
a will, using the common law principle of freedom of testation.

❖ Administration of estates
❖ Prior to December 2000, different systems existed for administering
intestate estates based on race, with magistrates handling black
persons' estates and the Master of the High Court handling red and
black persons' estates, as well as testate estates of black persons.
❖ Since 15 October 2004, following the Constitutional Court’s decision in
Bhe v Magistrate, Khayelitsha, South Africa adopted a unified system of
estate administration.
❖ All deceased estates are now administered under the Master's
supervision according to the Administration of Estates Act.
❖ The choice of law rules now only determine whether an estate is
administered by the Master or a designated magistrate's office,
depending on the estate’s value.

❖ Moseneke v The Master

➢ Highlighted these racial differences in estate administration,
leading the Constitutional Court to declare such legislation
unconstitutional.
➢ The Court did not change the application of customary law for
estate administration.
Private Overview
international law ❖ Private international law, also known as conflict of laws, determines
of succession which country's laws apply in cases involving connections with more
than one country.

❖ In South Africa, private international law of succession is not codified; it

is found in common law and specific legislation.

❖ Intestate succession:
➢ Movables are governed by the law of the deceased's domicile.
➢ Immovables are governed by the law of the property's location.

❖ Testate succession:
➢ The formal validity of wills is governed by Section 3bis of the Wills
Act.
➢ Wills must comply with the formalities of at least one legal system
outlined in Section 3bis to be valid in South African law.
➢ For movables, validity can be based on:
▪ The law where the will was executed.
▪ The law of the country where the testator was domiciled or
habitually resident at the execution or at death.
▪ The law of the country where the testator was a citizen at the
execution or at death.
➢ For immovables, validity can include:
▪ Any of the above scenarios or the law where the property is
located.

❖ An example of application: Emily's will involve multiple countries;

different legal systems govern the validity of her movable and
immovable property based on domicile, habitual residence, and
property location.
Succession Overview
terminology ❖ Absolute bequest: A bequest that does not contain any conditions. It is
the simplest form of making a bequest.
❖ Accrual (ius accrescendi): The right of co-heirs or co-legatees to inherit
the share that a co-heir or co-legatee cannot or does not wish to
receive.
❖ Ademption: The failure of a legacy when a testator voluntarily disposes
of the object intended to bequeath before their death.
❖ Adiation: The acceptance of a benefit or inheritance from the estate of a
testator.
❖ Administration of estates: The process by which a deceased estate is
liquidated by an executor under the supervision of the Master of the
High Court and distributed among the beneficiaries.
❖ Amanuensis: Someone who signs a will on behalf of the testator.

❖ Amendment: A change made by the testator to their will, which can

include deletion, addition, alteration, or interlineation.
❖ Animus testandi: The intention of the testator to make a will.
❖ Armchair evidence: Evidence used by a court to understand the
circumstances under which a will was made.
❖ Ascendants: Ancestors of the deceased; anyone in the ascending line
of relationship.
❖ Attestation clause: A clause at the end of a will declaring that all parties
were present and signed in each other’s presence, often including the
place and date of signature.
❖ Beneficiary: The person or persons who receive a testator’s estate,
called heirs if receiving an inheritance or legatees if receiving a legacy.
❖ Bequeath: To dispose of assets by means of a will.
❖ Bequest: Assets left by a deceased through a will, referred to as
inheritance for heirs and legacy for legatees.
❖ Capacity to act: A person’s legal ability to enter into legal acts; must be
at least 18 years old. Different from testamentary capacity.
❖ Child’s portion: The share of a deceased’s estate calculated by dividing
it among surviving children or their descendants, plus any surviving
spouses.
❖ Collateral: A person related to the deceased through a common
ancestor, such as siblings, nieces, nephews, cousins, uncles, or aunts.
❖ Collation: Under certain circumstances, a descendant who received
benefits (either property or money) from a testator during their lifetime
must bring these benefits back into the estate before inheriting,
ensuring fair distribution among all descendants.
❖ Commorientes: People who die simultaneously in a disaster.
❖ Competent witness: With regard to a will, any person over the age of 14
years who is competent to give evidence in a court of law.
❖ Compos mentis: Of sound mind.
❖ Conditional bequest: A bequest that depends on a future event which is
uncertain in whether it will occur.
❖ Coniunctissimae personae (Coniunctissimi): The persons closest to the
deceased, namely the surviving spouse, parents, and children.
❖ Contractual succession (pactum successorium): A contract attempting
to regulate the devolution of the entire estate or part of the estate of
one or both parties.
❖ Curator: A person legally appointed to take care of the interests of
someone who is unable to manage their affairs, such as a minor or
mentally ill person. A curator ad litem assists someone in litigation,
while a curator bonis administers property or an estate.

❖ Customary house: In customary law, refers to the family, property,

rights, and status associated with a customary marriage, which can
include multiple wives under polygyny.
❖ Customary law: Refers to three categories of property: family property,
house property, and personal property, each with specific rights and
rules under customary practices.
❖ Customary marriage: A marriage concluded under customary law.

❖ Deceased estate: The assets and liabilities of a deceased person at

the time of their death, including property and debts.

❖ Descendants: Common law descendants include lineal descendants

(persons in the direct line) of the deceased, while customary law may
include a wider circle of descendants.

❖ Dies cedit: The day will come; the time when a beneficiary obtains a
vested right to claim delivered property unconditionally.
❖ Dies venit: The day has come; the time when a beneficiary’s right to
claim delivered property becomes enforceable.

❖ Direct substitution: When a testator names substitutes who inherit if

the primary beneficiary does not.
❖ Donatio mortis causa: A gift given in contemplation of death, subject to
the formalities required for a will.
❖ Estate massing: When two or more testators (often spouses)
consolidate their estates for testamentary purposes, effective upon the
death of the first spouse.
❖ Execution of a will: The process of fulfilling all formalities required to
create a valid will.

❖ Executor: The person responsible for administering a deceased

estate and winding up affairs.

❖ Extrinsic evidence: Evidence outside the will itself, relating to facts not
appearing within the document.
❖ Fideicommissary substitution (fideicommissum): When a testator
directs a series of beneficiaries to own their estate or part of it in
succession, with the first beneficiary (fiduciary) passing it to the next
(fideicommissary).
❖ Formalities: Legal requirements a will must meet to be considered
valid.

❖ Freedom of testation: The freedom of an individual to dispose of

their estate as they wish.

❖ Heir: A beneficiary who inherits all or part of a testator’s estate; known

as an heir when inheriting the entire estate or a portion thereof.
❖ Inter vivos: Between the living.
❖ Inter vivos trust: A trust created during the lifetime of its creator.
❖ Intestate succession: The legal rules that determine how succession
should take place when a testator fails to regulate it through a valid will
or pactum successorium.
❖ Intestate: Of or relating to someone who has died without leaving a
valid will.
❖ Joint will: Where two or more testators set out their respective wills in
the same document. Unlike a mutual will, joint wills do not necessarily
appoint each other as beneficiaries.
❖ Juristic act: An act intended to create or alter rights and obligations,
recognized by law with legal consequences.
❖ Law of succession: Legal rules governing the transfer of assets eligible
for distribution to beneficiaries upon a person’s death.
❖ Legatee: A person who inherits a specific asset or a specific amount of
money from a testator.
❖ Legacy: The specific asset or amount of money bequeathed to a legatee
in a will.
❖ Living customary law: The actual application of customary law by
people living under it, which may differ from the official version.
❖ Lobolo: The property, in cash or kind, that a prospective husband or his
family agrees to give to the prospective wife’s family in a customary
marriage.
❖ Male primogeniture: Under customary law, the principle where male
heirs are prioritized based on their relationship through the male line,
typically starting with the firstborn son.
❖ Modus or obligation: A qualification added to a gift or testamentary
disposition requiring the beneficiary to use the property for a specific
purpose.
❖ Mortis causa: Latin for “in contemplation of death,” typically used to
describe gifts or dispositions made in contemplation of the donor’s
death.
❖ Mutual will: A joint will where two or more testators confer benefits on
each other in the same document.

❖ Nudum praeceptum: A prohibition in a will that is not legally binding

unless a substitute beneficiary is named to receive the property if the
prohibition is violated.
❖ Official customary law: The version of customary law recognized by
courts and entrenched in legislation, distinct from living customary law.
❖ Pactum successorium: A contract attempting to regulate the devolution
of all or part of the assets of one or both parties.
❖ Polygyny: A form of polygamy where a man has more than one wife.
❖ Posthumous: Something occurring or continuing after someone’s
death, such as a posthumous child born after the father’s death.
❖ Power of appointment: The authority granted to someone by a testator
to appoint certain beneficiaries as heirs or legatees.
❖ Precedent: Also known as stare decisis, the principle that courts are
bound to follow the precedents set by prior decisions in similar cases.
❖ Pre-legacy: A priority legacy created in a will, which takes precedence
over all other legacies and inheritances.
❖ Prodigal: A spendthrift; someone characterized by excessive or
imprudent spending.
❖ Quid pro quo: Latin for “something for something,” indicating mutual
consideration or exchange.
❖ Quitrent: In South African legal terms, the right to loan property from
the government for a specified period in exchange for payment
❖ Rebuttable presumption: A presumption that stands as fact unless
proven otherwise.
❖ Rectification: The correction of a mistake in a will by a court to reflect
the testator’s true intentions.
❖ Repudiation: The rejection of a benefit or refusal to inherit from the
estate of a testator.
❖ Residue or residuary estate: That part of the deceased’s estate
remaining after payment of debts, taxes, expenses, and other legacies.
❖ Resolutive condition: A condition that terminates a bequest if a specific
uncertain future event occurs.
❖ Resolutive time clause: A clause terminating a beneficiary’s rights at a
specified time.
❖ Si sine liberis clause: A clause stipulating that if a beneficiary dies
without children after the testator, the benefit passes to a third party.
❖ Spes: Latin for “hope” or “expectation.”
❖ Stipulatio alteri: A Roman law concept referring to a contract made in
favor of a third person.
❖ Stipulation: General terms used for clauses in a will where the testator
expresses their intentions.

❖ Stirps or stirpes: A line of descendants of common ancestry, including

every descendant of the deceased who survives them or a predeceased
descendant who leaves living descendants.
❖ Substitution: When a testator appoints one beneficiary to inherit a
benefit and also appoints another beneficiary to take the place of the
first beneficiary. Substitution can be direct (alternative) or
fideicommissary (one after another).
❖ Succession to status: In customary law, the successor assumes control
over the deceased’s property and the people whom the deceased
controlled, inheriting both assets and liabilities.
❖ Survivor: The spouse who remains alive after the death of their spouse.
In South African law, this term encompasses various types of marriages
recognized under different legal frameworks.
❖ Suspensive condition: A condition in a bequest where the beneficiary
does not receive the benefit until a specific uncertain future event
occurs.
❖ Suspensive time clause: A clause in a bequest where the beneficiary
will receive the benefit only at a specified future time.
❖ Testamentary capacity: The mental capability of a person to make a
valid will, typically requiring the ability to understand the nature and
consequences of making a will.
❖ Testamentary writing: A document that includes the necessary
elements of a bequest: the property bequeathed, the extent of the
interest bequeathed, or the beneficiary.
❖ Testate succession: Legal rules governing the distribution of a
deceased person’s estate according to their wishes as expressed in a
will.

❖ Testator: A person who makes a will to bequeath their estate upon

death.

❖ Trust: A legal arrangement where a testator entrusts their property to a

trustee to manage for the benefit of beneficiaries according to the trust
instrument.
❖ Trust instrument: The document that establishes a trust and sets out its
terms and conditions.
❖ Tutor: A person appointed in a will to act as guardian for a minor when
the natural parent(s) are unavailable.
❖ Usufruct: A legal right where one person (usufructuary) has the right to
use and enjoy the property owned by another (dominus or nude owner).

❖ Vest: When legal ownership of property or legal rights settle on a

beneficiary.

❖ Will: A legal document that outlines what should happen to a

person’s estate after their death, complying with formalities
required by law.
Ground rules of Overview
succession ❖ There are a few requirements (basic ground rules) that must be fulfilled
before the rules of Succession can come into operation
❖ Delatio – Estate falls open.

Person must have died

❖ In both common and customary law of succession, the owner of the
estate must have died for succession to occur.

❖ Estate Orpen v Estate Atkinson:

➢ The Atkinsons created a joint will, massing their estates. Mrs.
Atkinson exercised a 'power of appointment' favoring her husband,
Mr. Orpen. She died before her father, from whom she obtained the
power. The court ruled that she could not exercise this power as she
did not survive her father.

❖ The rule that a person must be dead before succession is not always
straightforward, with exceptions such as:
➢ Presumption of Death: A court may order the division of an estate if
a person is presumed dead but not confirmed, often requiring
security to return the estate if the person reappears.
➢ Estate Massing: Consolidates the estates of various testators into
one for testamentary purposes, even before the testators are dead.
➢ Commorientes: When several people die in the same disaster,
determining who died first can be crucial for succession, though
South African courts generally do not apply presumptions about the
order of death.

❖ Ex parte Graham:
➢ A case where no presumption was made about who died first in a
plane crash, leading the court to rule based on the specific
evidence, concluding simultaneous death.

❖ Greyling v Greyling:
➢ A case where a husband and wife died in a car accident, and the
court interpreted their joint will to mean simultaneous death,
resulting in the estate being distributed as if both died at the same
time.

Transfer of rights and/or duties with regard to assets and/or the status
of the deceased NB
❖ The transfer of rights and/or duties related to the bequest and status of
the deceased is considered the second fundamental rule of the law of
succession.
❖ This rule is connected to the concepts of dies cedit and dies venit.
❖ Someone must assume the deceased testator's position regarding
ownership of assets or, in customary law, status.
❖ In the common law of succession, there is a transfer of rights (and
sometimes responsibilities) that belonged to the deceased.
❖ In customary law, succession is more complex and depends on the
type of property and the status of the deceased.
❖ Generally, succession to status positions occurs after a family head's
death.
❖ There is a distinction between general succession (succession to the
deceased's general status) and special succession (succession to the
position of the head of the deceased's various houses).
❖ Succession to status has traditionally been limited to males and
follows the rule of male primogeniture, where a family head is
succeeded by his firstborn son of a particular house.
❖ The rule of male primogeniture in customary law was declared
unconstitutional by the Constitutional Court in Bhe v Magistrate,
Khayelitsha, leading to significant changes in the customary law of
succession and estate administration.

Beneficiary should at the time of dies cedit be alive or have been

concelved
❖ The transfer of rights (and occasionally responsibilities) is a
prerequisite for succession, requiring that there be someone to whom
these rights or responsibilities can devolve.
❖ A beneficiary must be alive or at least conceived for succession to
occur.
❖ If a beneficiary predeceases the testator, succession cannot occur
unless the will or antenuptial contract provides for this, or if ex lege
substitution applies.

❖ An exception is the nasciturus fiction, where a child conceived but not

yet born at the time of the testator’s death is regarded as having rights if
born alive.
❖ The nasciturus fiction is codified in section 2D(1)(c) of the Wills Act,
which allows benefits to vest in children who are alive or conceived at
the time of devolution and later born alive.
❖ Customary law does not have a similar fiction, but some communities
have customs like ukungena and ukuvusa to produce heirs after a
man's death.
❖ Ukungena allows a widow to marry her late husband's brother to
continue the family line if the husband dies childless.
❖ Ukuvusa permits the deceased’s natural heir to take the deceased’s
property, marry a wife considered the deceased’s wife, and have
children regarded as the deceased’s children.
❖ It is challenging to determine how widely these customs are still
practiced in indigenous communities.

Chapter 2
Introduction Overview
❖ Law of Intestate Succession:
➢ Governs the distribution of assets when a person dies without a
valid will or an antenuptial contract containing testamentary
provisions.
➢ Relevant Legislation:
▪ Intestate Succession Act: Applies to estates under common
law.
❖ Reform of Customary Law of Succession Act
➢ Applies alongside the Intestate Succession Act for estates under
customary law.
❖ Definitions:
➢ Testate: Dying with a valid will or antenuptial contract.
➢ Intestate: Dying without a will or antenuptial contract, or with an
invalid will/contract.

❖ Intestate Succession:
➢ Determines how the deceased’s estate is distributed.
➢ The Intestate Succession Act outlines who the heirs are and how
assets are divided.

❖ Application of Intestate Succession:

➢ When there is no will or antenuptial contract.
➢ When a valid will becomes partially or wholly invalid (partial
intestacy).
➢ When a will does not cover the entire estate.
➢ When a listed beneficiary repudiates the benefit without a
substitutionary provision.
➢ When a will does not comply with formal requirements.
Basic concepts Overview
❖ The law of intestate succession requires an understanding of basic
concepts such as descendants, ascendants, collateral relatives,
polygamy, spouses, permanent life partners, stirpes, and succession by
representation.

❖ Descendants:
➢ Common law descendants include the deceased's lineal
descendants (persons in the downward line).

❖ Customary law includes a wider circle of people:

➢ Persons recognized as descendants in terms of the Intestate
Succession Act.
➢ Persons accepted by the deceased following customary law as
his/her child.
➢ Women involved in substitute marriages or woman-to-woman
marriages.

❖ Ascendants:
➢ Ancestors of the deceased, anyone in the ascending line of the
relationship.
❖ Collateral relatives:
➢ Related to the deceased through a common ancestor (e.g., full
siblings, half-siblings, nieces, nephews, cousins, uncles, aunts).

❖ Polygamy:
➢ Polygyny: One man married to several women
➢ Polyandry: One woman married to several men.
➢ Polygyny is most prevalent in South Africa

❖ Spouse:
➢ A person married to the deceased through South African legislation
or religious personal law (Islamic Sharia law, Hindu religious
law/custom)

❖ Permanent life partner:

➢ A person with whom the deceased had a relationship (same-sex or
opposite-sex) with reciprocal duties of support.

❖ Stirpes:
➢ Descendants of a common ancestor.
➢ A stirpes includes all descendants of the deceased who survive or
the predeceased descendants of the deceased who have living
descendants.
➢ Each stirpes jointly inherits any part of the deceased's intestate
estate.

❖ Succession by representation:
➢ When an heir inherits based on their relationship with a
predeceased heir of the deceased.

➢ The descendant of a predeceased heir moves up into the position of

the predeceased heir.
➢ Per capita distribution:
▪ Each beneficiary takes the same share, different from per
stirpes distribution where each stem of the family takes the
same share.
Degree of Overview
relationship (per ❖ The third parental group, addressed in Rule 8 of Section 1(1)(f) of the
capita Intestate Succession Act, will be discussed in more detail later.
beneficiaries) ❖ In this group, the intestate estate is divided per capita, not per stirpes
or by representation.
❖ The estate is inherited by the nearest blood relatives based on the
principle of proximity.
❖ Accurately calculating the degree of relationship is crucial to ensure
the closest blood relative inherits the estate.
Concept of Overview
spouse: ❖ Previous interpretation: Narrow definition of "spouse" limited to a
lawful marriage between one husband and one wife.
❖ Post-Constitutional era: Preference for a broader interpretation of
"spouse."
❖ Current definition of "spouse" for intestate succession includes:
➢ Monogamous Muslim marriage: Survivor of a monogamous Muslim
marriage is considered a spouse (Daniels v Campbell).
➢ Polygamous Muslim marriage: Widow in a polygamous Muslim
marriage can inherit; exclusion is deemed unconstitutional
(Hassam v Jacobs).
➢ Monogamous Hindu marriage: Partner in a monogamous Hindu
marriage is considered a spouse, even if the marriage is invalid
(Govender v Ragavayah).
➢ Same-sex life partnership: Partner in a permanent same-sex life
partnership with reciprocal duties of support is included
• (Gory v Kolver).
➢ Heterosexual life partnership: Partner in a permanent heterosexual
life partnership with reciprocal duties of support is included
(Laubscher N.O. v Duplan and Bwanya v Master of the High Court).
➢ Customary polygamous marriage: Surviving partners in a
customary polygamous marriage are recognized (Bhe v Magistrate,
Khayelitsha).
Definitions of Spouse (Sec 1 RCLSA & Sec 2 RCMA):
“Spouse” and ❖ Partners in a customary marriage as per section 2 of the RCMA.
“Descendants”
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under RCLSA and ❖ Women in union with the deceased male to provide children for his
RCMA house.
❖ Women in union with the deceased woman (married to a man) to
provide children for her house

Descendants (Sec 1 RCLSA & Sec 2(2)(b) & (c)):

❖ Person accepted as the deceased's own child.
❖ Women in union with the deceased male to provide children for his
house.
❖ Women in union with the deceased woman (married to a man) to
provide children for her house.
Parental consists Overview
of a parental ❖ First parental: Deceased and spouse including their descendants of
group and its the deceased (Rule 1 3)
descendants: ➢ Always inherits first.
❖ Second parental: Deceased’s parents and their descendants (first line
collaterals), excluding E (Rule 4 -7)
❖ Third parental: Deceased grandparents and their descendants. Blood
relations who are closely related in degrees to the deceased (Rule 8)
❖ Forth parental; Great grandparents and their descendants, in full or half
blood.

❖ Why is it important to understand parental groups?

➢ Because S 1(4)(a) stipulates that in the first and second parental,
distribution takes place “per stirpes” and “representation”.
➢ In the third parental distribution takes place “per capita”
distribution (s 1(1)(f))
When does a Overview
person die ❖ In South African law, a deceased can die wholly testate, wholly
intestate? intestate, or partly testate and partly intestate. Intestate succession
applies if a deceased dies:
❖ Without leaving a will at all.
❖ Having executed a valid will which has subsequently become wholly or
partly inoperative for some reason.
❖ With a valid will that fails to dispose of all the deceased's assets.
❖ Leaving a document purporting to be a will but which does not comply
with the formalities for wills and is not condoned in terms of section
2(3) of the Wills Act.
Vesting of an Overview
intestate ❖ Harris v Assumed Administrator, Estate MacGregor.
inheritance ❖ Vesting of rights in intestate succession is exemplified by the case
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Pass and Prosper 19

❖ The deceased executed a valid will in 1941 and died in 1943.

❖ The will established a testamentary trust for the benefit of his wife, with
trust capital going to their children or, if none, to the deceased's brother
or his brother's children.\
❖ The deceased had no children, and his brother died in 1979 without
children, resulting in intestacy regarding the trust capital.
❖ The key issue was the date of intestacy: 1943 (when the deceased died)
or 1979 (when the brother died).
❖ The timing of intestacy affected the inheritance: if 1943, the
deceased's mother (died 1960) would inherit; if 1979, the appellant
(wife) would inherit.

❖ Common law analysis by Joubert M led to two principles:

➢ Intestate estate vests at the date of death if no will or valid will
exists.
➢ If a will becomes inoperative later, intestate estate vests when the
will's failure is determined.
Capacity to Overview
inherit intestate ❖ Only natural persons may inherit
➢ Juristic or commercial entities like companies, trusts, and
associations cannot inherit intestate.

❖ Extramarital, adulterine and incestuous children

➢ Historically, extramarital children could only inherit from their
mother and her relations.
➢ Section 1(2) of the Intestate Succession Act now allows extramarital
children to inherit from both parents and their relations.
❖ Children born because of artificial fertilisation
➢ Governed by section 40 of the Children's Act.
➢ If a child is considered extramarital, they inherit only from the birth
mother and her relations.
➢ If considered legitimate, the child inherits from the birth mother, her
spouse at the time, and their relations.

❖ Children born because of surrogacy arrangements

➢ Surrogacy arrangements are recognized and governed by Chapter
19 of the Children's Act.
➢ Valid surrogacy arrangements allow the child to inherit from the
commissioning parents and their relations.
➢ If the agreement is defective or rescinded, the child inherits only
from the surrogate mother and her relations.

❖ Adopted children
➢ Adopted children are deemed descendants of adoptive parents, not
natural parents, unless the natural parent is also the adoptive
parent or married to the adoptive parent at the time of adoption.
➢ Adoption terminates rights and obligations between the child and
natural parents.
➢ Adoptive children inherit as siblings.

❖ Unborn children
➢ For intestate inheritance, the nasciturus must be conceived at the
time of death and born alive to inherit.
➢ If a nasciturus dies shortly after birth, they are still considered to
have been born alive, and their inheritance will pass to their
intestate heirs.
➢ For testate succession, Section 2D(1)(c) of the Wills Act states that
benefits must vest in children alive or conceived at the time of
devolution and later born alive.
➢ The assumption is that the testator wanted the nasciturus fiction to
apply unless explicitly stated otherwise in the will.
➢ Nasciturus, when inheriting, are treated like minor beneficiaries and
face similar limitations.
Constitutional Overview
challenges ❖ The law of intestate succession affects socio-economic conditions and
has been tested in court multiple times.
❖ The constitutionality of intestate succession rules has been examined,
including those under the Intestate Succession Act and customary law.

Key Cases:
❖ Bhe v Magistrate, Khayelitsha
➢ Declared section 23 of the Black Administration Act
unconstitutional.
➢ Extended the Intestate Succession Act to customary law.
➢ Criticized male primogeniture for unfair discrimination and violation
of women's rights.
❖ Daniels v Campbell
➢ Extended the term "spouse" in the Intestate Succession Act to
include parties in monogamous Muslim marriages.
❖ Hassam v Jacobs
➢ Included women in polygynous Muslim marriages for intestate
succession purposes.

❖ Govender v Ragavayah
➢ Recognized the rights of spouses in monogamous Hindu marriages
under the Intestate Succession Act.
❖ Gory v Kolver
➢ Extended intestate succession rights to same-sex partners in
permanent life partnerships.
❖ Wilsnach v TM
➢ Considered the status of a grandmother as a primary caregiver and
parental figure for intestate succession.
❖ Bwanya v Master of the High Court
➢ Found the Intestate Succession Act unconstitutional for not
including partners in permanent opposite-sex life partnerships.
➢ Overturned previous decisions excluding such partners from
intestate succession.
Applicable Overview
intestate ❖ Developments in both common and customary law of succession
succession laws affect intestate succession rules.

❖ Before 27 April 1994:

➢ Black individuals with an African customary marriage: estate
devolves according to the repealed section 23 of the Black
Administration Act and relevant regulations.
❖ After 27 April 1994 but before RCLSA operation:
➢ Black individuals with an African customary marriage: estate
devolves according to the Intestate Succession Act as modified by
Bhe v Magistrate, Khayelitsha.

❖ Any other racial group (before or after 27 April 1994):

➢ Estate devolves according to the Intestate Succession Act.
➢ New definitions of 'spouse' and 'descendant' (from Daniels v
Campbell, Hassam v Jacobs, and Govender v Ragavayah) apply only
if deceased died on or after 27 April 1994.

❖ Same-sex permanent life partnership (after 27 April 1994):

➢ Estate devolves according to the Intestate Succession Act as
modified by Gory v Kolver.
➢ Permanent life partnership (with reciprocal duties of support):
➢ Bwanya v Master of the High Court order applies, with a suspension
of 18 months for constitutional invalidity to amend the Intestate
Succession Act.

The order of Overview

succession ❖ The RCLSA provisions relevant to intestate succession will be
under the discussed, including the role of permanent life partners and their
Intestate inclusion in the rules.
Succession Act ❖ The Act is NOT retrospective.
read with the ❖ Therefore, it ONLY deals with the position of a person who died
RCLSA intestate after the Act came into effect (18 March 1988)
❖ Before 18 March 1988 – the estate will be dealt with according to the old
system (Common Law and the Succession Act 13 of 1934)
❖ If a black person who maintained an African customary lifestyle by
entering a Customary marriage died intestate before 27 April 1994,
his/her estate will devolve according to the repealed section 23 of the
Black Administration Act and the relevant Regulations (the customary
law).
Rule 1: section Overview
1(1)(a) deceased ❖ If the deceased is survived by a spouse but no descendants:
is survived by a ❖ A single spouse inherits the entire estate, excluding all other relatives.
spouse/s or
permanent life ❖ Example: Romeo, who is survived by his wife Juliet but no descendants
partner, but no or siblings, leaves his entire estate to Juliet.
descendants ❖ If the deceased is survived by multiple spouses but no descendants:
❖ The estate is divided equally among all surviving spouses.

❖ Example: If Romeo is survived by three wives (Emily, Anna, and

Sophie), the estate is divided equally among them, with each wife
receiving one-third.
Rule 2: section Overview
1(1)(a): deceased ❖ If the deceased is survived by a permanent life partner but no
survived by descendants:
descendant/s ➢ The permanent life partner inherits the entire estate, excluding all
but no spouse/s other relatives.
or permanent life
partner ❖ Example: Cyril, who is survived by his life partner Dennis but no
descendants, leaves his entire estate to Dennis, regardless of other
surviving relatives like his mother or brother.
Rule 3: section Overview
1(1)b– deceased ❖ If a deceased is not survived by a spouse or permanent life partner but
is not survived by has descendants, those descendants inherit the estate.
a spouse(s) or ❖ Inheritance is divided equally among descendants, and representation
permanent life is possible for descendants of a predeceased child.

partner and ❖ Example: Rodney dies with a surviving son (Oliver), daughter (Miranda),
descendants and granddaughters (Winnie and Lisa). Since his wife and son Bert (who
had two daughters) have predeceased him:
➢ Oliver and Miranda each receive one-third of the estate.
➢ Winnie and Lisa each receive one-sixth, divided from Bert’s share.

❖ Posthumous children or children conceived before the deceased’s

death inherit equally, including those born from artificial insemination
or surrogacy.
❖ A child disqualified from inheriting due to specific circumstances (e.g.,
being adopted or convicted of certain crimes) is not entitled to
inheritance.
❖ In the case of multiple children, each share is distributed among
descendants equally, with any disqualifications considered.
Rule 4 (section Overview
1(1)(c)): ❖ When a deceased is survived by both a spouse(s) and descendants, the
deceased is distribution depends on the number of surviving spouses and the
survived by matrimonial property regime.
spouse(s) and ❖ Matrimonial Property Regimes in South Africa:
descendants ➢ Marriage in community of property
▪ the spouse inherits half of the joint estate and a share of the
Interstate estate. (R250 000 or child share)
➢ Marriage out of community of property with accrual
▪ the spouse receives their accrual share plus their Interstate
share. (R250 000 or child share)
➢ Marriage out of community of property with no accrual
▪ Spouse only receives their Interstate share (R250 000 or child
share)

❖ Scenario 1: One Spouse and Descendants

➢ The surviving spouse inherits the greater of either a child’s portion or
a fixed amount (currently R250,000).
➢ Descendants inherit the residue of the estate.

❖ Examples:
➢ In Community of Property: If Anthony's estate is R600,000, Patience
receives R250,000 (greater than a child’s portion of R75,000), and
the remaining R50,000 is divided among the children and
grandchildren.

➢ Out of Community with Accrual: If the estate is R450,000,

Patience’s accrual share is deducted before dividing the estate.
Remaining amount is split according to the same rules.

❖ Without Accrual: If the estate is R1,200,000, Patience receives

R300,000 (greater than a child’s portion of R250,000), and the
remaining R900,000 is divided among the children and grandchildren.

❖ Scenario 2: Multiple Spouses and Descendants

➢ Each spouse inherits the greater of a child’s portion or the fixed
amount (R250,000).
➢ Descendants inherit any remaining estate.
➢ If the estate is insufficient to provide each spouse with the fixed
amount, the estate is divided equally among the surviving spouses
and descendants receive nothing.

❖ Examples:
➢ Estate of R75,000: Each of three spouses receives R25,000; children
receive nothing.
➢ Estate of R1,000,000: Each spouse receives R250,000; the
remaining R250,000 is divided among the children.
➢ Estate of R2,100,000: Each spouse receives R300,000; remaining
R1,200,000 is divided equally among the children.
Rule 5: (section Overview
1(1)(c): deceased ❖ If the deceased is survived by a permanent life partner and
is survived by a descendants, the partner inherits the greater of:
permanent life ❖ A fixed portion (child's share), currently R250,000, set by the Minister of
partner and Justice and Constitutional Development
descendants ❖ Or a portion of the intestate estate
❖ The descendants inherit the remainder of the intestate estate.

❖ Example: If Nina, who has a permanent life partner named Adam and
two children (Simba and Lillibeth) from a previous marriage, has an
intestate estate worth R500,000:
➢ Adam receives R250,000
➢ Each child (Simba and Lillibeth) receives R125,000
Rule 6 (section Overview
1(1)(d)(i)): ❖ If the deceased is not survived by a permanent life partner or
deceased is not descendants:
survived by a ❖ The estate is inherited by both parents.
spouse , life
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Pass and Prosper 25

partner or ❖ If both parents are alive, all other relatives (except stepparents) are
descendants, but excluded from inheriting.
by both parents
❖ Example: If Thomas is survived by his mother, Maria; his father, Fred;
and his sister, Candy, but no spouse or descendants:
➢ Maria and Fred will inherit Thomas’s estate equally.
➢ Candy, the sister, will not inherit.
Rule 7 (section Overview
1(1)(d)(ii)): ❖ If the deceased is survived by one parent and descendants but not the
deceased is other parent:
survived by one ❖ The surviving parent inherits half of the intestate estate.
parent and ❖ The other half is inherited by the descendants of the predeceased
and descendants parent.
of ❖ If the predeceased parent has no descendants, the surviving parent
the other parent inherits the entire estate.

❖ Example: If Thomas is survived by his mother, Maria; his sister, Candy;

and his half-brother, Dan:
➢ Maria inherits half of Thomas's estate.
➢ The other half, which would have gone to the predeceased father, is
divided equally between his descendants, Candy and Dan.
Rule 8 (section Overview
1(1)e(i)(aa)-(cc)): ❖ If the deceased is not survived by a spouse, permanent life partner,
deceased is not descendants, or parents, but by descendants of the deceased's
survived by parents (e.g., siblings):
spouse, ❖ The estate is divided into two equal shares.
permanent life ❖ Each share goes to the descendants of one of the deceased's parents
partner, (mother and father).
descendants or ❖ Full siblings inherit from both halves.
parents, but by ❖ Half-siblings inherit only from the half related to their parent.
descendants of
his or her parents ❖ Example 1 (Xavier’s estate):
➢ Xavier's estate of R100,000 is divided into two halves:
➢ On the father’s side: Susan (half-sister) inherits R50,000 by
representation per stirpes.
➢ On the mother’s side: Ben and Carl (children of the predeceased
half-brother, Hank) each inherit R25,000.
➢ Example 2 (Rupert’s estate):
➢ Rupert’s estate of R100,000 is divided into two halves:
➢ Tibault (full brother) inherits R50,000 (from both sides).

➢ On the father’s side: Ariala (half-sister) inherits R25,000 by

representation per stirpes.
➢ On the mother’s side: Drew and Ashleigh (children of predeceased
half-brother, Mercutio) each inherit R12,500.
Rule 9 (section Overview
1(1)(e(ii): ❖ If the deceased is survived by descendants of only one predeceased
deceased is parent and not by a spouse, permanent life partner, or other parents:
survived by ❖ The descendants of that one parent are the sole heirs of the deceased's
descendants of estate.
one parent only ❖ Example (Thomas’s estate):
➢ Thomas dies intestate and is survived by his half-brother Dan, who
is a descendant of one of Thomas's predeceased parents.
➢ Dan inherits Thomas's entire estate.
Rule 10 (section Overview
1(1) F; the ❖ If the deceased is not survived by a spouse, permanent life partner,
deceased S! descendant, parent, or descendant of a parent:
survived by ❖ The nearest living family relation inherits per capita.
further relations.
❖ Steps to determine the nearest family relation:
1. Identify all living relations of the deceased eligible to inherit.
2. Identify the deceased’s common ancestor(s) and those who
would inherit from that ancestor.
3. Count the degrees of relationship between the deceased and
potential heirs:
➢ For direct line heirs, count the degrees between the
deceased and the common ancestor.
➢ For collateral heirs, count the degrees between the
deceased and the common ancestor, plus the
degrees between the common ancestor and the
potential heir.

❖ Per capita distribution means the estate is equally distributed among

those related to the deceased in the nearest degree, with no
representation allowed.
❖ Example (Thomas’s estate):
➢ Carol and Donald (predeceased grandparents) are the common
ancestors.
➢ Aunt Anne is related to Thomas in the third degree, while cousins
Gina and Hank are related in the fourth and fifth degrees,
respectively.

➢ Anne, being the closest family relation, inherits Thomas's entire

estate per capita.
➢ If Thomas's grandmother, Carol, were alive, she would have
inherited the estate as she would have been in the second degree of
direct line succession. If both grandparents were alive, they would
have inherited the estate equally per capita.
Disqualification Overview
and repudiation ❖ Under section 1(7) of the Intestate Succession Act, if an heir is
disqualified or repudiates an inheritance:
➢ The heir is considered to have died before the deceased.
➢ If the disqualified or repudiating heir has descendants, those
descendants inherit by representation.
➢ If the disqualified or repudiating heir has no descendants, the share
goes to other heirs according to intestate succession rules.

❖ Section 1(7) should be read with section 1(6), which states:

➢ If an heir repudiates an inheritance and the deceased is survived by
a spouse, the spouse inherits the repudiating heir's share.
➢ If there is no surviving spouse, the repudiating heir's descendants
inherit per stirpes; if none, the share goes to other intestate heirs.
Customary law of Overview
succession ❖ The customary law of succession was largely abolished by the Bhe v
Magistrate, Khayelitsha case and the RCLSA, which came into effect on
20 September 2010.
❖ The RCLSA, in conjunction with the Intestate Succession Act, applies to
intestate estates of black persons who were married under African
customary law.
❖ The intestate succession rules discussed in the chapter apply to all
estates, including those governed by customary law.
No intestate Overview
heirs found ❖ If no intestate heirs are found or located after a diligent search:
➢ The inheritance is paid into the Guardian's Fund.
➢ It remains in the Guardian's Fund for 30 years before being forfeited
to the State.

❖ If an intestate beneficiary is found or comes forward during that 30-year

period, even if remotely related, they will inherit the intestate estate.
❖ If a person dies intestate without any heirs, the estate is declared
forfeited to the state as bona vacantia (ownerless goods).

❖ According to Section 35(13) of the Administration of Estates Act, the

executor must hand over any unallocated money to the Master of the
High Court, who will place it in the Guardian’s Fund.
❖ Section 92 of the Administration of Estates Act states that if the money
in the Guardian’s Fund is not claimed after 30 years, it is forfeited to the
state.

Chapter 3
Wills Act Overview
1. Definitions
2. Formalities required in the execution of a will.
❖ 2A. Power of court to declare a will to be revoked.
❖ 2B. Effect of divorce or annulment of marriage on will
❖ 2C. Surviving spouse and descendants of certain persons
entitled to benefits in terms of will
❖ 2D. Interpretation of wills
3. (Section 3 repealed by section 5 of Act 43 of 1992)
❖ 3bis. Validity of certain wills executed in accordance with the
law of certain other states
4. [Link] to make a will
❖ 4A. Competency of persons involved in execution of will
5. ( Section 5 repealed by Section 8 of act 43 of 1992)
6. (Section 6 repealed by Section 8 of act 43 of 1992)
7. Repeal of laws
8. ( Section 8 repealed by Section 10 of act 43 of 1992)
9. Short title and date of commencement

❖ Schedule 1 - Certificate in terms of section 2(1)(a)(v)

❖ Schedule 2- Certificate in terms of section 2(1)(b)(iv)
❖ Schedule 3-LAWS REPEALED
Introduction Overview
❖ The testate law of succession governs the distribution of a
deceased person's estate according to the wishes expressed in
their will.
❖ A testator drafts and executes a will to determine the handling of their
estate after death.
❖ Upon the testator's death, the will is submitted to the Master of the
High Court for validity scrutiny.
❖ If the will is valid, an executor is appointed to manage the estate's
liquidation.
❖ A will must comply with the requirements and formalities specified in
the Wills Act to be accepted as valid.
❖ The Wills Act, effective from 1 January 1954, simplified the will-making
process in South Africa and abolished previous Roman-Dutch common
law wills.
❖ The Wills Act was amended in 1992, and now only one kind of statutory
will is permitted in South Africa.

❖ Will-making formalities are outlined in section 2(1)(a) of the Wills Act

and apply to all wills executed after 1 January 1954.
❖ Wills properly executed under common law or pre-1953 legislation
remain valid unless revoked by the testator.
Wills, codicils Definition of a will
and ❖ The Wills Act defines a will and its formalities, indicating that a will
testamentary includes a codicil but does not cover other types of documents.
writings
❖ Various writers have provided definitions of a will:
➢ Definition 1: A will is a unilateral and voluntary expression of one's
intention, made in a legally prescribed manner, dictating what
happens to one's estate after death.
➢ Definition 2: A will is a written document where a testator voluntarily
sets out instructions for asset distribution after death.
➢ Definition 3: A will or testament is a declaration in a document,
executed according to the law, regarding the distribution of property
after death; the act must be free and voluntary.
➢ Definition 4: A last will and testament is a document executed
legally by the testator, concerning property disposition and other
matters to take effect after death.

❖ The act of making a will must be voluntary, with the intention of

providing for the estate’s devolution.

❖ Essential prerequisites for a valid will include:

➢ The testator must have the free and serious intention to execute the
will (animus testandi).
➢ The will must be made voluntarily.
➢ The testator must have testamentary capacity.
➢ The will must comply with the formalities prescribed by section 2 of
the Wills Act.

Basic requirements for a valid will

❖ Animus testandi, or the intention to make a will, is essential for a will's
validity. The testator must clearly express the intention to create a will,
not merely state wishes or desires.
❖ A will is invalid ab initio if there is a complete lack of animus testandi
due to a mistake or if the testator's motivation was absent. Evidence of
animus testandi can be disputed if the will was made under duress or
fear.

❖ Undue influence, fraud, or duress affecting the testator's free will

invalidates the will if it replaces the testator's own volition.
❖ Factors influencing free will, like coercion or fraud, must be
distinguished from those affecting testamentary capacity, as the latter
involves different grounds for invalidity.
❖ Animus testandi is the testator’s clear intention to make a will. The
document must reflect this intention, not just general wishes.
❖ Volition is the testator’s genuine, uncoerced choice in distributing their
estate.
❖ A will is invalid if affected by coercion, fraud, or undue influence, which
impairs the testator’s true volition.

❖ Sim v The Master

➢ An unsigned document with charitable bequests was invalidated
because the testator had not yet signed it, indicating no animus
testandi at that time.
❖ In re Leedham
➢ The court held that the testator's intention to provide for estate
devolution was sufficient for validity, even if the document was not
explicitly intended to be a will.
❖ Spies v Smith
➢ The court noted that undue influence invalidates a will if it
substitutes someone else's will, but persuasion alone is not enough
to invalidate a will.
❖ Kirsten v Bailey
➢ The court found that undue influence and diminished testamentary
capacity led to the will's invalidity due to the testator's
compromised mental state.
❖ Sim v The Master
➢ An unsigned document lacked animus testandi because the
testator had not completed it.
❖ Spies v Smith
➢ Undue influence can invalidate a will if it overrides the testator’s
own free will.

Definition of a codicil and a testamentary writing

❖ The Wills Act defines "will" but does not comprehensively address
whether a codicil or testamentary writing is considered a will.
❖ Historically, there were differences between a will and a codicil,
particularly regarding formalities, but modern law has eliminated these
distinctions.

❖ A codicil is a separate will that must comply with the same formalities
as an original will, though it is often used to amend an existing will.

➢ Example: A testator can use a codicil to increase a bequest amount

while reaffirming the rest of the original will.

❖ The term "testamentary writing" under the Wills Act refers to

documents that must meet formal requirements, including identifying
the property, interest, and beneficiary.
❖ An inter vivos trust, created during the life of the trust creator, does not
need to comply with testamentary formalities, but if a will bequeaths
assets to such a trust, those assets must meet will formalities.

❖ Ex parte Davies
➢ A letter identifying a beneficiary was questioned; the court ruled
that such a letter must comply with will formalities.
▪ Example: Photographs attached to a will identifying jewelry must
meet formalities to qualify as testamentary writings.

❖ Oosthuizen v Die Weesheer

➢ The court determined that a sketch plan of property attached to a
will must adhere to the same formalities as the will.
Joint and mutual Overview
wills ❖ A joint will is a single document where two or more testators outline
their respective wills, but they do not necessarily name each other as
beneficiaries.
❖ A mutual will is a type of joint will where the testators confer benefits on
each other in the same document.
❖ All mutual wills are joint wills, but not all joint wills are mutual wills.
❖ Joint wills are common among married couples in community of
property but can be made by anyone.

➢ Example: Two sisters, Catherine and Debbie, create a joint will

where Catherine leaves her estate to Xandile and Debbie leaves
hers to Yolanda. If Catherine had left her estate to Debbie and vice
versa, it would have been a mutual will.
❖ A joint or mutual will is executed once and signed by all testators.
❖ Each testator's provisions are separate; one can revoke or amend their
part of the will independently, potentially invalidating their portion
without affecting others.

Adiation and Overview

repudiation ❖ Adiation is the acceptance of a benefit from a deceased person's
estate, while repudiation is the rejection or refusal to inherit a benefit.
❖ In South African law, beneficiaries can choose to adiate or repudiate
any benefit; there is no obligation to accept or reject a benefit.
❖ Adiation generally does not require formalities but must be in writing if
the benefit is attached to an obligation.
❖ Repudiation is not easily inferred from conduct and requires written
proof.
❖ Upon adiation, a beneficiary gains a vested right to claim the benefit
from the executor.
❖ Repudiation might affect the estate differently depending on the will's
provisions, with benefits potentially going to substitutes, accruing to
other heirs, or devolving according to intestate succession rules.

❖ Examples of devolution include:

➢ If a beneficiary repudiates a bequest, it may pass to a substitute or
fall into the residue of the estate.
➢ If no substitute is named and a beneficiary repudiates, the benefit
goes to the residual heir or, if none, according to intestate
succession rules.
Doctrine of Overview
election ❖ The Doctrine of Election requires a beneficiary to choose whether to
accept a benefit burdened with additional obligations.
❖ A beneficiary must accept the benefit and its associated
responsibilities or repudiate it entirely.
❖ If a beneficiary accepts a benefit, they cannot partially repudiate the
associated obligations.
❖ In the case of Ex parte Estate Van Rensburg, a beneficiary must accept
the entire will's provisions or repudiate them entirely.
❖ The doctrine applies when the testator imposes a burden, such as
condition or modus, on the benefit.

❖ Example 1:
➢ Ben must decide whether to accept the farm, Mooiplaats, under the
condition of transferring his share of another property, Mooibosch,
to Siyabonga.
➢ If he accepts, he must give up his share of Mooibosch; if he rejects,
he will lose Mooiplaats but retain Mooibosch.

❖ Example 2:
➢ John inherits a beach house with the obligation to pay his three
sisters R100,000 each.
➢ He must choose between accepting the beach house with the
obligation or rejecting it to keep only the farm.

❖ Doctrine of Incorporation by reference; it is when a person

incorporates an external document into a Will by merely mentioning or
referencing in in the will without it actually being
part of the contents of the will.
➢ The doctrine of incorporation by reference is not applicable in
South African Law.
➢ Additionally, in Wessels v Die Meester the court held that the
doctrine of incorporation of a document in a will by reference is not
part of South African Law.
➢ Therefore, the bequest will not be valid, and his estate will be
divided as though he had died intestate.
Customary law Overview
of succession ❖ Customary law of succession may include provisions for family heads
to manage and distribute property, though this is limited and needs to
comply with formalities.
❖ Testamentary powers under customary law allow a head to give
instructions for property distribution, but they must adhere to legal
formalities to ensure validity.
❖ New developments suggest testators might increasingly use wills to
manage the division of customary property.
❖ Such wills must meet the requirements of the Wills Act and other
common law rules to avoid invalidity.

Chapter 4
Introduction Overview
❖ A will is a unilateral legal act that should be made by individuals with
legal capacity.
❖ In South Africa, the legal age for performing legal acts, such as entering
contracts, is 18 years, previously 21 years before the Children's Act
amendment.
❖ The age required to make a legally valid will (testamentary capacity) is
16 years.
❖ Testamentary capacity is governed by the Wills Act.
❖ A document without testamentary capacity is invalid, even if it meets
other formalities required by the Wills Act.
❖ Testamentary capacity is a prerequisite for making a will.
Testamentary What is testamentary capacity?
capacity ❖ Testamentary capacity is the ability to make a will and must be
distinguished from general capacity to act.
❖ A person aged 16 years or older can make a will if they are mentally
capable of understanding the nature and effect of their act.

❖ Section 4 of the Wills Act defines testamentary capacity:

➢ A person is considered to have testamentary capacity if they are 16
years or older and are mentally capable of understanding the nature
and effect of their act.
➢ The burden of proof lies on the person challenging the testamentary
capacity.
Prescribed age
❖ The Wills Act specifies that a testator must be at least 16 years old to
execute a valid will.
❖ A person under 16 cannot make a will, even with parental or guardian
assistance, as making a will is a unilateral act based on personal
volition.
❖ Questions arise regarding why the age for testamentary capacity is 16
while contractual capacity is 18.
❖ Historically, minors needed to manage estates early on, as seen in
Roman times, where the eldest son inherited significant responsibilities
and assets.
❖ Over time, it became evident that minors often lack the maturity
needed for responsible decision-making in contracts, leading to stricter
rules for contractual capacity.
❖ Until 2005, the legal age for full contractual capacity was 21.

❖ The current age difference reflects the greater impact on third parties'
rights and duties in contractual relationships compared to the effects
of a minor making a will.
Mental capabilities
❖ Section 4 of the Wills Act states that apart from the age requirement,
the only requirement for testamentary capacity is that the testator must
understand the nature and effect of their actions at the time of
executing the will.
❖ The testator's mental condition at the time of drafting the will is
irrelevant; capacity must be proven at the time of execution.
❖ Certain persons, like the insane or those under the influence of drugs,
are presumed incapable of making a valid will. However, the burden of
proving lack of mental capacity lies with the claimant.
❖ A person who is mentally insane or intoxicated cannot make a valid will,
but must prove mental capacity or lucid intervals if claiming a valid will
during such periods.
❖ An example of invalidity is given where Theo, in a drunken state, writes a
will jokingly on a cigarette packet, which may be contested for lack of
animus testandi and testamentary capacity.

❖ De Waal and Schoeman-Malan

➢ Distinguish between formal capacity (as per the Act) and factors
affecting free will, such as coercion, undue influence, and fraud.
❖ Spies v Smith
➢ The Court found no testamentary capacity issues but invalidated
the will due to undue influence.
❖ Katz v Katz
➢ The Court found the testator had testamentary capacity and was
not unduly influenced, upholding the will's validity.
❖ Harlow v Becker:
➢ Facts: The deceased, due to her weakened condition, was unable to
rationally appreciate the claims of her heirs under a previous will or
form a purposeful intent to disinherit them when she signed the
disputed document.
➢ Court's Decision: The court found that the deceased lacked the
capacity to make a will due to overwhelming evidence of her
condition. However, the court emphasized that the validity of a will
depends on the specific facts and circumstances of each case.
Despite similar circumstances, applications to invalidate wills
failed in the *Essop* and *Katz* cases but succeeded in *Harlow*
due to the compelling evidence presented.

❖ Thirion v Meester:
➢ Facts: It was alleged that the testator (T) drank heavily during the
time the will was made.
➢ Court's Decision: The court ruled that without specific evidence
showing the impact of alcohol on the testator during the act of
making the will, it could not conclude that the testator lacked
capacity. The mere consumption of alcohol does not invalidate
legal acts; the critical question is whether the testator understood
the nature and extent of their actions despite the influence of
alcohol or drugs.
❖ Essop v Musthapa and Essop:
➢ Facts: The court considered whether old age, illness, or reduced
mental capacity rendered the testator incapable of
understanding the effect of their will.
➢ Court's Decision: The court held that age or illness alone does
not automatically render a testator incapable of appreciating
the effect of their will. Each case depends on its specific facts
and circumstances.
❖ Smith v Strydom
➢ Factors for proving mental incapacity included not understanding
the nature of the testamentary act, not remembering bequeathable
property, or failing to distinguish between entitlements.
Animus testandi, Overview
volition, ❖ The two general requirements for the validity of a will are that the
testamentary testator must have the intention to make a will and must exercise this
capacity and intention freely.
freedom of ❖ Additionally, the testator must have the necessary capacity to make a
testation. will, including meeting the age and mental capacity requirements as
prescribed by Section 4 of the Wills Act.
❖ These concepts relate to the formal requirements for the validity of
testation.

Customary law Overview

of succession ❖ The Reform of Customary Law of Succession Act (RCLSA) permits
individuals living under customary law to make a will.
❖ The requirements for testamentary capacity under customary law are
that the person must be at least 16 years old and not mentally
impaired.

Chapter 5
Introduction Execution of a Will
❖ The process where the testator and relevant parties comply with
the formalities required to create a valid will.

Invalid Wills
❖ A will not executed according to the formalities of the Wills Act is
invalid and has no legal effect.
❖ The contents of an invalid will are ignored unless a court order
under section 2(3) of the Act allows it to be accepted as valid.
❖ Section 2(3) provides a legal mechanism to accept defectively
executed wills but can be challenging, time-consuming, and
costly.

Importance of Compliance
❖ To ensure the will is valid, testators must strictly adhere to the
formalities of the Wills Act.
❖ Complying with these formalities is essential to avoid the lengthy
and expensive process of seeking a court order under section
2(3).

Substantive vs Formal Validity

❖ A formally valid will means it complies with the execution
formalities.
❖ Substantive validity refers to the content's legality, i.e., whether
the will's provisions comply with the law (e.g., not bequeathing
an estate to an illegal organization).
Formalities of Formalities in terms of section 2(1)(a) of the Wills Act
a Will ❖ The will must be signed at the end by the testator or an
authorized amanuensis (a person signing on behalf of the
testator).
❖ If the will has multiple pages, all pages except the last must be
signed anywhere on the page by the testator or amanuensis.
The last page must be signed at the end.
❖ The signature of the testator or amanuensis must be made or
acknowledged in the presence of two or more competent
witnesses.
❖ The witnesses must sign the will in the presence of the testator,
the amanuensis (if applicable), and each other.
❖ If the testator signs with a mark or an amanuensis signs, a
commissioner of oaths must be present, and certification
formalities apply.

Persons Required at the Execution of a Will

❖ Testator signs with own signature: Testator and two witnesses.
❖ Testator signs with a mark: Testator, two witnesses, and a
commissioner of oaths.
❖ Amanuensis signs for testator: Testator, amanuensis, two
witnesses, and a commissioner of oaths.

Requirement of a Written Document

❖ In the past, written documents were regarded as essential, but
with word processing, this view has shifted.
❖ The Wills Act does not explicitly require a will to be in writing,
but it is implied because of the requirement for the testator’s
signature in certain places and references to the will’s pages.
❖ Handwriting, typing, printing, or a combination are acceptable
formats for a will. Writing in pencil is allowed but not
recommended due to potential fraud.
❖ Oral wills, video or DVD recordings, or electronic formats like
computer files are not accepted because they do not meet
signature requirements.
❖ Even if an electronic signature were valid, it would not meet the
requirements for the placement of the testator’s and witnesses’
signatures.
❖ A will composed as an SMS on a cellphone would not comply
with the formal execution requirements.

Meaning of ‘Sign’ and “Signature and the concept of a ‘mark’

❖ Initials are the first letters of one or more of a person’s names
without the surname.
❖ When initialing a document, a person uses the first letters of their
name, and typically only signs the last page of multi-page
documents.
❖ Initials used as a signature were once considered marks, which
created issues under earlier legal definitions of a “signature.”
❖ Harpur v Govindamall
➢ Ruled that initials constituted a mark, which led to confusion
in will signing.
❖ Parliament later revised the definition of “signature” to include
initials as valid, distinguishing them from marks.
❖ Initials now qualify as a signature, and do not require certification
by a commissioner of oaths, unlike marks.
❖ Marks, such as a cross or thumbprint, are still used by testators
but require certification.

❖ The use of non-standard writing (e.g., “Your loving mother”) at the

end of a will can be considered a mark, though it is not
recommended.
Where must the Testator Sign?
❖ The Act requires the testator to sign the will as close to the end as
possible.
❖ A will that ends halfway down a page, or at the bottom, must have
the testator’s signature near the last words.
❖ The purpose of this requirement is to prevent fraudulent
insertions after the will ends.
❖ If the testator does not sign close to the last words, the will may
be invalid.
❖ Kidwell v The Master
➢ In this case, a nine-centimeter gap between the end of the will
and the signature was deemed too large, making the will
invalid.
➢ If the will consists of more than one page, the testator must
sign both sides of the paper.
➢ The signature on the second side of the page can be placed
anywhere, but the will must end with a signature close to the
final words on the first side.

Signature by an Amanuensis
❖ What is an Amanuensis?
➢ An amanuensis is a person authorized by the testator to
sign a will on their behalf.
❖ Section 2(1)(a)(i)
➢ Section 2(1)(a)(i) of the Wills Act requires that the will be
signed either by the testator or by someone else (the
amanuensis) in the testator’s presence and at their direction.
➢ The amanuensis is needed when the testator is unable to sign
due to physical limitations or illiteracy.
➢ The amanuensis should sign using the testator’s name, to
avoid confusion regarding the testator’s identity.
❖ Case Law
➢ Oosthuizen v Sharn, Ex parte Fourie
▪ Case law has confirmed that wills signed by an
amanuensis with the testator’s name were correctly
executed.
❖ Details
➢ Some authorities suggest that the amanuensis can sign with
their own name, followed by “p.p.” (per procurationem), to
indicate signing on behalf of the testator.
➢ It is generally considered safer for the amanuensis to use the
testator’s name.
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and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
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46

➢ When using an amanuensis, the will must be signed in the

presence of the testator, witnesses, and a commissioner of
oaths, who must certify the will.

Who is Required to Witness a Will?

❖ A will must be witnessed by two competent witnesses.
❖ A competent witness is any person over the age of 14 who can
give evidence in court.
❖ Section 4A
➢ Section 4A of the Wills Act states that a witness or their
spouse cannot inherit under a will they witness.
❖ A will witnessed by a beneficiary remains valid, but the
beneficiary loses the right to inherit under that will.

The Meaning of Witnessing

❖ Witnessing a will involves the physical presence of witnesses
during the testator’s or amanuensis’ signing and the signing of the
will by the witnesses.
❖ Two competent witnesses must be present at the same time
when the testator or amanuensis signs each page of the will.
❖ If the amanuensis signs, the testator and a commissioner of
oaths must also be present.
❖ Witnesses must sign the last page of the will; whether they
need to sign all pages is debated.
❖ Since 1 October 1992, witnesses are generally not required to
sign every page, but some court rulings suggest otherwise.
❖ Liebenberg v The Master
➢ The court held that since s2(1)(a)(iii) makes a specific
requirement for the location of T’s signature, but not for that
of witnesses, *witnesses can sign anywhere on the last page*
(provided that they do not sign where T’s signature should
appear, because then the will would be invalid due to T
signing in the wrong place.)
➢ Court further held that witnesses ONLY need to sign on the
last page of the will.
➢ This was contested in Karani v Karani, which held that
witnesses can indeed sign anywhere on the page, but must
sign on every page.
➢ These conflicting judgements are High Court decisions, and
there is no CC/SCA confirmation as of yet – Liebenberg is the
preferred interpretation.
❖ Karani v Karani
➢ In Karani v Karani, the Court ruled that all pages should be
signed to prevent fraud, though this interpretation is
contested.
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and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
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❖ Where should witnesses sign?

➢ Witnesses can sign anywhere on the page, but not where the
testator’s signature should be.
➢ Witnesses must sign after the testator to attest to the
signature.
➢ Witnesses don’t need to know the contents of the will but
should be aware that they are witnessing its execution.
➢ If an amanuensis signs, the testator and a commissioner of
oaths must be present.

Acknowledging a Signature
❖ The Act allows the testator to sign the will in advance and later
acknowledge the signature to witnesses, as long as both
witnesses are present simultaneously.
❖ There is no provision for a testator’s mark or an amanuensis’
signature to be acknowledged in the absence of a commissioner
of oaths.
❖ A commissioner of oaths is only required if a mark or an
amanuensis is used; if the testator signs personally, the
commissioner of oaths is not necessary.

Must a will be dated or have an attestation clause?

❖ The attestation clause confirms the date and place of the will’s
signing.
❖ It states that the testator and witnesses signed in each other’s
presence.
❖ Example of an attestation clause:
➢ “Signed at Johannesburg on 10 April 2022 in the presence of
the undersigned.”
❖ An attestation clause does not invalidate the will if absent.
❖ Evidence can be provided to contradict the information in the
clause.
❖ A date is not required for the validity of a will.

❖ Thaker v Naran
➢ The authority for the fact that wills do not require an
attestation clause is found in this
➢ It also provides that if a will appears at face value to be signed
by T and 2 witnesses, there is a presumption of validity.
➢ He who alleges the will’s invalidity must prove so on a balance
of probabilities.
❖ Sterban v Dixon
➢ it was held that an attestation clause is at most a record of
how T and the witnesses intended to sign.

➢ It is NOT proof that parties in fact executed the will in

accordance with this intention.

Additional Formalities associated with a mark or an amanuensis

❖ Generally
➢ When a testator signs with a mark or an amanuensis signs for
the testator, the will must be signed in the presence of a
commissioner of oaths and two witnesses.
➢ Designated commissioners include magistrates, advocates,
attorneys, and police officers.
❖ Commissioner of Oath
➢ The commissioner of oaths must:
▪ Verify the testator’s identity.
▪ Ensure the signed will is indeed the testator’s.
▪ Certify this on the will.
▪ Record that they acted as a commissioner of oaths.
▪ Handwrite, type, print, or rubber stamp the certificate on
the will.
➢ Specimen certificates are provided to assist commissioners
in compliance with the Act.
➢ Courts strictly enforce certification requirements, and failure
to state the capacity as a commissioner can invalidate the
will.
❖ Case Law
➢ Radley v Stopforth
▪ In Radley v Stopforth, a certificate was invalidated
because the commissioner did not specify his capacity.
➢ Jeffrey v The Master
▪ In Jeffrey v The Master, a will was invalid due to the
certifying officer not indicating he was acting as a
commissioner of oaths.
❖ Additional Details
➢ The Act allows courts to accept defectively executed wills as
valid under certain conditions.
➢ The certificate must be made ‘as soon as possible’ after the
testator’s signing, and although previously required before
death, it can now be completed afterward as long as it’s
timely.
➢ The certificate should be on a page of the will, but appending
it elsewhere may not comply with requirements.
Amendments Formalities for Amendments of Wills
of Wills ❖ Generally
➢ A will can be altered by the testator at any time.
➢ Changes can be made through a codicil or by directly
amending the will.
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and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
49

➢ An amendment made by executing a codicil must comply

with section 2(1)(a) of the Wills Act. It is tempting to simply
say that any amendment must comply with s2(1)(b)
formalities, but this is incorrect - codicils must comply with
2(1)(a), not (b). It is only amendments made by interfering
with or changing the writing of a will that need to comply with
section 2(1)(b).
❖ Types of amendments include:
➢ Additions
➢ Alterations
➢ Interlineations (inserting new words)
➢ Deletions, cancellations, and obliterations, unless revoking
the entire will.
❖ Methods for amending a will:
➢ Inserting additional paragraphs
➢ Altering existing words or numbers
➢ Drawing lines through text to delete it
❖ Additional Considerations
➢ Amendment rules depend on the execution date of the
original will.
➢ Pre-execution amendments need no formalities but
should be signed by the testator and witnesses.
➢ Post-execution amendments must comply with the Wills
Act, requiring signatures from the testator and witnesses.
➢ The Act does not specify how signatures should be placed,
but clarity is essential.
➢ A commissioner of oaths may be required to certify
amendments made by mark or amanuensis.
➢ The certificate should clearly identify which amendment it
refers to, though not explicitly required by the Act.
S2(1)(b) of the Overview
wills Act ❖ No amendment made in a will is valid unless:
➢ The amendment is identified by the signature of the testator
(T) or their amanuensis.
➢ The signature is made in the presence of 2 or more competent
witnesses present at the same time.
➢ The amendment is further identified by the signatures of the
witnesses, in the presence of T and each other (and the
amanuensis, if applicable).
➢ If the amendment is identified by a mark made by T or if the
amanuensis signed on behalf of T, a certificate from a
commissioner of oaths is required. The commissioner must
verify T's identity and confirm the amendment was made by
or at the request of T.
❖ The signatures confirm that the amendment reflects T’s wishes.
Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass
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❖ The law does not specify where T and the witnesses should sign,
but it should be as close to the amendment as possible, or the
signatures should clearly relate to the specific amendment.
❖ The two witnesses for the amendment do not need to be the
same as those who signed the original will.
❖ The commissioner’s certificate, if required, must be appended as
soon as possible after the identification of the amendment,
similar to the process for s2(1)(a).
❖ Revocation does NOT have to comply with the same formalities
as amendment. If some part of will is deleted/crossed out
WITHOUT changing anything else/adding anything, such action
can be valid as a revocation without having to comply with
s2(1)(b) formalities. If the intention was to amend, however, then
the formalities must be complied with.
Section 2(3) of Overview
the Wills Act ❖ Section 2(3) of the Wills Act
➢ Section 2(3) of the Act allows the High Court to direct the
Master to accept a document as a valid will or
amendment, despite non-compliance with formalities, if the
testator intended it as such.
➢ This authority is known as the power of condonation, with
section 2(3) often referred to as the rescue provision.
➢ If section 2(3) requirements are met, the Court must order
acceptance of the document as valid; if not met, the Court
has no discretion to grant relief, even for fairness.
➢ Extensive litigation and differing judicial interpretations have
arisen regarding section 2(3).
➢ The provision states that if a court is satisfied a document
drafted or executed by a deceased was intended to be a will,
it must be accepted despite lacking formal execution or
amendment compliance.
➢ Interpretation issues include whether the rescue provision
applies to completely unsigned documents and the required
degree of compliance.
➢ The strict approach maintains that substantial
compliance is necessary, while the flexible approach allows
for acceptance of unsigned documents if intention is clear.
➢ Judicial precedent indicates that an unsigned document
can be validated if it was personally drafted by the deceased
or approved by them.
➢ Courts have ruled in favor of flexible interpretations in
cases where documents were prepared by attorneys but
approved by the testator.

➢ Recent rulings suggest that completely unsigned wills

cannot be validated unless the deceased personally drafted
them.
➢ Section 2(3) allows for documents stored digitally, like
computer files, to be accepted as valid wills if the deceased
intended them as such.
➢ S2(3) can ONLY be used to condone a will/amendment where
it is invalid due to non-compliance with either s2(1)(a) or (b)
formalities. Section 2(3) CANNOT be used to condone a will
that is invalid due to lack of testamentary capacity etc.
❖ Case Law
➢ Macdonald v The Master and Van der Merwe v Master of the
High Court
▪ Illustrate the application of section 2(3) to digital
documents, emphasizing intention over traditional
formalities.
➢ Webster v The Master
▪ Established the view that some degree of compliance is
required for the rescue provision; the section is intended
to remedy technical non-compliance, not validate
completely unsigned documents.
➢ Van der Merwe v Master of the High Court
▪ Applied section 2(3) to an unexecuted will emailed to a
friend, finding that the testator intended it to be his will.
➢ Back v Master of the Supreme Court
▪ Allowed a document drafted by an attorney but approved
by the testator to be accepted under section 2(3),
emphasizing a flexible interpretation.
➢ Grobler v Master of the High Court
▪ Reinforced the requirement of personal drafting, refusing
to accept a will that was heavily discussed with an advisor
but not personally drafted by the testator.
➢ Opperman v Opperman
▪ Held that a deceased’s addition to an unsigned attorney-
drafted will did not convert it into one personally drafted
by him.
➢ Macdonald v The Master
▪ Accepted a computer file as a valid will under section 2(3)
due to clear intention from the deceased.
➢ Ex parte Laxton
▪ Illustrates acceptance of documents under section 2(3)
even when lacking traditional formalities.

The Requirement of Execution in Section 2(3)

❖ Bekker v Naude
➢ The Bekker v Naudé decision likely shifts focus to
applications for relief under section 2(3) related to defectively
executed documents not drafted by the testator.
➢ The term "execute" in this context refers to the formalities
required for validity under section 2(3).
❖ Ex parte De Swardt
➢ In Ex parte De Swardt, a testatrix’s draft will was approved but
had a page accidentally omitted during printing.
➢ The court granted relief under section 2(3) based on the
testatrix’s approval of the draft, allowing for inclusion of the
missing page.
❖ After Bekker v Naude
➢ Following Bekker v Naudé, the use of similar arguments for
relief is uncertain.
➢ Questions arise about whether the testatrix can be said to
have executed the missing page since it was not part of the
signed document.
➢ The situation is problematic and its outcome unpredictable,
though rectification rules may address the testatrix’s
testamentary intentions.

Intention Requirement of Section 2(3)

❖ Generally
➢ Section 2(3) requires a document that shows the testator’s
intention to create a final will.
➢ The testator’s intent must be clear at the time the document
is made; mere instructions to draft a will are not sufficient.
❖ Ex Parte Maurice
➢ In Ex parte Maurice, a draft will was deemed not valid as the
testator did not intend it to be final.
❖ Letsekga v The Master
➢ Letsekga v The Master involved notes for potential changes to
a will, interpreted as not intended to be a codicil.
❖ Osman v Nana
➢ In Osman v Nana, unsigned documents found were
considered merely instructions, lacking finality.
❖ Van Wetten v Bosch
➢ Van Wetten v Bosch granted a section 2(3) order for a letter
intended to be a final expression of wishes, unlike previous
cases.
❖ Smith v Parsons
➢ Smith v Parsons recognized a letter as an amendment to a will
despite its informal nature.
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53

➢ Evidence of a changed intention after the document was

made is generally irrelevant.
❖ Mabika v Mabika
➢ Mabika v Mabika controversially treated a bank request form
as a will, while Williams v Hendricks rejected this view,
emphasizing the need for clear testamentary intent.
➢ Establishing testamentary intention is required, not
testamentary capacity.
❖ Webster v The Master
➢ In Webster v The Master, a draft will was refused recognition
as the testator died before it could be finalized.
Aim of the Overview
s2(3) 1. To avoid frustration of T's intention & inequitable results
condonation 2. To obviate (remove/prevent) problems which arose in
procedure interpreting s2(1)
3. To eliminate injustice and inequity resulting from invalidity
Customary Overview
Law of ❖ The Constitutional Court’s decision in Bhe v Magistrate,
Succession Khayelitsha allowed individuals under customary law to execute
wills.
❖ Section 23 of the Black Administration Act was repealed.
❖ The commencement of the Reform of Customary Law of
Succession Act (RCLSA) supports this change.
❖ The requirements for wills discussed in this chapter now apply
to all wills made by individuals under customary law.
Purpose of Overview
formalities in 1. Protective function: aims at guarding against fraud &
execution secures authenticity.
2. Cautionary function: warns a prospective testator about
the significance of the action about to be undertaken
3. Evidentiary function: contributes towards legal certainty
& avoids disputes after death.

Chapter 6
Introduction Overview
❖ Definition
➢ Revocation is the act of canceling a will or part of a will,
rendering it invalid.
❖ Partial Revocation
➢ Partial revocation allows a testator to revoke only part of a will
while keeping the rest valid.
❖ Details
➢ Revocation is governed by common law and the Wills Act.
➢ A testator can revoke their will anytime during their lifetime,
and any agreement to restrict this is unenforceable.
❖ Exceptions
➢ Exceptions to this freedom include:
▪ Where a mutual will establishes estate massing, and the
surviving testator adiates the benefit of the massing, that
surviving T cannot subsequently alter the provisions of the
mutual will.
▪ Testamentary provisions in a registered antenuptial
contract cannot be unilaterally changed.
❖ Elements
➢ Two essential elements for revocation:
▪ Intention to revoke (animus revocandi).
▪ A legally recognized act to manifest this intention.
➢ Revocation is effective only when both elements are met.
❖ Section 2A of the Wills Act
➢ If intention is present but not manifested legally, a court may
order revocation under section 2A of the Wills Act.
➢ An oral declaration to revoke a will is ineffective.
➢ Revocation of a will that revokes an earlier will does not
automatically revive the earlier will.
Methods of Overview
Revocation ❖ South African common law recognizes four methods of
revocation of a will:
➢ Destruction of the whole will
➢ Destruction of part of a will
➢ Express revocation (including informal revocation)
➢ Implied revocation
❖ Courts have statutory power to declare a will revoked under
certain conditions, particularly in cases of divorce, if
requirements of relevant sections are satisfied.
❖ Common law methods of revocation are further discussed.

Destruction of Overview
the whole will ❖ Important Aspects
➢ Destruction of a whole will can occur without formalities if
there's no intention to revoke (animo revocandi).
➢ Accidental destruction does not revoke the will.
➢ Physical destruction can include burning, defacing, tearing
up, or writing "cancelled" or "revoked" on the will.
➢ Destruction of a witness's signature can revoke the will if it
reduces the number of witnesses below the legal
requirement.
➢ Merely writing "cancelled" in the margins does not
constitute destruction and may not revoke the will.
➢ Courts have some flexibility in determining if a will has been
revoked based on symbolic acts of destruction.
➢ A copy of the will can be revoked by acts of destruction,
even if the original remains intact, as long as the testator's
intention is clear.
➢ If a properly executed original is left intact without
explanation, it may indicate the testator's intention for the
will to remain in force.
➢ Although merely writing in the margins “cancelled” or
“revoked” or similar will not actually revoke the will (because
it does not interfere with the actual wording of the will) it may
open the way to declaration of revocation by the court in
terms of s2A
❖ Case law
➢ Senekal v Meyer (1975)
▪ Discusses the effects of destruction on a will and the
requirement of witness signatures.
➢ Marais v The Master (1984)
➢ Addresses revocation through destruction of a copy and the
testator’s intent regarding the original will.
Destruction of Overview
Part of a Will ❖ A will can be partially revoked by destroying the relevant part with
intent to revoke.
❖ Examples include crossing out a paragraph, cutting it out, or
striking through an heir’s name.
❖ Partial destruction is considered an amendment of the will.
❖ Formal requirements for will amendments must be followed for
the revocation to be effective.
❖ If the revocation is ineffective, consider the application of section
2A.

Express and Express Revocation

Implied ❖ Generally
Revocation ➢ A testator can revoke previous wills by including a revocation
clause in a new will or a separate document.
➢ A new will does not automatically revoke previous wills
unless it includes a specific revocation clause.
➢ A typical revocation clause might state: “Thereby revoke all
wills and other testamentary writings previously made by
me.”
➢ Oral revocation of a will is not valid, and section 2A cannot be
used for oral revocations.
❖ Informal Documents
➢ Sonnekus argues that an express revocation in an informal
document can be valid if:
▪ The intention to revoke is clear.
▪ The testator is identifiable as the one revoking, often
through a signature.
➢ Limited judicial authority exists on this argument, and it’s
unlikely that such revocations would be accepted.
➢ If a revocation clause is included in a signed will without the
testator’s knowledge, evidence can be presented to
determine the true intentions, and the clause may be
disregarded (pro non scripto).
❖ 4 different ways in which express revocation can take place
➢ A valid will complying with section 2(1)(a) formalities,
containing a revocation clause.
➢ A valid codicil complying with section 2(1)(a) formalities,
containing a revocation clause.
➢ A valid antenuptial contract complying with section 87 of
the Deeds Registries Act, containing a revocation clause.
➢ A mere revocationary document, containing no testamentary
provisions except the testator’s intention to revoke, which is
validly executed according to section 2(1)(a).
➢ An invalid will, codicil, or amendment can be condoned by
the courts under section 2(3).
➢ The Louw v Engelbrecht case is the authority confirming that
oral revocation of a will is not valid.

Implied Revocation
❖ Generally
➢ Execution of a new will does not automatically revoke a
testator’s earlier will at death.
➢ Wills must be read together, especially if provisions conflict.
➢ Implied revocation occurs when a later will’s provisions are
inconsistent with an earlier will.
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❖ Case Law
➢ Vimpany v Attridge
▪ A later will that named one heir was held to revoke the
earlier will despite no explicit revocation clause.
➢ Pienaar v Master
▪ Two wills were interpreted together, where the later will
revoked legacies from the earlier will.
▪ The Supreme Court ruled that the complete scheme of the
later will superseded the earlier one.
❖ Ademption
➢ Ademption refers to the revocation of a legacy when a testator
voluntarily alienates an asset during their lifetime.
➢ This concept covers any form of disposing of an asset, like
selling or donating.
➢ A presumption arises that the testator revoked the bequest
when the specific asset is alienated.
➢ An item that lapsed due to ademption will not automatically
revive if the testator later reacquires it; it must be re-
bequeathed.
➢ If the testator did not voluntarily alienate an asset but was
forced to do so (e.g., to pay debts), the legacy is not
considered revoked.
➢ The executor has a duty to attempt to regain or repurchase the
asset to implement the legacy.
➢ The cost of repurchasing the asset should be paid from the
estate if possible.

❖ Series of steps to be followed in cases of implied revocation by

execution of a subsequent confliccting will:
➢ If wills do not conflict, they must be read together.
➢ If wills are conflicting, the later will is regarded as operative,
tacitly revoking earlier will.
➢ If there is uncertainty about which will is the latest, evidence
is admissible
➢ If it is impossible to determine which will is the latest, then all
wills regarded as inoperative since T’s intention is not
clear/impossible to carry out. T’s estate then devolves
intestate.
❖ An earlier will is only regarded as revoked insofar as it is
irreconcilable with the later will.

Presumptions Overview
Concerning ❖ Generally
the Revocation ➢ If a will is found damaged in the testator’s possession, it is
of Wills rebuttably presumed to have been revoked with intent to
revoke (animus revocandi).
➢ This presumption was illustrated in the case of Fram v Fram’s
Executrix, where a will was found with the signature cut out,
indicating destruction by the testator.
➢ If a will is in the testator’s possession but cannot be found
after a diligent search post-death, it is rebuttably presumed
to have been revoked.
➢ The presumption involves two aspects:
▪ An act of destruction occurred.
▪ The destruction was intended to revoke the will.
❖ Case Law
➢ Le Roux v Le Roux
▪ Supports the above presumption, where a will seen in
January 1960 was missing after the testator’s death in
1961, leading to a presumption of revocation.
➢ Ex Parte Warren
▪ In Ex parte Warren, it was noted that a testator usually
takes steps to preserve their will, supporting the
presumption of revocation if a will is lost or destroyed.
▪ The presumption does not apply if a third party holds the
will, as it would suggest that the testator did not intend to
revoke it.
➢ Sansole v Ncube
▪ Facts: T married to X, with a will in her favour. Upon their
divorce, T asked for the will back from his attorney. A copy
was sent to him instead of the original. T destroyed this
copy, then died.
▪ Finding: in these circumstances, the court found that T
intended to revoke his will, despite only destroying a copy
and not the original.
Doctrine of Overview
Dependent ❖ Generally
Relative ➢ A testator must have a valid intention (animus revocandi) to
Revocation revoke a previous will.
➢ Revocation can occur through executing a new will that
destroys the previous one, either physically or symbolically.
➢ If the new will does not comply with legal formalities, it is
invalid, and the previous will remains in effect.
➢ This principle is related to the doctrine of dependent relative
revocation, where the intention to revoke is conditional on the
validity of the new will.
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therefore, they may occasionally be minor mistakes. In such an event, please contact the
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59

❖ Example
➢ A testator creates a new will in 2016 but destroys a 1999 will.
If the 2016 will is invalid, the 1999 will stands.
❖ Case Law
➢ Le Roux v Le Roux
▪ In Le Roux v. Le Roux, the testator mistakenly believed
destroying the new will would revive an earlier will, which
was ruled not revoked.
➢ Prinsloo v The Master
▪ In Prinsloo v. The Master, despite the testator destroying a
will, the intention to replace it was not fulfilled, leaving the
destroyed will effective.
➢ Raabe v The Master
▪ Raabe v. The Master, a testator believed destroying a later
will would revive an earlier one, but the court found the
intention to revoke was absolute, keeping the earlier will
valid despite mistaken beliefs.
Section 2B of Overview
the Wills Act ❖ s2B states that if T dies within 3 months after the
divorce/annulment of his marriage, and he executed a will before
the dissolution that benefited his former spouse, then:
➢ The will must be implemented as if the former spouse
predeceased T.
➢ This applies unless the will clearly indicates an intention to
benefit the spouse despite the dissolution.
❖ Note: The will only lapses concerning the ex-spouse; it remains
valid for all other beneficiaries.
Conditional Overview
revocation ❖ Conditional revocation refers to the revocation of a will based on
the occurrence of an uncertain future event or suspensive
condition.
❖ Revocation only takes effect if the specified condition is fulfilled
or the event occurs.
❖ Example: “I revoke my will dated 10 January 1997 on the
condition that my son passes his BCom degree. If he acquires
this degree, I bequeath to him my financial advisory practice.”
The Revival of Overview
Wills ❖ Generally
➢ Revival of a will occurs when a previously revoked or lapsed
will is reinstated.
➢ Destruction of a will does not automatically revive an earlier
revoked will.
➢ Re-execution of a revoked will (signing it again in front of two
witnesses) can revive it.

➢ Prerequisite for revival is that the revoked will must still exist.
❖ Case Law
➢ Moses v Abinader
▪ The case created uncertainty about the methods of
revival.
▪ In Moses v Abinader, a testator created two wills, with
the second revoking the first, and later made a codicil
referencing the first will.
▪ The court concluded that the codicil did not revive the
first will.
▪ Key points from the case:
• The original will was validly executed.
• The document incorporating the will must also be
valid.
• The testator must clearly intend to revive the lapsed
or revoked will.
❖ Automatic Revival
➢ Automatic revival through mere mention in a subsequent will
or codicil is legally unattainable.
➢ Revival can occur through a codicil if both documents comply
with legal formalities.
➢ The burden of proving the testator’s intent to revive lies with
the person claiming revival.
❖ Wessels v Die Meester
➢ In Wessels v Die Meester, a will lapsed upon the testator’s
wife’s death due to lack of provisions for his estate.
➢ The testator executed a codicil under the mistaken belief that
the original will was still in force, indicating no intention to
revive it.
Revocation by Overview
the Court ❖ Section 2A of the Wills Act
➢ Section 2A of the Wills Act allows a court to declare a will or
part of it revoked if the testator shows intent to revoke through
written indication or acts before death.
➢ A court can only grant an order if there’s proof, on a balance
of probabilities, of the testator’s intent to revoke and that a
relevant action was performed.
➢ Relevant actions include:
▪ Making a written indication on the will (e.g., marking it or
writing “cancelled”).
▪ Performing an act apparent from the will’s face (e.g.,
cutting out a paragraph).
▪ Drafting another document intended to revoke the will.

➢ The testator’s intention must be clear in any document relied

upon for revocation.
❖ In Writing
➢ Courts require that revocatory intentions be
communicated in a written document, but other forms of
proof (like video) may be considered.
➢ Revocation orders cannot be based solely on a copy of the
will; it must relate to the original or duplicate original.
➢ A testator writing “cancelled” on a copy may not constitute
effective revocation unless the action meets the
requirements of section 2A.
➢ In cases like Henwick v The Master, revocation was denied
due to lack of proof of the testator’s direct instructions.
➢ The court distinguishes between revocation and amendment,
suggesting section 2A cannot be used when new material is
introduced alongside revocation.
➢ Courts may adopt a cautious approach, ensuring that
intentions to revoke are clearly expressed and evidenced.
❖ Case Law
➢ Letsekga v The Master
▪ Established that notes indicating future changes do not
revoke a will unless intended as such.
➢ Henwick v The Master
▪ Order for revocation was refused due to insufficient proof
that a codicil was drafted on the testator’s instructions.
➢ Mdlulu v Delarey
▪ Held that a document must be presented to establish
revocatory intent, emphasizing the need for written
communication of intention.
➢ Webster v The Master
▪ Clarified that marking changes on a copy of the will does
not constitute revocation of the original.
➢ Marais v The Master
▪ Determined that acts symbolic of destruction can be
sufficient for revocation if the testator intended it.
➢ Olivier v Die MeesterIn re Boedel Wyle Olivier
▪ Addressed the potential conflict between sections 2(3)
and 2A, indicating that revocation should be clear and not
combined with amendments.
Customary Overview
Law of ❖ A will of a person under customary law is governed by common
Succession law and the Wills Act.
❖ The testator has the freedom to create and revoke a will.
❖ Sections 2A and 2(3) of the Wills Act apply.
❖ Principles regarding the revival of wills are relevant
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therefore, they may occasionally be minor mistakes. In such an event, please contact the
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62

Chapter 7
Introduction Overview
❖ Beneficiaries must be competent to inherit.
❖ Capacity to inherit differs from testamentary capacity.
❖ All juristic or natural persons, born or unborn, can inherit either
testate or intestate.
❖ South African law defines categories of beneficiaries with
capacity to inherit.
❖ There are specific circumstances where beneficiaries may be
disqualified from inheriting.
❖ Capacity to inherit applies in both common and customary law.
Persons Overview
Capable of ❖ A natural person, regardless of age, mental condition, or legal
Inheriting: status, has the capacity to inherit.
Natural Persons ❖ Every natural person is capable of acquiring a vested right to an
inheritance.
❖ The capacity to inherit is distinct from the right to enjoy the
inheritance.
❖ A person may acquire a vested right to an inheritance without
having the immediate right to enjoy it.
❖ This distinction is relevant in cases involving minors, individuals
with mental disabilities, or beneficiaries whose legal status
(e.g., insolvency) is impaired.

Major Beneficiaries of Sound Mind with Legal Standing

❖ A person must be a major (18 years or older).
❖ The person must be of sound mind.
❖ The person must not be insolvent.
❖ The person must not repudiate the inheritance.
❖ Such a person will acquire a vested right to an unconditional
inheritance.
❖ The person will have the ability to enjoy the inheritance without
restrictions.

Minor Beneficiary
❖ Generally
➢ A minor (under 18) can inherit, but their ability to enjoy the
inheritance is restricted.
➢ The Court supervises the administration of a minor’s
property through the minor’s guardian or a court-appointed
curator if no guardian is available.
❖ Moveable and Immoveable Property
➢ Movable and immovable property are treated differently
when inherited by minors.

➢ If a minor inherits movable property (e.g., a car), they

acquire a vested right upon the deceased’s death. If the
minor dies after, the property is part of the minor’s estate
unless the will indicates otherwise.
➢ Movable property is not physically delivered to the minor but
managed by the guardian for the minor’s benefit.
❖ Inheriting Money
➢ If a minor inherits money, it is deposited into the Guardian’s
Fund, administered by the Master of the High Court, and can
be withdrawn by the guardian for the minor’s maintenance.
➢ The Master cannot disburse large sums (over R250,000)
from the Guardian’s Fund without court approval.
➢ Immovable property inherited by a minor is registered in the
minor’s name immediately, but the minor cannot sell,
pledge, or mortgage the property.
❖ Immoveable Property
➢ The minor's guardian, tutor, or curator administers the
immovable property until the minor reaches adulthood.
➢ A tutor is appointed in a will by a parent to act as guardian if
the parent is unavailable.
➢ To alienate or mortgage immovable property, the guardian or
tutor must get the Master’s consent if the value is below
R250,000 or High Court approval if it exceeds this amount.
➢ The Master may approve mortgages for up to R250,000 if
necessary for property preservation, maintenance, or
education of the minor.
➢ For alienation, the Master or High Court must be satisfied
that it is in the minor’s interest.

Nasciturus (or Unborn)

❖ South African law, influenced by Roman and Roman-Dutch law,
recognizes the right of an unborn child (nasciturus) to inherit.
❖ The nasciturus fiction applies under these conditions:
➢ The child must have been conceived at the time the
inheritance is passed.
➢ The inheritance must benefit the unborn child.
➢ The child must be born alive, even if just for a moment. If
stillborn, the child cannot inherit.
❖ In the case of intestate succession, if the child is conceived at
the time of the deceased’s death and is born alive, they inherit
like any other heir.

❖ Section 2D(1)(c) of the Wills Act – For Testate Succession

➢ A benefit allocated to a person’s children or class members
vests in those alive at the time of the inheritance or
conceived and later born alive.
➢ The nasciturus fiction applies unless there is a clear
contrary intention in the will.
➢ In testamentary succession, benefits may be conditional or
unconditional, and the fiction applies to children conceived
at the time of inheritance and later born alive.
➢ A nasciturus inheriting through either testate or intestate
succession is treated similarly to a minor beneficiary.

Extramarital Children
❖ Under common law, children born of incestuous, adulterous, or
extramarital relationships could only inherit under specific
circumstances.
❖ Section 2D(1)(b) of the Wills Act and Section 1(2) of the
Intestate Succession Act now give extramarital children the
same status as children born within wedlock in both testate and
intestate succession.

Persons of Unsound Mind

❖ Generally
➢ Persons of unsound mind include not only the insane or
delusional but also those acting irrationally due to drugs,
alcohol, or disease.
➢ In the law of succession, a person of unsound mind can
inherit, but restrictions may apply to the enjoyment of the
inheritance.
➢ If a beneficiary is declared of unsound mind, a court-
appointed curator will administer the inheritance on their
behalf, similar to how a minor’s property is managed.

❖ Importance of a Court Order

➢ Without a court order, the beneficiary is treated as a person
of sound mind.
➢ The applicant must prove that the beneficiary cannot
sensibly manage the property when applying to the court.
➢ A prodigal (spendthrift) is not considered of unsound mind,
but their ability to handle their estate is restricted and
requires a court-appointed curator.
Insolvents
❖ General Rule
➢ An insolvent person retains the ability to inherit.
❖ Consequences
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➢ However, any property they own becomes part of the

insolvent estate.
➢ The property must be administered by a trustee for the
benefit of creditors.
➢ In most cases, the property will need to be sold, and
proceeds will be distributed to creditors based on the
Insolvency Act’s order of preference.
➢ As part of estate planning, a testator can include a clause in
the will stating that if any heir is insolvent, the inheritance
may be forfeited.
➢ The inheritance can then be directed to a substitute heir or
placed in a trust.
➢ This type of clause is not considered against public policy.

Persons Overview
Capable of ❖ Generally
Inheriting: ➢ Persons can inherit intestate under the Intestate
Juristic Persons Succession Act.
➢ The act does not prevent a testator from nominating a
company or close corporation as a beneficiary.
➢ A company or close corporation can inherit unless an
authorized director or member repudiates the inheritance.
❖ Repudiation
➢ Repudiation must occur within a reasonable time after the
company gains the capacity to inherit.
➢ If a company or close corporation is insolvent or under
judicial management, it is unclear whether directors or
members can repudiate the inheritance.
➢ Repudiating to the detriment of creditors may breach the
fiduciary duties of directors or members.

❖ Other Entities
➢ Other entities like trusts, voluntary associations,
syndicates, firms, and partnerships can be nominated as
beneficiaries in a will.
➢ The handling of inherited property in cases of insolvency for
these entities is complex and relates to insolvency law.
➢ These entities may repudiate an inheritance through their
human agents, though the matter was not fully addressed in
the case of Wessels v De Jager.
➢ Entities without corporate personalities may allow
individuals behind them to repudiate an inheritance by
majority vote or special resolution.

❖ Wessels v De Jager
➢ There is debate regarding the conflict between the Wessels
case and previous law that suggests a beneficiary’s right to
claim a bequest vests at delatio (dies cedit).
➢ The vesting of this right should not be postponed until the
beneficiary formally accepts (adiates).
Persons Overview
Disqualified ❖ Common law prohibits a person from benefiting from their own
from Inheriting wrongdoing. (Bloody hand rule)
❖ Several categories of individuals are precluded from
inheriting due to their actions.

Beneficiary who caused the death of the deceased or

Coniunctissimi of the deceased
❖ Generally (The Bloody Hand Principle)
➢ Beneficiaries responsible for the death of the deceased or
their close relatives (coniunctissimi) are disqualified from
inheriting.
➢ Coniunctissimi includes the surviving spouse, parents,
and children; coniunctissimus refers to one person, while
coniunctissimi refers to multiple.
➢ According to common law, anyone assisting a killer is also
disqualified from inheriting.
➢ The Roman-Dutch law maxim “de bloedige hand neemt
geen erf” applies, meaning a person cannot inherit if they
have caused the death of the deceased, whether
intentionally or negligently.
➢ Courts are generally reluctant to relax this maxim without
legislative intervention.
➢ A person responsible for the death does not automatically
face disqualification; a court order is needed for
disqualification.
❖ What the Courts have said
➢ In Casey v The Master, the court held that the onus of proof
lies with the party alleging disqualification.
➢ A criminal conviction is not a prerequisite for
disqualification; evidence must be presented in civil
matters.
➢ Legal and factual causation issues arise when determining
disqualification, as shown in various case scenarios.
➢ The case of Ex parte Steenkamp raised questions about
causation and the status of grandparents or grandchildren
as coniunctissimi, but the court was hesitant to expand the
definition.

➢ Recent extensions of the bloedige hand maxim were noted

in Makhanya v Minister of Finance, where a convicted
spouse was denied pension benefits from the deceased’s
estate.
➢ The recent case of Leeb v Leeb established that a spouse
who kills their partner can be disqualified from matrimonial
property benefits.
➢ Courts may preclude a spouse from inheriting benefits if
they are found to have caused the death, upholding the
principle of unworthiness.
❖ Cases
➢ Casey v The Master – 1992 (4) SA 505 (N)
▪ Principle: The act of murder disqualifies a beneficiary
from receiving an inheritance. This case affirmed that a
beneficiary who intentionally kills the deceased cannot
inherit from the estate.
➢ Caldwell v Erasmus – 1952 (4) SA 43 (T)
▪ Principle: Disqualified a beneficiary who assisted in the
murder of the deceased from inheriting.
➢ Ex parte Steenkamp and Steenkamp – 1952 (1) SA 744 (T)
▪ Principle: Clarified that a murderer cannot inherit from
the estate of the deceased they killed, even if they were
not the direct cause of death.
➢ Leeb v Leeb – [1999] 2 All SA 588 (N)
▪ Principle: Established that the will can specify
disqualification for inheritance due to misconduct,
which must be clearly stated.
➢ Danielz v De Wet – 2009 (6) SA 42 (C)
▪ Principle: Discussed the implications of criminal
behavior on inheritance rights.
➢ Makhanya v Minister of Finance – 2001 (2) SA 1251 (D)
▪ Principle: Related to statutory disqualification for
persons involved in the death of the deceased.
➢ Nell v Nell – 1976 (3) SA 700 (T)
▪ Principle: Explored the consequences of beneficiary
misconduct on their right to inherit.
➢ Ex parte Vonzel – 1953 (1) SA 122 (C)
▪ Principle: Confirmed that a person convicted of murder
cannot inherit from the estate of their victim.
➢ Smit v Master
▪ Principle: Discussed the legality and consequences of
inheritance in cases where a beneficiary is implicated in
the death of the deceased.

Indignus (Unworthy Person)

❖ Indignus refers to a person who unlawfully causes the death of
a deceased or their close relatives, rendering them unworthy of
inheriting.
❖ The term applies to anyone lacking merit, not just those who kill,
and is influenced by public policy.
❖ An indignus is a beneficiary barred from inheritance due to
unworthy conduct.
❖ L Taylor v AE Pim
➢ In L Taylor v AE Pim, Rebecca Bingham’s will, which left her
estate to Mr. Pim, was contested by her sister. The deceased
was deemed to have lacked testamentary capacity due to
excessive alcohol consumption and alleged coercion by
Pim.
▪ The court found Insufficient evidence of undue influence
or lack of sound mind at the will’s execution.
▪ However, it concluded that Pim was an indignus due to
his role in Rebecca’s moral decline.
❖ Danielz v De Wet
➢ In Danielz v De Wet, the court expanded the indignus
principle to include beneficiaries involved in the death of the
deceased, emphasizing that no one should benefit from
their wrongful actions.
▪ The case raised legal uncertainties regarding the
application of the bloedige hand maxim and its
extension beyond murder.
❖ Pillay v Nagan
➢ In Pillay v Nagan, a son forged his mother’s will, leading to
his disqualification from inheriting due to fraudulent
conduct.
❖ Key principles regarding indignus from these cases:
➢ The indignus principle is recognized in South African law
and aligned with public policy.
➢ Courts can disqualify a beneficiary based on public policy
even if common law is silent on specific acts.
➢ An indignus is disqualified from inheriting under both
testate and intestate succession.

Persons Involved in the Execution Process

❖ Section 4A of the Wills Act
➢ Section 4A of the Wills Act disqualifies beneficiaries
involved in the execution of a will from benefiting.
➢ Disqualification applies to those who witness, write, or are
spouses of witnesses at the will’s execution.
➢ A beneficiary who types a dictated will is not disqualified.
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➢ Section 4A(2) outlines exceptions to disqualification based

on inheritance amounts.
➢ If a disqualified beneficiary’s inheritance is less than what
they would receive intestate, disqualification is lifted
without court involvement.
➢ The presence of two competent witnesses who do not
inherit allows for the disregard of disqualification.
➢ If neither exception applies, a court application is needed to
prove the beneficiary did not unduly influence the testator.
➢ Section 4A(2) only applies to validly executed wills; invalid
wills require court condonation.
➢ The Master can determine disqualification under certain
conditions; otherwise, the High Court must be approached.

Consequences of Disqualification
❖ Common Law
➢ Under common law, a disqualified beneficiary’s
descendants were also disqualified from inheriting.
❖ Section 2C of the Wills Act and Section 1(7) of Intestate
Succession Act
➢ The legislature amended this position to prevent unfair
consequences for the children.
➢ Section 2C of the Wills Act and section 1(7) of the Intestate
Succession Act provide for substitution ex lege.
Customary Law Overview
of Succession ❖ The Wills Act and the Intestate Succession Act apply to estates
of individuals living under customary law.
❖ Principles regarding the capacity of beneficiaries to inherit are
applicable.
❖ Unofficial customary law (living law) may still influence a
beneficiary’s capacity to inherit.
❖ The constitutionality of those unofficial rules might be
questioned.

Chapter 8
Introduction Overview
❖ Freedom of testation refers to an individual's right to make
provisions in a valid will and decide how their estate is divided.
❖ A testator can appoint any beneficiary they choose.
❖ In South African law, testators have the autonomy to determine
the succession of their estates and can disinherit family
members if desired.
❖ The principle of voluntas testatoris servanda est mandates that
the testator's wishes in their will must be honored.
❖ The High Court cannot alter a testator's will against their express
intentions, even with beneficiary agreement.
❖ The court may only rectify a will under specific condition
❖ Schnetler v Die Meester gives an example illustrates a testator's
freedom of testation, highlighting their ability to exclude
beneficiaries.
❖ There are limitations on freedom of testation, including illegal
bequests, public policy restrictions, and vague provisions.
❖ The Immovable Property Act restricts a testator's power to
prohibit the transfer of immovable property.
❖ The Constitution prohibits discriminatory clauses in wills.
❖ Claims for maintenance can indirectly restrict a testator's
freedom, with disinherited children and surviving spouses
eligible for maintenance claims.
❖ Generally, a testator must personally exercise their freedom of
testation and cannot delegate this power, except in specific
circumstances such as charitable bequests or allowing an
interim rights holder to nominate beneficiaries.
Limitations on Statutory limitations
freedom of ❖ Statutory provisions limit a testator's freedom of testation, with
testation the Immovable Property (Removal or Modification of
Restrictions) Act being significant.
❖ The Act prohibits testators from preventing the alienation of land
through long-term fideicommissa or similar provisions in their
wills.
❖ Sections 6, 7, and 8 restrict long-term provisions to two
fideicommissaries.
❖ Sections 2 and 3 allow courts to remove restrictions on
immovable property if it benefits the person entitled to the
property.
❖ Example: In 1968, Xavier left property to Thembeka but
restricted it to two hectares. The restrictions hindered property
development, which was beneficial for Xavier.
❖ In 2020, the High Court allowed the removal of restrictions to
enable property development for financial gain.
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❖ Section 33(1) of the General Law Amendment Act empowers the

court to authorize the alienation or mortgage of restricted
immovable property for unborn beneficiaries, treating them as if
they were living minors.

Common law limitations

❖ Courts do not enforce conditions in wills that are contrary to
public policy.
❖ Public policy evolves over time; what was considered immoral
may become acceptable.
❖ Public policy is now part of the Constitution, influencing court
decisions.
❖ The Minister of Education sought to remove discriminatory
provisions based on:
1. Trust Property Control Act’s authority to vary provisions
conflicting with public interest.
2. Common law prohibiting illegal or immoral bequests.
3. Constitutional provisions against discrimination.
❖ The court noted that freedom of testation is not absolute;
restrictions exist.
❖ Discriminatory provisions based on race, gender, or religion are
deemed against public policy.
❖ The court recognized that provisions limiting eligibility based on
race constituted unfair discrimination.
❖ The court balanced freedom of testation with the right to
equality under the Constitution.
❖ Exceptions exist for conditions preventing remarriage for
surviving spouses to protect children’s interests.
❖ The principle of freedom of testation is subject to limitations
based on public policy.
❖ Conditions intended to dissolve existing marriages are contra
bonos mores.
❖ Conditions in wills that interfere with marital relationships are
typically void for being contra bonos mores.
Cases
❖ Minister of Education v Syfrets Trust Ltd
➢ A testator’s will restricted bursaries to white, non-Jewish
male students.
❖ De Wayer v SPCA Johannesburg
➢ A condition preventing marriage was ruled as contra bonos
mores.
❖ King v De Jager
➢ A will specified that property only pass to male descendants,
which was challenged for being discriminatory.
❖ Ex parte Gitelson
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➢ A condition requiring security for an inheritance if the widow

remarried was upheld.
❖ Levy v Schwartz
➢ A provision requiring marriage dissolution for inheritance
was ruled against public policy.
❖ Ex parte Swanevelder
➢ The court found that conditions causing discord without
intent to dissolve marriage were valid.
❖ Barclays Bank DC & O v Anderson
➢ Provisions requiring personal occupation of land were
upheld despite potential marital strain.

Constitutional limitations
❖ Changes in public policy and contra bonos mores are reflected
in the Constitution.
❖ Certain conditions may be declared invalid based on the
Constitution.
❖ Section 9(3) of the Constitution outlines factors that cannot be
used for unfair discrimination.
❖ Section 9(4) prohibits unfair discrimination based on race,
gender, sex, pregnancy, marital status, ethnic or social origin,
color, sexual orientation, age, disability, religion, conscience,
belief, culture, language, or birth.
❖ Section 9(4) applies horizontally between all natural and juristic
persons.
❖ Sections 18 and 21 guarantee freedom of association,
movement, and residence.
❖ Provisions that prohibit marrying based on race or faith or
require a beneficiary to reside in a certain location may be
deemed against public policy and invalid.
❖ Minister of Education, Syfrets Trust Ltd, Curators Ad Litem to
Certain Potential Beneficiaries of Emma Smith Educational
Fund v The University of KwaZulu-Natal, and King v De Jager
illustrate the Constitution’s impact on a testator’s freedom of
testation.
Indirect Maintenance of Children
limitations ❖ Testators can disinherit their children, but the duty to maintain
and educate minor children remains an obligation on the estate.
❖ This obligation does not cease upon the testator's death and is
based on the needs of the children.
❖ Maintenance is determined by the child's standard of living and
may continue until the child reaches adulthood.
❖ Major children who cannot support themselves are entitled to
claim support from their deceased parent's estate.

❖ The primary obligation to provide maintenance falls on the living

parent or relatives before the deceased parent's estate is liable.
❖ A child’s maintenance claim ranks after creditors but is
prioritized over legatees and heirs.
❖ Ex parte Jacobs
➢ A major daughter’s claim for maintenance was first directed
to her husband; the father’s estate was only liable if the
husband could not fulfill this obligation.

Maintenance of the Surviving Spouse

❖ Under the Maintenance of Surviving Spouses Act, a surviving
spouse has a claim against the deceased spouse’s estate for
reasonable maintenance if unable to provide for themselves.
❖ Reasonable maintenance needs are assessed based on:
1. Existing and expected means, earning capacity, and
financial obligations of the surviving spouse.
2. Standard of living during the marriage and the age of the
surviving spouse at the time of death
❖ The maintenance claim from a surviving spouse holds the same
priority as that of a dependent child.
❖ If claims from the survivor and a dependent child compete, they
are reduced proportionately.
❖ Executors can make agreements regarding the settlement of
maintenance claims, including creating trusts or transferring
assets.

Meaning of 'Spouse'
❖ The Maintenance of Surviving Spouses Act does not define
'spouse,' leading to ambiguity.
❖ The Constitutional Court interpreted 'spouse' and 'survivor' in
relation to marriages and life partnerships.
❖ The court recognized that marriage and family are significant
social institutions, allowing differentiation between married and
unmarried persons.
❖ Daniels v Campbell
❖ The court ruled that a monogamous Muslim marriage qualifies a
partner as a 'spouse' for inheritance and maintenance claims.
❖ Hassam v Jacobs
➢ Extended this to include polygamous Muslim marriages,
affirming that surviving partners can inherit and claim
maintenance.
❖ Volks v Robinson
➢ The court ruled that the exclusion of permanent life partners
from the Maintenance of Surviving Spouses Act was not
unconstitutional.
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❖ Bwanya v Master of the High Court

➢ The court revised the Maintenance of Surviving Spouses Act
to include partners in permanent life partnerships.
RCLSA and 'Spouse'
❖ The RCLSA (Recognition of Customary Law of Succession Act)
includes additional categories of spouses:
❖ Spouse in a customary marriage recognized under the RCLSA.
❖ A woman providing children for her spouse's household
(substitute wife).
❖ A woman married to another woman for the same purpose
(woman-to-woman marriage).
Civil Union Act
❖ The Civil Union Act recognizes voluntary unions of two persons
of any gender.
❖ Legal consequences of a civil union mirror those of a marriage.
❖ References to marriage in other laws also apply to civil unions,
allowing civil union partners to claim maintenance and inherit
under the Intestate Succession Act.
Who Qualifies as a Spouse under Different Acts
❖ Marriage Act: Monogamous spouse (heterosexual).
❖ Civil Union Act: Monogamous spouse (heterosexual or same-
sex).
❖ Recognition of Customary Marriages Act: Monogamous or
polygynous customary law spouse.
❖ RCLSA: Woman-to-woman marriage and/or substitute wife.
❖ Daniels v Campbell: Monogamous Muslim law spouse.
❖ Hassam v Jacobs: Polygynous Muslim law spouse.
Power of Overview
appointment ❖ Testators have significant freedom to appoint beneficiaries in
South African law, known as testamentary power.
❖ This power must be exercised by the testator personally; they
cannot delegate the decision-making regarding beneficiaries to
others.
❖ Testators may not allow beneficiaries to decide if they will keep
property or pass it on to others.
Examples of Power of Appointment:
❖ Ben's will states his estate goes to his daughter Bernadine, but
he does not validly confer appointment power to her since he
did not exercise his testamentary power.
❖ Ayanda's will indicates her estate will be inherited by her
daughter Dineo's descendants. This is valid as she identifies the
class of beneficiaries.
❖ Schalk allows his daughter Delores to appoint beneficiaries of
his estate. This is an example of general power of appointment,
which may be legally ambiguous.
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Exceptions to Non-delegation Rule:

1. Bequests for Charitable Purposes:
❖ Testators can authorize beneficiaries or executors to appoint
specific beneficiaries for charitable purposes.
➢ Example: Stefano creates a trust for animal welfare, allowing
the trustee to select beneficiaries from a broad charitable
category.
2. Delegation to Bearers of Interim Rights:
❖ Interim right bearers have limited rights to the testator's assets
and must transfer them to others.
➢ Example: Mrs. Oliver, as fiduciary of her father’s farm, can
appoint beneficiaries upon her death, as the power is
conferred validly.

Case Law:
❖ Estate Orpen v Estate Atkinson
➢ A fiduciary's death before the testator prevents them from
exercising their power of appointment.
➢ Historically, power of appointment was only conferred in the
context of a fideicommissum, but can now also be granted
to usufructuaries and trustees.
❖ Braun v Blann and Botha
➢ The Appellate Division affirmed that trustees can have
appointment powers but must select beneficiaries from a
specified group.

Considerations for Valid Power of Appointment:

❖ If a will restricts beneficiaries to lawful issue only, extramarital
children may argue such restrictions are discriminatory and
invalid.
❖ Courts balance testator's freedom of testation against potential
human rights infringements of beneficiaries.
❖ Constitutional protection for freedom of testation includes
rights to property, dignity, and privacy, allowing testators to act
within the law without necessarily treating beneficiaries equally.
Customary law Overview
of succession ❖ Section 23(1) of the Black Administration Act limited the
freedom of testation for individuals living under customary law.
❖ It stated that all movable property belonging to a Black person
and allotted under Black law and custom to a woman in a
customary union or to any house must devolve and be
administered under Black law upon the person's death.
❖ Section 23(2) excluded movable property from testamentary
dispositions, requiring it to devolve according to specified
succession rules.
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❖ These provisions prohibited individuals under customary law

from making wills for customary property and quitrent land.
❖ However, testators could still dispose of their personal property
through a will.
❖ The Constitutional Court declared Section 23 invalid in Bhe v
Magistrate Khayelitsha and it was repealed on 12 April 2006.
❖ Post-repeal, individuals under customary law gained full
freedom of testation over all property, subject to applicable
matrimonial property systems and common law limitations.
❖ Testators may specify that customary law applies to their
estate's devolution in their wills, but this could lead to
complications regarding beneficiary identification.
❖ Delegating the power to appoint beneficiaries to someone
other than the deceased (e.g., an executor) could violate
common law restrictions on power of appointment.
❖ Section 4(1) of the RCLSA affirms a woman's freedom to
dispose of her property through a will under customary law.
❖ Section 4(2) recognizes that a customary law estate can be
devolved according to a person's testamentary provisions.
❖ A will that stipulates the estate must devolve according to the
customary law of the Tswana people raises issues, as these
rules may not be easily accessible.
❖ Community elders or experts often clarify the devolution
process, potentially leading to a delegation of testamentary
power.
❖ Customary law may activate the rule of male primogeniture,
leading to gender- and age-based unequal distribution, which
was deemed unconstitutional in Bhe v Magistrate, Khayelitsha.
❖ Rautenbach argues that a testator could indirectly revive male
primogeniture through testamentary provisions.
❖ Common law allows a testator to discriminate between family
members in inheritance, a principle supported by the
Constitutional Court in King v De Jager and Wilkinson v
Crawford.

Chapter 9
Introduction Overview
❖ In South African law, testators have nearly unlimited freedom
of testation.
❖ Testators can include any stipulations or wording in their wills.
❖ Over time, recurring legal concepts in wills have been identified
and named.
❖ These concepts have been defined by courts and legal writers,
with their consequences explained.
❖ Each concept affects the vesting of beneficiaries' rights and
how they handle their inheritance.
❖ When drafting a will, the consequences of each stipulation
must be carefully considered.
❖ It is difficult to predict how each stipulation will be interpreted
after the testator's death.
❖ The outcome depends largely on the testator's intention.
❖ The precedent system (stare decisis) is used in South African
law, meaning courts follow previous decisions.
❖ This system helps create a common understanding of how the
law should be interpreted.

Vesting of Overview
Rights ❖ Vesting occurs when a benefit is left to a beneficiary,
granting them certain rights after the testator’s death.
➢ Example: “I leave my house to my daughter, Delia.” Once the
rights to the house have unconditionally vested, Delia has
all the rights of ownership, such as using and selling the
house.
❖ Vesting applies to both testate and intestate succession.
❖ Dies Cedit and Dies Venit
➢ Vesting consists of two moments: dies cedit (the right to
claim delivery of the benefit) and dies venit (the right to
enforce delivery).
▪ Example: Toby’s will states: “I leave my house to my son,
Xeno. My wife may live in the house for ten years after my
death.” Here, dies cedit occurs when Toby dies, and Xeno
gains a vested right, but dies venit is delayed for 10 years
as his mother occupies the house. If Xeno dies before
the 10 years end, his heirs inherit his vested right.
➢ If the testator imposes a condition, dies cedit may not take
place until the condition is fulfilled.
▪ Example: “I leave my house to my son, Xeno, if he
obtains an LLB degree.” Here, dies cedit does not occur
until Xeno gets the degree. If Xeno dies before earning

the degree, the house will not pass to his heirs since the
right has not vested.
➢ Accrual does not operate once a beneficiary’s rights have
vested.
▪ Example: “I leave my house to my friends, Xavier and
Yolanda.” If Xavier dies before Ted, the house may pass
fully to Yolanda if Ted intended accrual. However, if
Xavier dies two months after Ted, his share has vested,
and his heirs, not Yolanda, will inherit it.
❖ Vesting is important in distributing surplus capital or income
among trust beneficiaries.
➢ Example: Thabiso creates a trust where income is
distributed annually to his sons, meaning dies cedit and dies
venit for the income occur every March 1. The capital will
vest when his youngest son turns 25, at which point it will be
shared among the sons.
❖ Vesting can determine the acceleration of interests when a
beneficiary repudiates or renounces their rights.
➢ Example: Theresa leaves her farm to her husband, William,
with the condition that it passes to her son, Jonty, if William
remarries. When William repudiates the farm after Theresa’s
death, it is likely the testator intended vesting to accelerate
to Jonty, making him the owner immediately.
Bequests Overview
❖ Absolute Bequest
➢ A bequest without conditions, vesting occurs immediately
upon the testator’s death.
➢ Example: “I leave my house to my daughter, Donna.”
❖ Conditional Bequest
➢ Vesting occurs only upon a future uncertain event.
➢ Example: Postponing the transfer until a condition is met.
❖ Legacy and Legatee
➢ A legacy is a specific asset or amount of money left to a
beneficiary, known as a legatee.
➢ Example: John leaves his farm to Ben (legatee).
❖ Inheritance and Heir
➢ A bequest of the entire estate or a portion thereof is called
an inheritance, and the recipient is called an heir.
➢ Example: Ben and Crystal inherit the residue of the estate,
making them heirs.
❖ Pre-Legacy
➢ A legacy that must be paid before any other bequests.
➢ Example: “I leave R1 million to my wife, Marcia, to be paid
before others.”

❖ Residue or Residuary Estate

➢ The remaining estate after debts, legacies, and
administration costs are deducted. Heirs inherit the residue.
➢ Example: Ben and Crystal share R725,000 after all
expenses and legacies are deducted.
❖ Insufficient Funds
➢ If the estate’s debts exceed the funds available, legacies are
proportionately reduced, and heirs may receive nothing.
❖ Collation
➢ Heirs may be required to account for benefits received
during the testator’s lifetime, but legatees are not.

When does a Legacy lapse?

❖ A legacy may fail depending on the testator’s intention if effect
cannot be given to it.
❖ Ademption occurs when the testator voluntarily alienates the
object of a legacy, causing the legacy to fail. If alienation is
involuntary, the legatee may receive the value of the asset.
➢ Example 1 (Barrow v The Master): The sale of a farm by the
testator for convenience led to ademption as the will was
not updated, and the legacy lapsed.
➢ Example 2 (Tulani): A house was sold in execution, but since
the sale was involuntary and the testator did not intend to
revoke the legacy, the legatee was entitled to its value or the
asset itself.
❖ If a legatee dies before the legacy vests, they must be alive to
inherit unless section 2C of the Wills Act applies, which allows
for substitution.
❖ If a legatee repudiates the legacy and no substitute is named,
the legacy falls into the estate residue.
❖ A legatee cannot inherit if they are legally incompetent, such as
committing murder, causing the legacy to fall into the estate
residue.
❖ If the bequeathed object is destroyed, it is assumed that the
testator revoked the legacy.
❖ In cases of estate insolvency, legacies cannot be transferred to
legatees as the assets must go to creditors.
Time Clauses Overview
❖ A time clause refers to a provision in a will that subjects a
bequest to a future event, which may happen at a certain or
uncertain time.
❖ A suspensive time clause is a bequest where the beneficiary
receives the benefit at a specific future time.

❖ The beneficiary’s rights are postponed, but the benefit is

certain. The person must wait until the specified time to receive
the benefit.
➢ Example of a suspensive time clause: A testator leaves a
farm to their son but stipulates that it will only be transferred
when the son turns 21.
▪ The son gets a vested right at the testator’s death (dies
cedit), but the benefit is only enforceable when he turns
21 (dies venit).
❖ A resolutive (terminative) time clause ends the beneficiary’s
rights at a certain time in the future.
➢ Example of a terminative time clause: A testator leaves a
farm to their son, stating that when the son dies or reaches
age 60, the farm will go to a research institute.
▪ The son gains rights at the testator’s death, but those
rights terminate when he dies or turns 60.
Conditional Overview
Bequests ❖ Generally
➢ Conditional bequests depend on an uncertain future event.
➢ A valid condition must be clear, possible, and not illegal or
immoral.
➢ If the condition fails, the bequest becomes unconditional.
➢ There are two types of conditions:
▪ Resolutive (terminative); and
▪ Suspensive.
❖ Resolutive (terminative) condition:
➢ The bequest ends upon the occurrence of a specified
uncertain event.
➢ Example: A farm bequest to a wife that ends if she remarries,
with the farm going to SANParks.
➢ If the wife doesn’t remarry, the farm stays with her heirs.
❖ Suspensive condition:
➢ The beneficiary only obtains rights after a particular event
occurs.
▪ Example: A farm bequest to a son if he wins a race. If he
doesn’t win, he never inherits the farm.
▪ The condition delays the vesting of rights until the event
occurs.
❖ Fideicommissum:
➢ A conditional arrangement where the fiduciary’s rights are
subject to a resolutive condition, and the fideicommissary’s
rights are subject to a suspensive condition.
▪ Example: If Ayanda remarries, the farm goes to
SANParks, demonstrating both a resolutive and
suspensive condition.
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81

Nudum Overview
Praceptum ❖ Generally
➢ Nudum praeceptum refers to a prohibition that is not legally
binding.
➢ If a testator imposes a restriction on how a beneficiary may
deal with the property but does not nominate a substitute to
inherit if the restriction is violated, the prohibition is invalid
and called a nudum praeceptum.
❖ Example of a nudum praeceptum:
➢ A bequest where the testator prohibits the beneficiary from
leaving a property without naming an alternative heir if the
condition is broken.
❖ A valid prohibition requires naming a substitute beneficiary who
will inherit if the initial beneficiary violates the condition.
❖ This principle is essential in creating a valid fideicommissum,
as it requires a ‘gift over’ for legal validity.
Modus or Overview
Obligation ❖ Generally
➢ A modus is a qualification added to a testamentary bequest
that requires the beneficiary to use the property or value for
a specific purpose.
➢ The modus does not make the bequest conditional or
postpone the vesting of the beneficiary’s rights.
➢ If a beneficiary does not comply with the modus, it doesn’t
affect their rights, but they may be held liable through
personal action.
❖ Types of modus:
➢ Modus in the interest of the beneficiary: Example: A bequest
requiring funds to be used for education.
➢ Modus in the interest of a third person: Example: A bequest
requiring a beneficiary to pay money to another person.
➢ Modus for the furtherance of an impersonal object:
Example: A bequest requiring funds to decorate a grave.
❖ Difference between a modus and a condition:
➢ A modus does not affect the beneficiary's vested rights,
whereas a suspensive condition postpones the vesting.
➢ If a beneficiary with a modus dies before fulfilling it, the
benefit still devolves to their heirs.
➢ A suspensive condition results in the loss of the vested
rights if not fulfilled, but this does not apply to a modus.
Estate Massing Overview
❖ Generally
➢ Estate massing is a concept in South Africa often used in
joint or mutual wills, particularly by married couples.

➢ It involves two or more testators combining their estates into

a single unit for distribution upon the death of the first
spouse.
➢ This arrangement allows the surviving spouse to control the
massed estate and maintain their standard of living.
➢ Not limited to spouses or couples married in community of
property; other relationships, like siblings, can also create
estate massing.
❖ Requirements for estate massing include:
➢ Intent to consolidate estates.
➢ Disposal of both the deceased and survivor’s shares by the
first-dying testator.
➢ The surviving testator must accept (adiate) the massing.
❖ Aim of Estate massing
➢ Estate massing often aims to protect children while
providing for the surviving spouse, ensuring support and
education in line with the family’s standard of living.
❖ Methods of implementing estate massing include:
➢ Usufruct:
▪ The surviving spouse receives a lifelong usufruct, with
the massed estate going to children upon the survivor’s
death.
➢ Fideicommissum:
▪ The massed estate goes to the survivor and then to the
children in equal shares after the survivor’s death.
➢ Trust:
▪ The estate is held in trust for the survivor’s benefit, with
capital passing to children after the survivor’s death.
➢ Unlimited rights:
▪ The survivor receives outright ownership of the family
home, while other estate assets are divided among
children.
❖ Section 37 of the Administration of Estates Act
➢ Governs estate massing and requires:
▪ A mutual will with two or more testators.
▪ Consolidation of property into a mass for distribution.
▪ Limited interest for the survivor in the massed estate.
▪ The survivor must accept the benefit for massing to take
effect.
❖ Consequences of accepting (adiation) estate massing
include:
➢ The survivor loses the power to revoke the will.
➢ The survivor’s estate becomes part of the massed estate.
❖ If the survivor chooses not to accept (repudiation), they:
➢ Receive no benefit from the deceased’s estate.
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➢ Retain their estate and may dispose of it freely.

❖ Customary law allows for estate massing in wills to keep family
property within the family, though the surviving spouse may
repudiate the arrangement.

Chapter 10
Substitution Overview
❖ Generally
➢ Substitution is when a testator appoints a beneficiary to
inherit and another to take their place if needed.
❖ Types of substitution:
➢ Direct substitution: beneficiaries are appointed as
alternatives.
➢ Fideicommissary substitution: beneficiaries are appointed
successively.
❖ Bequests can be categorized as follows:
➢ Fideicommissary substitution: “first the one, then the
other.”
➢ Direct substitution: “either one or the other.”
▪ Implied direct substitution occurs automatically
according to law (ex lege substitution).
▪ Express direct substitution is specified by the testator in
the will.
❖ Conditional Substitution
➢ Express conditional substitution is also clearly stated by the
testator.
➢ Implied conditional substitution refers to circumstances
when a beneficiary dies without descendants (si sine liberis
decesserit).
❖ Conferment of Power
➢ Conferment of power of appointment refers to the testator
granting authority to a fiduciary.
➢ Other provisions are outlined in section 2C(2) of the Wills
Act, which is qualified by section 2C(1).
❖ Fideicommissum residui is another form of substitution.
Direct Overview
Substitution ❖ Generally
➢ Direct substitution occurs when a testator nominates an
alternative beneficiary to inherit if the primary beneficiary
does not take the benefit.
❖ Direct substitution is relevant when:
➢ The appointed beneficiary has predeceased the testator.
➢ The beneficiary is disqualified from benefiting.
➢ The beneficiary has repudiated the benefit.
➢ The benefit cannot be taken due to the non-fulfillment of a
condition.

❖ Direct substitution can be either:

➢ Express, as explicitly stated by the testator in the will.

➢ Implied by law (ex lege) according to section 2C of the Wills

Act.
❖ Testators utilize direct substitution to:
➢ Prevent the benefit from devolving under intestate
succession rules.
➢ Keep certain assets from becoming part of the estate’s
residue.
❖ Exclude the right of accrual

Express Direct Substitution by the Testator

❖ Express direct substitution allows for an alternative beneficiary
in a will.
➢ An example clause: “I bequeath my house to my friend, Xanor.
If Xanor predeceases me or cannot receive the benefit, the
house must pass to my niece, Yolandi.”
▪ Xanor is the primary beneficiary; Yolandi is the substitute
beneficiary.
• If Xanor is alive and able to inherit at the time of the
testator’s death, Yolandi does not receive the house.
• If Xanor predeceases the testator, repudiates the
benefit, or is disqualified, Yolandi will inherit the
house.
• The interests of Xanor and Yolandi are mutually
exclusive and depend on the circumstances of
Xanor’s ability to inherit.
❖ Ambiguity
➢ The wording of substitution clauses must reflect the
testator’s intentions clearly to avoid ambiguity.
➢ Ambiguity arises when it’s unclear if the testator intended
direct substitution or fideicommissary substitution,
particularly if contingent on the beneficiary’s death.
▪ Example of ambiguity: “I bequeath my house to my son,
Constantine. On his death, it must pass to his sister,
Erica.”
➢ This can be interpreted as either:
▪ Direct substitution if Constantine predeceases the
testator.
▪ Fideicommissary substitution if the house must first go
to Constantine before passing to Erica after his death.
➢ To clarify direct substitution, the testator must specify the
intended conditions clearly to avoid confusion between
direct and fideicommissary substitution.

Direct Section 2C
Substitution ❖ Generally
implied by Law ➢ Direct substitution is regulated by section 2C of the Wills Act.
❖ Section 2C(1)
➢ Section 2C(1) states that if a major descendant (not minor or
mentally ill) renounces their benefit from a will, the benefit
goes to the surviving spouse.
❖ Section 2C(2)
➢ Section 2C(2) allows descendants of a descendant who
would have inherited if they had not predeceased, been
disqualified, or renounced their benefit to inherit, unless the
will states otherwise.
➢ Section 2C(2) serves as a general rule for situations where a
descendant cannot inherit due to death, disqualification, or
renunciation.
➢ Section 2C(2) applies broadly to all descendants, including
grandchildren being represented by great-grandchildren.
❖ Differences between sections 2C(1) and 2C(2):
➢ Section 2C(1) applies only to major descendants entitled to
benefits alongside the surviving spouse who renounce their
benefits.
➢ Section 2C(2) covers all descendants, including class
bequests and descendants who may represent or substitute
for a predeceased or disqualified beneficiary.
➢ Section 2C(1) does not apply to ascendants or collaterals.
➢ Uncertainty exists about the interpretation of “together
entitled to a benefit.”
❖ Moosa v Minister of Justice
➢ The Constitutional Court clarified that “surviving spouse”
includes spouses from both monogamous and polygamous
Muslim marriages in Moosa v Minister of Justice.
➢ The court highlighted discrimination against surviving
spouses in polygamous Muslim marriages under section
2C(1) compared to civil marriages.
➢ Section 2C(1) is seen as unfairly discriminating against those
in Islamic marriages and denying them legal protection.

❖ Examples of application of section 2C:

➢ If George, a beneficiary, predeceases the testator but has a
son, Douglas, he inherits under section 2C(2).
➢ If Bill predeceases the testator and has a son, Harry, Harry
does not inherit since Bill is not a descendant.
➢ If Robson renounces his benefit, it accrues to the surviving
spouse, Tilly, under section 2C(1).

➢ If Sibu is disqualified, his son Tiny inherits under section

2C(2).
➢ If Fuad predeceases but has a son, Faizel, section 2C(2) does
not apply due to a contrary intention in the will.
➢ Uncertainty exists in cases where benefits are split, like
Calvin’s situation with Anne and Damian.

Fideicommissary substitution
❖ Generally
➢ A fideicommissum is when a testator directs a series of
beneficiaries to inherit an estate or specific assets
sequentially.
➢ The first beneficiary is the fiduciary, while the subsequent
beneficiaries are fideicommissaries.
➢ The fiduciary must transfer the property to the
fideicommissary upon a specified condition or event.
❖ Key requirements for a valid fideicommissum include:
➢ The testator must intend to create one.
➢ There must be a clear indication of the fiduciary, the
fideicommissary, and the assets involved.
➢ The fideicommissary condition must be valid.
❖ Additional Considerations
➢ A typical clause creating a fideicommissum involves multiple
beneficiaries inheriting one after another.
➢ The process involves at least three parties: the testator,
fiduciary, and fideicommissary.
❖ Different Kinds of Fideicommissum
➢ If there’s only one fideicommissary, it’s termed a
"fideicommissum simplex"; if there are multiple, it’s a
"fideicommissum multiplex."
❖ Multiple
➢ In cases with multiple fideicommissaries, each becomes the
owner subject to the obligation to pass the property to the
next.
➢ The intention to create a fideicommissum must be explicitly
clear to avoid ambiguity, as highlighted in the Raubenheimer
case.
➢ The court emphasized that terms like "usufruct" do not
necessarily determine the nature of the interest intended.
➢ Discrimination in a will based on gender, as in the King case,
can render clauses invalid under public policy and
constitutional law.
➢ The Constitution prohibits unfair discrimination in property
disposition, ensuring the invalidity of discriminatory clauses.

Various Forms of the Fideicommissum

❖ Generally
➢ A fideicommissum is generally created in a testator’s will and
has various forms.
❖ Conditional fideicommissum:
➢ This type involves the transfer of property to a beneficiary
based on the fulfillment of a specific condition.
➢ Example: A house is bequeathed to a wife, with the
stipulation that it goes to their son upon her remarriage.
❖ Rockman v Padayachee
➢ An inferred fideicommissum can be illustrated by the case
of Rockman v Padayachee, where a joint will created
ambiguity regarding a fideicommissum for the testators’
children.
▪ The court ruled that Neela Pillay was a fiduciary heir,
meaning she couldn’t dispose of the property against the
terms of the first will.
▪ The court stated that no specific wording is needed for a
fideicommissum, as long as the intention is clear in the
will.
▪ Neela Pillay’s acceptance of benefits from the first will
was seen as implied adiation, supporting the existence of
a fideicommissum.
• An example of a fideicommissum in diem includes
bequeathing a house to a wife, with it passing to a son
after ten years.
❖ Special power of appointment:
➢ A testator can grant a fiduciary the power to appoint the
fideicommissary.
➢ Example: A wife can decide which child receives a house
upon her death.

❖ Fideicommissum residui:
➢ This occurs when property is left to a fiduciary with the
remainder passing to another person after the fiduciary’s
death.
➢ Example: An entire estate left to a wife, with the remaining
assets going to their children after her death.
❖ Alienation
➢ The fiduciary can alienate part of the property, but certain
conditions apply regarding the remainder for the
fideicommissary.

❖ Implied Fideicommissum
➢ An implied fideicommissum can arise when the will’s
language indicates the testator’s intent, even if not explicitly
stated.
❖ Si sine liberis decesserit clause:
➢ Property is left to a beneficiary, with stipulations for
distribution if the beneficiary dies without children.
➢ Example: A house bequeathed to a daughter with provisions
for a son if she dies without offspring.
❖ Du Plessis v Strauss
➢ The case Du Plessis v Strauss established that a conditional
fideicommissum suggests the testator implicitly appointed
the beneficiaries.
➢ The presumption of tacit fideicommissum applies if the
beneficiaries are the testator’s descendants, provided there
are no contrary indications in the will.

Statutory Restriction on the Fideicommissum

❖ The duration of a fideicommissum on immovable property is
limited to two successive fideicommissaries according to
section 6 of the Immovable Property (Removal or Modification
of Restrictions) Act.
❖ Section 7 states that the Act has a retroactive effect, applying to
fideicommissa on immovable property created before the Act
came into operation.
➢ Under this limitation, the second fideicommissary (if alive)
will hold the property as a full unconditional owner and is not
required to pass it on to a third fideicommissary.
➢ The second fideicommissary may disregard the terms of the
will concerning the third fideicommissary.
➢ The Act only applies to fideicommissa over immovable
property; fideicommissa over movable property remain
effective for as long as the testator desires.

Legal Position of the parties to a fideicommissum

❖ Legal position of the fiduciary after the testator’s death
includes:
➢ Becomes owner of the property upon delivery or registration.
➢ Ownership is subject to a resolutive condition, which may
terminate rights if the condition is met or the term arrives; if
the fideicommissary predeceases the fiduciary, the fiduciary
gains full ownership.
➢ Ownership is limited; the fiduciary must transfer property to
the fideicommissary once the condition or term is fulfilled.

➢ Cannot alienate or encumber the property without

cooperation of all major fideicommissaries or High Court
consent; can alienate fiduciary interest.
➢ Must maintain the property’s essential qualities and is liable
for damages but can claim compensation for useful
improvements.
❖ Legal position of the fideicommissary includes:
➢ Right to receive fideicommissary property upon fulfillment of
the condition.
➢ Fideicommissary does not need to be alive at the testator’s
death but must be alive or conceived by the transfer time.
➢ If the fideicommissary dies before the condition is fulfilled,
the fideicommissum may fall away, and the fiduciary may
acquire full ownership unless stated otherwise in the will.
➢ Generally holds a personal right after the testator’s death,
with the right being actual and existing but not vested.
➢ Can take steps to protect their interest as an interested party.

Presumption Against a Fideicommissum

❖ Generally
➢ The distinction between direct and fideicommissary
substitution is crucial when interpreting a will.
➢ Fideicommissum limits the ownership of the fiduciary and all
fideicommissaries except the final one.
➢ Common law generally opposes fideicommissa due to the
burdens they impose on beneficiaries.
➢ The presumption against fideicommissa arises only when
there’s doubt about the testator’s intention regarding direct
versus fideicommissary substitution.
➢ This presumption does not apply when determining whether
the testator intended a fideicommissum or a usufruct, as
both can impose similar burdens.
➢ In cases of reasonable doubt about the testator’s intent
regarding substitution types, there is a presumption in favor
of direct substitution.
❖ Van Zyl v Van Zyl
➢ The Van Zyl v Van Zyl case clarified that fideicommissary
substitutions should be honored when the will’s wording
explicitly supports it.
Usufruct Overview
❖ Usufruct Definition
➢ A legal arrangement where ownership of property is given to
one person (dominus) while another person (usufructuary)
has the right to use, enjoy, and take the fruits from the
property.
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❖ Duration
➢ Usufruct typically lasts for the lifetime of the usufructuary.
❖ Property Return
➢ The usufructuary must return the property to the dominus
while preserving its substantial quality.
❖ Vested Ownership Rights
➢ The dominus obtains a vested right (dies cedit) upon the
testator’s death but cannot use or enjoy the property until a
future event (like the usufructuary’s death) occurs.
➢ Example: If a testator bequeaths a farm to Ralph and a
usufruct to his wife Lillian, Ralph’s right to use the farm is
delayed until Lillian’s death.
❖ Dominus Death
➢ If the dominus dies before the usufructuary, ownership
passes to the dominus’s beneficiaries but remains subject to
the usufruct.
❖ Vested Rights of Usufructuary
➢ Usufructuary’s rights (dies cedit and dies venit) arise at the
testator’s death but end when the usufructuary dies.
❖ Usufruct vs. Fideicommissum
➢ Both involve a right to use property, but usufruct does not
confer ownership, while fideicommissum does. The fiduciary
in a fideicommissum holds a real right that transfers to the
fideicommissary at a certain time.
❖ Comparison:
➢ Usufructuary: Not the owner, has limited real rights, cannot
become the owner.
➢ Fiduciary: Owner of the asset, can become the full owner,
ownership may pass to beneficiaries if the fiduciary dies.
❖ Common Law Accrual:
➢ The right of co-heirs or co-legatees to inherit a share from a
beneficiary who cannot or does not wish to inherit.
❖ Circumstances for Accrual:
➢ Predeceased co-heir or co-legatee
➢ Disqualified to inherit
➢ Repudiation of the benefit
➢ Unfulfilled suspensive conditions
❖ Conditions:
➢ Accrual only applies if there is no substitution provision by the
testator or under section 2C(2) of the Wills Act.
Common law Terminology
accrual ❖ Accrual
➢ The right of a testator’s beneficiaries to inherit a share
that another beneficiary cannot or does not want to
inherit.
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➢ Applies when a co-heir or co-legatee is:

▪ Predeceased
▪ Disqualified to inherit
▪ Repudiates the benefit
▪ Subject to a suspensive condition not fulfilled
➢ Only operates if no provision for substitution is made
by the testator or under Section 2C(2) of the Wills Act.
➢ Example of Accrual
▪ If a testator bequeaths a boat and camping
equipment to brothers Harvey and Zakes, and
Harvey predeceases the testator, the right of
accrual allows Zakes to inherit Harvey's share
unless a substitute is specified.
▪ If the testator bequeaths the same items to
sons Anton and Bernard and Anton
predeceases, Section 2C(2) allows Anton's
descendants to inherit instead, not accrual.

Intention of the Testator

❖ Determines whether accrual should apply. If the testator
explicitly states that accrual should not take place, then it will
not.
❖ In case of co-heirs or co-legatees, accrual operates unless
the testator intended otherwise.
❖ If the testator’s intention is unclear, it can be deduced from
the will or surrounding circumstances.

Modes of Joinder
❖ Joinder re tantum (joined by the thing): When property is left
to two beneficiaries in separate clauses. Inference that
accrual is intended unless stated otherwise.
➢ Example: Bequeathing the same house to Albert and
Ben in separate clauses.

❖ Joinder re et verbis (joined by the words and the thing): When

the same property is left to multiple beneficiaries in the same
clause with no shares allocated. Inference that accrual is
intended unless stated otherwise.
➢ Example: Bequeathing the residue of an estate to
brothers and sisters together.

❖ Joinder verbis tantum (joined through words alone): When

specific shares are allocated to beneficiaries in the same
clause. Accrual is not automatically assumed.

➢ Example: Bequeathing equal shares or specific ratios

of property to brothers or sisters.

Court Cases
❖ Winstanley v Barrow
➢ The case emphasizes that in joinder verbis tantum,
accrual is not intended unless the will reveals a
contrary intention.

❖ Lello v Dales
➢ The Appellate Division held that the probable intention
of the testatrix should be determined from the will's
scheme and surrounding circumstances. Despite
joinder verbis tantum, the court found that accrual
was intended for the nephews and nieces, as
Edward's share passed to them upon his
predeceasing the testator.
Customary law Overview
of succession ❖ The customary law of succession primarily follows intestate
rules.
❖ Testators living under customary law can still execute a will
that includes legal concepts such as the fideicommissum.

Fideicommissum and Male Primogeniture

❖ The principle of male primogeniture (the eldest male son
inheriting family property) was declared unconstitutional in
Bhe v Magistrate, Khayelitsha.
❖ Despite this, the fideicommissum can still be used to create
similar effects in a will.
❖ A testator can stipulate that the eldest male son in the male
lineage inherits the family property indefinitely, subject to
limitations for immovable property.

Chapter 11
Introduction Overview
❖ A testamentary trust (trust mortis causa) is created in the
context of testate succession, distinct from an inter vivos
trust formed during the founder’s lifetime.
❖ A testamentary trust is often used to provide for dependents
without granting them ownership/control over the property.
❖ Example of a typical testamentary trust clause:
➢ A trustee is appointed to hold the estate for the benefit
of beneficiaries (e.g., wife and children), with the wife
as the income beneficiary and children as capital
beneficiaries.

❖ Spouses may use a testamentary trust in a joint will to

manage the estate in case of simultaneous death or death
within a specified period.
➢ Example of a joint will trust:
➢ Property is bequeathed to trustees to be held for the
benefit of minor children if both spouses die
simultaneously or within 90 days.

❖ Testamentary trusts can also be created for beneficiaries with

limited capacity or for an impersonal object (e.g., combating
child abuse).
➢ Example of a trust for an impersonal object:
▪ Bequeathing funds to a trustee to combat child
abuse.

❖ The treuhand principle refers to the idea that property

ownership is transferred to another person for the benefit of a
third party or for a specific goal.
Brief historical Overview
perspective
Introduction of Trusts in South Africa
❖ The common law trust was introduced to South Africa after
British rule began in the Cape in 1806.
❖ The terms ‘trust’ and ‘trustee’ are of English origin, but English
trust law is not the foundation of South African trust law.
❖ South African courts have adapted the trust concept to the
principles of South African law and continue to evolve this
area of law.

Trust Property Control Act

❖ The Trust Property Control Act regulates the control of trust
property.
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❖ The purpose of the Act is to protect trust assets by ensuring

the administration of trusts is supervised by the Master of the
High Court.
❖ The Act does not fully codify trust law.
❖ Key aspects like the requirements for a valid trust and the
fiduciary nature of a trustee are still governed by common
law.
Defining a trust Overview
❖ Distinction between broad and narrow senses:
➢ Trust Property Control Act applies to trusts in the
narrow sense, specifically inter vivos and
testamentary trusts.
➢ Inter vivos trusts are not discussed in this chapter.
➢ Testamentary trusts can be divided into ownership
and bewind trusts.
❖ Trust Property Control Act – Section 1:
➢ Trust defined as an arrangement where ownership of
property is transferred to a trustee, who administers or
disposes of it for the benefit of designated
beneficiaries or for a specified purpose.
❖ Ownership Trust:
➢ Trustee becomes the owner of trust assets but must
act in a fiduciary capacity for the benefit of the
beneficiaries or an impersonal purpose.
➢ Example clause creating an ownership trust: Trustee
bequeaths estate to trustee with income beneficiaries
(e.g., wife) and capital beneficiaries (e.g., children).
➢ Beneficiaries’ rights depend on testator’s intention.
For example, income beneficiary may have a vested
right to income, and capital beneficiaries may have a
vested right to capital but can only enforce it at trust
dissolution.
❖ Bewind Trust:
➢ Beneficiaries are the owners of the trust assets, while
the trustee has control and disposal powers as per the
trust instrument.
➢ Example clause creating a bewind trust: Assets are
bequeathed to a child but administered by a trustee
for the child’s benefit.
❖ Discretionary Trust:
➢ Trustee has the power to select income and/or capital
beneficiaries from a specific group and determine the
share each beneficiary will receive.

❖ Non-Discretionary Trust:
➢ Beneficiaries and their respective benefits are
predetermined and fixed in the trust instrument.
Trustees have no discretion.
❖ Types of Trusts:
➢ Private Trusts: Typically family trusts set up for
dependants.
➢ Impersonal Purpose Trusts: Set up for public benefit,
named after their principal characteristics or object
(e.g., “The Kennedy Trust” or “The Lung Cancer Trust”).
Legal nature of Testamentary Trusts
the ❖ A testamentary trust (trust mortis causa) is established
testamentary through the will of the testator.
trust ❖ The will serves as the trust instrument, directing ownership to
the trustee or beneficiary.
❖ The trust comes into existence at the earliest upon the death
of the testator, but it may be postponed.

Legal Classification of Testamentary Trusts

❖ Traditionally viewed as a version of fideicommissum (a trust-
like arrangement).
❖ In Estate Kemp v MacDonald's Trustee (case 15), it was held
that a testamentary trust is a fideicommissum and a
testamentary trustee is a fiduciary.
❖ In Braun v Blann and Botha (case 16), this view was rejected,
and the trust was acknowledged as a separate legal concept.
Differences Between Trustee and Fiduciary (in Fideicommissum)
❖ Trustee:
➢ Control/ownership separated from enjoyment.
➢ Has an administrative interest unless also a
beneficiary.
➢ Occupies a quasi-public office.
➢ Execution is supervised by the court and Master.
➢ May continue indefinitely.
➢ Not beneficially entitled if the trust fails.
➢ Does not fail for lack of a trustee.
❖ Fiduciary (in fideicommissum):
o Owner is beneficially entitled to property.
o No official office.
o Fideicommissum’s observance is left to
fideicommissaries.
o Limited to two successive fideicommissaries.
o If the fideicommissum fails, the fiduciary takes the
property free of burden.
o Fails in absence of fiduciary.
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97

Legal Personality and Anomalies in Trust Law

❖ A trust does not have legal personality and does not bear its
own rights or responsibilities.
❖ Some anomalies exist where trusts are treated as legal
persons:
❖ Registration of immovable property under the
Administration of Estates Act.
❖ Trusts are taxed under the Income Tax Act.
❖ Sequestration of a trust as a debtor under the Insolvency
Act.
❖ In Kohlberg v Burnett (case 21), an inter vivos trust as a
beneficiary in a will was deemed valid.
❖ The Deeds Registries Act (Section 102) was amended to
include trusts in the definition of "person" for property
registration.

Ownership in Trusts
❖ The trustees (in the case of an ownership trust) or the
beneficiaries (in the case of a bewind trust) are the owners,
not the trust itself.
Requirements Requirements for a Valid Trust
(or essentialia) ❖ Intention to create a trust: The creator must have a serious
for the creation intention to transfer property to a trustee or beneficiaries for
of a valid trust administration according to the provisions of the trust.
❖ Binding obligation: The intention must be expressed in a way
that creates a binding obligation to establish the trust. Use of
vague or precatory words like “I wish” is insufficient to create
a binding trust, as seen in Braun v Blann and Botha.
❖ Testamentary formalities: The will creating the trust must
comply with the formalities required by section 2(1)(a) of the
Wills Act.
❖ Determined or determinable trust property: The property
must be clearly identified or identifiable. Trust property
includes movable or immovable assets and contingent
interests. If the description is ambiguous, it is resolved as any
other ambiguity in a will, as noted in Deedat v The Master.
❖ Clear trust object: The purpose of the trust must be clear. The
beneficiaries must be identifiable or capable of being
identified. In some cases, trustees can be given the power to
appoint beneficiaries, as acknowledged in Braun v Blann and
Botha. Charitable trusts may give trustees broader
discretion.
❖ Lawful trust object: The object of the trust must be lawful and
not illegal or contrary to public morals. Each case is assessed
based on its facts and prevailing social or legal norms,
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98

considering factors like the provisions of section 9 of the

Constitution.
Core elements Purpose of Testamentary Trusts
of a trust ❖ Ensures protection of trust assets and beneficiaries’ interests
❖ Protection against issues such as insolvency, trustee death or
divorce, or trustee misconduct

Core Elements of a Trust

❖ Fiduciary Position of the Trustee
❖ Breach of fiduciary duties results in personal liability for the
trustee
❖ Separate Estates
❖ Trustee holds separate personal and trust estates
❖ Trustee’s creditors and trust beneficiaries have claims
against different estates
❖ Principle of Real Subrogation
❖ Proceeds from the sale of trust assets or replacement assets
remain subject to the trust
❖ Unlawful replacement of assets dealt with through private
law remedies (doctrine of notice, enrichment principles)

Trusteeship as an Office
❖ Trust has a public element with the Master of the High Court
supervising trust administration
❖ Additional Protection
❖ Possibility of bewind trust
❖ Security provisions under section 6 of the Trust Property
Control Act
Trustees Appointment and Authorisation
❖ A trustee controls trust property for the benefit of the
beneficiaries or an impersonal purpose.
❖ The trustee has no beneficial interest in the trust property but
holds ownership in an administration capacity.
❖ In a private trust, the beneficiaries are entitled to the
beneficial interest (income or capital beneficiaries).
❖ A person with contractual capacity qualifies for appointment
as a trustee.
❖ A trustee is appointed according to the provisions of the will,
and the testator cannot delegate the power of appointment.
❖ If the trustee’s position becomes vacant or unfilled, the
Master will appoint a trustee after consulting interested
parties.
❖ A trustee’s appointment is not effective until they accept the
appointment, and the Master issues written letters of
authority.
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99

Duties of a Trustee
❖ A trustee’s duties are determined by the trust instrument,
common law, and the Trust Property Control Act.
❖ Trustees have a fiduciary relationship with the beneficiaries
and must always act in their best interests.
❖ A trustee must:
➢ Lodge the will, pay Master’s fees, and provide an
address notice.
➢ Familiarize themselves with trust instructions and
their duties.
➢ Gain control over the trust property immediately after
receiving letters of authority.
➢ Administer the trust according to the law and trust
provisions/
➢ Act with the care, diligence, and skill expected from a
prudent person managing another’s affairs.
➢ Deposit trust money in a separate account.
➢ Keep trust property separate from personal property
for protection.
➢ Account to the Master and provide documents related
to trust administration upon request.
➢ Provide necessary information to beneficiaries and
avoid conflicts of interest.
➢ Not profit from the administration of the trust without
authorization.
➢ Avoid buying trust property or lending money to the
trust without proper consent.
➢ Voidable transactions occur when a trustee violates
the no-profit principle. These transactions may be set
aside depending on circumstances.
➢ Trustees can delegate decision execution but must
personally exercise discretionary powers.
➢ Trustees must ensure debts due to the trust are
collected and make reasonable returns from income-
producing assets.
➢ Trustees must keep documents related to trust
administration for five years.
➢ Trust instruments may impose specific duties such as
investment, accounting, and beneficiary nomination.

Breach of Fiduciary Duty

❖ Breaching fiduciary duty or specific duties results in a breach
of trust, making the trustee personally liable for any loss if
delictual liability elements are met.

❖ Trustees are not vicariously liable for co-trustee actions, but

if multiple trustees breach trust, they are jointly and severally
liable.
❖ It is difficult for a co-trustee to escape liability by claiming no
involvement in trust administration.

Powers of a Trustee
❖ A trustee’s powers are mainly determined by the trust
instrument.
❖ Absence of detailed powers in the trust instrument may
require trustees to apply for a declaratory order for clarity.
❖ Trustees need wide powers for proper administration and
disposal of trust property.
❖ Without specific authorization in the trust deed, trustees may
not exercise powers, especially formal acts like selling or
transferring immovable property.
❖ In Liebenberg v MGK Bedryfsmaatskappy (Edms) Bpk, the
court held that unless provided in the trust deed, trustees
cannot expose trust assets to business risks without court
approval.
❖ A trustee’s powers to invest trust funds depend on the trust
instrument and specific circumstances. Investments must
be made with care, diligence, and skill, considering the
inherent risk of capital loss.
❖ In Administrators Estate Richards v Nichol, the court provided
guidelines for trustees’ investment strategy, emphasizing the
need to avoid speculative investments and balance stability
and growth.
❖ Trustees must act within their fiduciary position, always for
the benefit of beneficiaries and not for personal gain.

Termination of Trusteeship
❖ Trusteeship ends upon a trustee’s death, resignation, or when
the trust concludes.
❖ A trustee can be removed by the Master or court if trust assets
are endangered or in the best interest of the beneficiaries,
even without misconduct.
❖ In Tijmstra v Blunt-MacKenzie, the court removed all six
trustees due to various breaches, including:
➢ Removing funds without explanation.
➢ Failing to comply with trust deed requirements.
➢ Treating trust assets as personal property.
➢ Allowing co-trustee misconduct without objection.

Beneficiaries Overview
❖ Nomination and Qualifications
➢ A trust must have a specific or determinable
beneficiary, except when it has an impersonal object.
Beneficiaries can be named directly or described (e.g.,
spouse, eldest child), and the capacity to nominate
beneficiaries can be delegated to the trustee or an
income beneficiary. The trust instrument must specify
the class from which beneficiaries are chosen. A
distinction is typically made between income
beneficiaries, who benefit from trust income (e.g.,
rent, dividends), and capital beneficiaries, who
receive the trust property when it is dissolved.
Beneficiaries can be natural or juristic persons, do not
need to exist at the trust’s commencement, and may
not require contractual capacity.

❖ Rights of Beneficiaries
➢ The rights of a beneficiary are based on the fiduciary
relationship, the type of trust, and the trust
instrument’s provisions. Trustees have a fiduciary duty
toward beneficiaries, giving beneficiaries a personal
right to demand trustees fulfill their obligations. If a
trustee fails, beneficiaries can apply to the court for an
order to compel the trustee to act. The testator’s intent
regarding the vesting and enforcement of rights is
determined by the wording of the will.

❖ Income Beneficiary
➢ The rights of an income beneficiary depend on
whether the trust is discretionary or non-
discretionary.

❖ Non-discretionary Trusts
➢ Example: “I bequeath R100,000 and my shares to the
trustee, Mr. Proudfoot, in trust. The income beneficiary
is my wife, Zaza.”
➢ Zaza has a vested personal right from the start to claim
the income from the trustee without needing any
discretionary action.

❖ Discretionary Trusts
➢ Example: “I bequeath R100,000 and my shares to my
trustee, Mr. Maki, who has discretion to choose the
income beneficiaries from my grandchildren.”
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102

➢ A grandchild only acquires a vested right once the

trustee exercises discretion in their favor. If the
beneficiary dies after discretion but before payment,
their right passes to their estate.

❖ Capital Beneficiaries
➢ Rights of capital beneficiaries depend on whether the
trust is a bewind trust or an ownership trust.

❖ Bewind Trusts
➢ Example: “I bequeath my assets to my child, Zebulon,
to be held in trust and administered by Mr. Gordon.”
➢ Zebulon acquires a vested right to the trust property at
the trust’s creation and becomes the owner once the
trustee transfers or cedes the property.

❖ Ownership Trusts
➢ The trust instrument determines the nature of capital
beneficiaries’ rights.

❖ Non-discretionary Trusts Without Substitution

➢ Example: “I bequeath my assets to my trustee, Mr.
Kotze. The income beneficiary is my wife, Vinny, and
the capital beneficiary is my son, Bobo.”
➢ Bobo acquires a vested right at the testator’s death but
can only enforce it after the trust is dissolved.

❖ Non-discretionary Trusts With Substitution

➢ Example: “If a capital beneficiary dies before
dissolution, their descendants will substitute them.”
➢ The substitute only gains rights upon the trust’s
dissolution, and only if alive.

❖ Discretionary Trusts
➢ Example: “Trustee Du Preez can choose the capital
beneficiaries from my grandchildren.”
➢ The grandchildren do not have a vested right until the
trustee exercises discretion. Once discretion is
exercised, the beneficiary can claim the trust property
after the trust dissolves. Ownership is transferred
when the property is ceded to them.

Amendment of Overview
trust ❖ Common law
provisions ➢ The court generally does not have the authority to
amend trust provisions under common law, as it is in
the public interest to uphold the testator’s intentions.
▪ Exceptions to this rule exist.
❖ The court can amend or delete trust provisions if it is
imperative to do so, such as for legal requirements,
maintaining trust assets, or supporting minors.
❖ If following the trust provisions is impossible or impractical,
the court may approve alternative methods.

❖ Section 13 of the Trust Property Control Act

➢ The Trust Property Control Act grants the court broad
authority to amend trust provisions.
➢ A trustee or any interested party (e.g., a beneficiary)
can apply for a variation order.
➢ The court can amend or delete a trust provision if it
leads to consequences the founder did not foresee
and:
▪ Hampers the founder’s objectives;
▪ Prejudices the beneficiaries;
▪ Conflicts with public interests.
❖ The court may make any order it deems just, including
substituting trust property or terminating the trust.

❖ Validity of power to amend given to a trustee

➢ A testator may allow a trustee to amend administrative
provisions (e.g., frequency of trustee meetings).
➢ A trustee cannot amend provisions related to
beneficiaries, their benefits, or the powers of a trustee.
➢ Granting a trustee such power would be an invalid
delegation of testamentary power.
Termination of Overview
a trust ❖ Realisation of the trust objective
❖ Destruction of the trust assets (without fault of the trustee)
❖ Failure of the trust for some reason
❖ Acceleration of rights to the capital beneficiary (e.g., income
beneficiary renounces rights, and no other intention is stated
in the trust document)
❖ Court order (Section 13 of the Trust Property Control Act)
❖ Sequestration of the trust

Customary law Overview

of succession ❖ Mortis Causa Trust in Customary Law
➢ Unfamiliar concept in customary law
❖ Variations of the inter vivos trust have been applied to protect
customary property rights
➢ Example of Inter Vivos Trust: KwaZulu-Natal
Ingonyama Trust
▪ Legal landowner of approximately 2.8 million
hectares in KwaZulu-Natal
▪ Administered for the material benefit and
social well-being of community members

Customary Law and Succession

❖ Intestate customary law largely abolished by recent
developments in the customary law of succession
❖ Mortis causa trust can ensure family property remains in the
family
❖ Family head creates trust in their will, bequeathing family
property to the trust for the common good
❖ Family members (e.g., elders) may be appointed as trustees
❖ Normal trust principles apply in administration

Chapter 12
Introduction Terminology
❖ Collation: Process ensuring fair distribution of a deceased
estate by requiring descendants to account for benefits
received during the testator’s lifetime before inheriting.
➢ Ensures equal treatment among children or upholds
testator’s desired proportional benefits.
❖ Formal Definition:
➢ Defined by Corbett et al. as a duty for descendants to
account for gifts or advances received from the
ascendant during their lifetime.
➢ Terms: Collatio bonorum (Roman law), inbreng
(Roman-Dutch law), inbring (Afrikaans), and
hotchpotch (other jurisdictions).
❖ Rationale:
➢ Main purpose: To ensure equality among children.
➢ Secondary purpose: To maintain testator’s chosen
proportions, preventing substantial lifetime benefits
from disrupting inheritance balance.
❖ Application:
➢ Applies to both testate and intestate succession.
❖ Important Features:
➢ Heirs not participating in collation receive their shares
first.
➢ The actual value of the estate doesn’t increase when
accounting for lifetime benefits.
➢ Collation is reflected in the distribution account, not
the liquidation account.
➢ Total estate value remains the same, but shares are
adjusted among participating heirs.
Who Overview
participates in ❖ Collation in Practice:
collation? ➢ Collation occurs when a person entitled to benefit
insists on it.
➢ Executors may not always know about benefits given
by the testator during their lifetime.
➢ Executors must apply collation unless waived by
beneficiaries or exempted by the deceased.
❖ Who Must Collate:
➢ Only descendants who are heirs and would inherit
under intestacy must collate, unless the deceased
extended the obligation to other beneficiaries.
➢ Descendants who inherit as legatees are not required
to collate their legacies.

➢ Heirs who would qualify under intestacy can call for or

must submit to collation.
❖ Remission or Extension of Collation:
➢ The deceased can exempt heirs from collation or
extend it to non-descendant heirs during their lifetime.
➢ This can be stated in the will or inferred from the
deceased’s actions.
❖ Waiver of Collation:
➢ Beneficiaries entitled to benefit from collation may
waive it.
❖ Examples of Who Participates in Collation:
➢ Siblings and grandchildren (if their parents are alive)
do not participate in collation.
➢ Children who inherit as heirs must collate, while
legatees do not.
➢ Legatees facing abatement due to estate shortfalls
cannot require collation from other beneficiaries.
❖ Collation for Creditors:
➢ Creditors cannot demand collation, but insolvency
laws may allow reclaiming benefits given to a
beneficiary.
❖ Collation for Substituted Heirs:
➢ Grandchildren inheriting in place of a deceased parent
must collate benefits received by both themselves
and their parent.
❖ Surviving Spouses and Collation:
➢ Surviving spouses married out of community of
property do not participate in collation.
➢ Roman-Dutch law allowed collation for a surviving
spouse married in community of property when
dividing the joint estate, but this is debated in modern
South African law.
➢ The spouse’s share of the joint estate is increased by
half the collatable benefits, reducing the share for
other heirs.
❖ Counterpoint on Rights of Surviving Spouses:
➢ Some argue that surviving spouses should not benefit
from collation in modern law.
➢ Including them does not align with the principle of
collation and has not been enforced in South African
courts.
➢ If collation for the joint estate does not happen, only
half the benefit from the deceased parent should be
collated, with the other half addressed when the
surviving parent dies.
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therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
107

❖ Refusal to Collate:
➢ A refusal to collate is treated as a repudiation of
inheritance, and the beneficiary forfeits their
inheritance.
➢ If the collatable benefit excludes the heir from
inheriting, the estate is distributed as if that heir does
not exist, benefiting the remaining heirs.
What benefits Overview
are collatable? ❖ Collatable Benefits:
o Money or Property as Part of Inheritance: Considered
an advance on inheritance.
o Money or Property for Advancement in
Trade/Business/Profession: Given to establish or
improve the heir’s business.
o Marriage Settlements: Dowries or wedding gifts
(excluding wedding expenses).
o Substantial Gifts: Gifts of significant value compared
to the donor’s means that result in inequitable
treatment of other heirs.
o Debts Owed by Heir: Debts to the deceased, even if
extinguished by prescription or insolvency, if the
transaction diminished the estate’s value. Excluded
are promissory notes for work done or delictual
claims, as these do not affect the estate’s value.

❖ Non-Collatable Benefits (Unless Contrary Intention Shown):

o Normal Expenditures: Maintenance, education, or
travel costs, unless disproportionately large
compared to other heirs’ benefits.
o Remuneratory Donations: Gifts given in response to
services rendered, like a reward for caregiving, unless
disproportionately large.
o Simple and Unconditional Gifts: Gifts given out of
generosity (e.g., Christmas or birthday gifts), unless
they result in substantial inequality among heirs.
Valuation of Valuation of Assets for Collation
collatable ❖ Assets fluctuate in value over time, e.g., a house or shares
benefits may increase in value, while a car may depreciate.
❖ The question arises as to when an asset should be valued for
collation purposes.
❖ De Vos v Van der Merwe
❖ Principles regarding asset valuation were recognized in De
Vos v Van der Merwe:
➢ If the deceased specified how or when the asset
should be valued, it must be valued accordingly.
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108

➢ If no specification is made, the asset is valued at the

time of the gift.
➢ If a beneficiary disagrees with the asset’s value, they
can choose to surrender the asset to the estate.
➢ Surrendering the asset increases the estate’s value by
the asset’s current value.
➢ Surrender of an asset could trigger transfer duty (for
immovable property) or donations tax.
➢ If the drop in asset value is due to the beneficiary’s
neglect, they cannot avoid the loss by surrendering the
asset.
❖ A deceased’s wishes regarding valuation may not need to be
in the will, but could be established through other evidence.
❖ Collation does not require the beneficiary to pay money into
the estate; instead, the value is notionally added to the
estate’s value. The exception is when the beneficiary
surrenders the gift.
❖ The court in De Vos v Van der Merwe suggests that if the
beneficiary no longer possesses the asset, its generic
equivalent may be surrendered instead.
❖ The amount to be collated can be reduced by necessary or
useful expenses incurred by the beneficiary, exceeding the
benefits of the asset.
❖ Some Roman-Dutch authorities suggest that expenses
increasing the estate’s value may reduce the value at which
the property is collated.
Customary law Collation in Common Law and Customary Law
of succession ❖ Collation in Common Law:
➢ Collation is unique to common law succession and
does not exist in customary law.

❖ Impact of Constitutional Court and Legislation:

➢ In Bhe v Magistrate, Khayelitsha, the Constitutional
Court extended the Intestate Succession Act
(common law system) to apply to customary law.
➢ This may unintentionally introduce the common law
system of collation into customary law.

❖ Customary Law and Family Head’s Authority:

➢ Customary law allows a family head to dispose of
assets during their lifetime, influencing the ranking of
succession by determining the status of houses.
➢ If assets are distributed unevenly among
descendants, it may resemble a lifetime gift that could

be considered in succession, similar to collation

under common law.

❖ KwaZulu-Natal Customary Law:

➢ Section 71 of the KwaZulu Act and the Natal Code of
Zulu Law permit a family head to divide the family
home into sections (e.g., great house, left-hand
house, right-hand house, junior houses).
▪ This division may be used to allocate family
property, creating lifetime gifts to certain
houses or descendants.

❖ Gifts to Descendants:
➢ Family heads may donate property to a specific house
or child, such as assisting a son with lobolo for his first
wife.
➢ These gifts do not obligate other descendants to have
them accounted for when distributing assets upon the
family head’s death.

❖ Introduction of Collation in Customary Law:

➢ Since the Intestate Succession Act now applies to all
intestate estates, it could be argued that collation
should also apply to customary law estates.
➢ Dispositions made by a family head during their
lifetime might be viewed as collatable benefits in
customary law succession.
➢ It is uncertain whether courts will recognize the
introduction of collation in this context.

Chapter 13
Introduction Overview
❖ A will should be written in clear and unambiguous language.
❖ Technical terms or legalistic vocabulary should be avoided to
improve readability.
❖ Writing in comprehensible language helps reduce
interpretational issues.
❖ Despite careful drafting, interpretational problems may still
arise.
❖ The testator, who could clarify ambiguities, is often
unavailable after death.
❖ The law of succession has specific rules for interpreting wills.
Golden rule of Golden Rule for Interpretation of Wills
interpretation: ❖ Stated in Robertson v Robertson’s Executors:
‘to ascertain ➢ The starting point is to ascertain the testator’s wishes
the wishes of from the language used.
the ➢ Courts are bound to give effect to the testator’s wishes
testator from unless prevented by law.
the language
used’ Interpretation of Wills
❖ All rules are aimed at determining and giving effect to the
testator’s intention.
❖ The words used in the will are the primary indication of
intention.
❖ Courts are reluctant to deviate from the ordinary and literal
meaning of words unless:
❖ Evidence shows the testator did not intend those words to
have their ordinary meaning.
❖ The testator intended other words to be used to express their
intention.
Rectification of Wills
❖ If unintended words are inserted in the will, rectification is
needed through the High Court.
❖ The High Court, not the Master of the High Court, has the
power to rectify the will.
❖ Role of the Master of the High Court:
➢ The Master has an administrative, not adjudicative,
function.
➢ The Master interprets a will literally, based on the
actual words used.
➢ For deviation from the literal meaning, proceedings
must be instituted in the High Court.
❖ Lower courts do not have jurisdiction over the validity and
interpretation of wills.

Statutory rules The Wills Act – Statutory Rules of Interpretation

of ❖ Section 2B: Ex-Spouses
interpretation ➢ Applies when a marriage is dissolved by divorce or
annulled by a court.
➢ Testator’s will is executed as if the former spouse
predeceased the testator if death occurs within three
months of marriage dissolution.
➢ The former spouse is entitled to inheritance if the will
clearly shows the testator intended them to benefit,
even after divorce.
➢ If death occurs more than three months after
dissolution or the will was executed post-divorce, the
former spouse inherits as originally stated in the will.
➢ Counterpoint: Suggestion to revoke all provisions for a
former spouse automatically upon divorce or
annulment.
❖ Section 2D(1): ‘Child’ or ‘Children’
➢ Defines the interpretation of “child” in a will.
❖ Section 2D(1)(a): An adopted child is considered the child of
the adoptive parents, not the biological parents, except in
specific circumstances (e.g., when the biological parent is
also the adoptive parent).
➢ Parental rights are terminated upon adoption unless
the biological parent is married to the adoptive parent
at the time of adoption.
❖ Section 2D(1)(b): Children born out of wedlock are treated
equally, with no discrimination in inheritance unless explicitly
excluded in the will.
❖ Section 2D(1)(c): Nasciturus fiction—beneficiaries
conceived at the time of devolution but born alive later are
considered included in the will unless the testator specifies
otherwise.

Interpretative Rules in Relation to Common Law

❖ These statutory rules override conflicting common law rules
when interpreting a will.
❖ Testators can deviate from these rules if explicitly stated in
the will.

Reflection on Parental Rights

❖ Some biological parents may need to adopt their child to
obtain parental rights under the Children’s Act.
❖ In cases of remarriage, an adoptive parent’s rights do not
terminate the biological parent’s rights unless specified.

Common law Common Law Rules of Interpretation in Wills

rules of ❖ Ordinary and Plain Meaning
interpretation ❖ There are no rigid rules in will interpretation, only principles
that may evolve.
❖ The main goal is to give effect to the testator’s intentions,
even if the language used is awkward or unreasonable.
❖ Unambiguous words must be followed, even if the bequests
seem unfair or inconvenient.
❖ Technical terms (e.g., usufruct, fideicommissum) are given
their legal meaning, while ordinary words retain their
everyday meaning unless indicated otherwise by the
testator’s intention.

The Context of the Will

❖ Context refers to both the document itself and surrounding
circumstances (armchair evidence).
❖ Courts may use context to interpret ambiguous terms, like
“vest,” which can be seen as ownership or possession based
on context.
❖ It’s presumed that repeated words carry the same meaning
unless context suggests otherwise.
❖ The testator’s intent is scrutinized more closely in cases
where a layperson drafts the will, compared to a legal expert.

Iusdem Generis Rule

❖ Applied when a series of similar terms are used, suggesting
each word should align with the others in meaning.
❖ Example: “Farm property” and “rural property” are synonyms
in the will, meaning both sons inherit all the deceased’s
farms.

Grammar, Punctuation, and Paragraphing

❖ Grammar, punctuation, and paragraph structure play a key
role in interpreting the meaning of will clauses.
❖ Clauses that are erased or revoked are not considered in
interpretation.

Interpretation at Time of Death

❖ Words are interpreted as they were understood when the will
was made, though the time of death may affect the
interpretation of certain terms (e.g., shares in Ex parte Weir’s
Executors).

Construction of the Will as a Whole

❖ The will must be read as a whole; clauses are interpreted in
relation to one another.
❖ Dominant clauses take precedence over secondary ones,
and if a conflict arises, they may cancel each other out.
❖ Smith v Smith Case
➢ Court looked at the will as a whole to interpret an
apparent contradiction between clauses, concluding
that the surviving spouse was to have a life interest,
not unfettered ownership.
Armchair and Extrinsic Evidence
❖ Armchair evidence places the court in the position of the
testator to understand the will’s intent.
❖ Extrinsic evidence is used only when the will’s language is
ambiguous or unclear.
❖ Richter v Bloemfontein Town Council Case
➢ Established that armchair evidence helps interpret
legal documents by understanding the situation at the
time of drafting.
❖ Lello v Dales Case
➢ Armchair evidence allows the court to interpret a will
in light of surrounding circumstances.
❖ Bell v Swan Case
➢ Courts cannot use armchair evidence to alter the
testator’s expressed intentions.

Implied Provisions
❖ Courts may read words into a will to make it more coherent,
but this is done cautiously and only if the implication is
necessary.
❖ Estate Dempers v Estate Dempers Case
➢ Court implied the testators’ children were their
ultimate heirs, as per the will’s general intent.
❖ Aubrey-Smith v Hofmeyr Case
➢ Court added words to clarify the husband’s position as
the heir, making the will consistent.

Legal Presumptions
❖ Legal presumptions assist in interpreting ambiguous wills,
though they are used cautiously when the will’s language is
clear.

Writing or Typing Prevails Over Standard Form Wills

❖ Typed or handwritten additions override printed standard
form text in a will.
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114

Presumption Against Intestacy

❖ A will generally governs the entire estate, and intestacy is
presumed only if a part of the estate is explicitly unaddressed.

Ambulatory Nature of a Will

❖ A will can be altered or revoked before the testator’s death,
and takes effect at the moment of death unless stated
otherwise in the will.
❖ Webb v Davis
➢ Case Overview:
▪ The Supreme Court of Appeal was tasked with
interpreting a will.
➢ Facts:
▪ Testator executed his will in 1976.
▪ He suffered a severe stroke in 1978 and died in
1990.
▪ He was survived by sons Gary and Rodney, with
Rodney passing away in 1993.
▪ Rodney’s widow was the executrix and sole
beneficiary of his estate.
▪ The testator owned a trading station in
Transkei, which Rodney helped run.\In 1976,
the testator gave Rodney a power of attorney to
run the business.
➢ Will’s Clauses:
▪ Clause 2: Bequeathed the trading station to
Rodney, conditional on Rodney paying Gary
R70,000 in installments (R10,000 per year).
▪ Clause 3: Required Rodney to register a
mortgage bond over the trading station and
specified that if Rodney didn’t accept the
inheritance or fulfill the conditions, the
bequest would “fall away” and both sons would
inherit the estate equally.
➢ Dispute:
▪ Rodney accepted the inheritance but never
registered the mortgage bond due to
restrictions in Transkeian law.
▪ The first three installments of the R70,000 were
paid, but Rodney died before the full amount
was settled.
▪ Rodney’s widow offered to pay the balance, but
Gary rejected the offer.
➢ The legal issue:

whether the bequest of the trading station

▪
vested in Rodney’s estate and was
transmissible to his heirs.
➢ Court’s Findings:
▪ Gary’s counsel argued that Rodney’s failure to
meet the conditions meant the bequest could
not vest in his estate.
▪ The Court examined the will’s general scheme
and circumstances at the time of its creation.
▪ The Court found that the testator intended for
Rodney to acquire a vested right to the
property, even before the full payment of
R70,000.
▪ The Court used the presumption in favor of
immediate vesting, as well as the presumption
that a bequest subject to conditions was a
modus, not a suspensive condition.
▪ The Court concluded that the bequest was not
contingent on the payment and that Rodney’s
interest was transmissible to his heirs.
➢ Conclusion:
▪ The bequest to Rodney was not contingent on
fulfilling the conditions.
▪ The inheritance was transmissible to Rodney’s
heirs (his wife), as the vested interest was a
right to acquire ownership, not time-limited.
▪ The testator’s intention, deduced from the
will’s general scheme and presumptions,
guided the interpretation.
Variation of General Rule for Variance of Wills
wills ❖ Courts generally do not vary a will that is capable of being
carried out.
❖ Beneficiaries who disagree with how the property is to be
realised or invested have made applications, often arguing for
more profitable distributions, but the courts maintain that
clear stipulations must be followed, even at the cost of profit.

❖ Jewish Colonial Trust Ltd v Estate Nathan

❖ Testator created a testamentary trust with annuities for 50
years, after which the residue was to be used to create The
Solomon Nathan Family Fund.
❖ The Jewish Colonial Trust sought to expedite the payment of
the residue, but the court denied the request, stating that it
could not modify or supplement the will unless legally
conferred powers allowed for it.
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116

❖ In a 1967 attempt, the court again denied variation, stating

that the will cannot be changed based on changed
circumstances unless the testator envisioned such changes
or it became impractical to execute the will.
❖ The case reflects the general approach of South African
courts: wills cannot be varied unless specific circumstances
warrant it.

Circumstances Where Variation is Allowed

❖ Courts may allow variations if:
➢ It is practically impossible or unreasonable to fulfil the
testator’s intentions.
➢ Strict enforcement would frustrate the testator’s
bequests.
➢ The mechanisms in the will cannot realise the
testator’s intentions or would cause severe loss.
➢ Changed circumstances require a departure from the
will.
➢ The testator made dispositions based on mistaken
assumptions about their assets or liabilities.

❖ Ex parte Estate Marks

❖ Testator prohibited the sale of immovable property until his
children’s deaths and directed investments in approved
stocks.
❖ The court allowed the proceeds from expropriated property to
be invested in property-owning companies, as it aligned with
the testator’s general intent.
❖ The sale of properties to meet estate liabilities, however,
could not be invested differently from the stocks specified in
the will.

❖ Ex parte Sidelsky
❖ Testator provided £75 for his daughter’s upkeep in 1944. The
court increased the amount to R1,500 with inflation-linked
annual increases to better meet the daughter’s needs.
❖ Courts often vary wills based on unforeseen circumstances.

Limitations on Court Discretion

❖ Courts cannot vary a will to rectify an illegality.
❖ If a stipulation in the will is illegal, it will be voided without
affecting the beneficiary’s inheritance rights.

Charitable Bequests
❖ Courts are more willing to vary charitable bequests to ensure
they meet the testator’s general objectives, as it is in the
public interest to ensure the best possible results for
charitable causes.
Rectification of Distinction Between Rectification and Variation of a Will
wills ❖ A testator can amend or vary their will before death by
complying with formalities.
❖ Courts rarely vary or amend a will but may do so in limited
cases authorized by legislation (e.g., removal of
fideicommissa under the Immovable Property (Removal or
Modification of Restrictions) Act).
❖ Rectification, by contrast, involves correcting clerical errors
or adding/deleting words inserted by mistake, duress, or
undue influence.
❖ Rectification can only be done by a court in one of three ways:
➢ Correcting clerical mistakes or typing error
➢ Deleting words
➢ Inserting words

Requirements for Rectification

❖ A court must be satisfied that the will does not reflect the true
intentions of the testator.
❖ Evidence must be presented to demonstrate the testator’s
true intentions.

Examples of Rectification
❖ Typing errors (e.g., a bequest of R100 when the testator
intended R1,000).
❖ Incorrect property addresses or the wrong name (e.g., Johan
instead of John).
❖ Rectification depends on the reliability of evidence, and
courts are cautious about interfering with the provisions of a
will.

❖ Aubrey-Smith v Hofmeyr
❖ The court was reluctant to rectify wills by inserting words, as
it would equate to remaking the testator’s will and would not
comply with the Wills Act formalities.
❖ The court distinguished between excising words that were
inadvertently added and inserting words based on extrinsic
evidence suggesting an omission.

❖ Botha v The Master

❖ The court questioned whether distinguishing between
rectification by deletion and insertion was logically
justifiable.
❖ It held that rectification, whether by deletion or insertion, is
necessary when the will fails to reflect the testator’s true
intention.
❖ The court found it inconsistent to allow rectification by
deletion but not by insertion.
Customary law Wills Under Customary Law and Common Law
of succession ❖ The same rules of interpretation apply to a testator’s will
under customary law as under common law.
❖ However, the legal and practical situations may be more
complex due to differences in meaning of certain words.

Examples of Differences in Terminology

❖ In common law, “descendant” refers to direct lineal
descendants of the deceased.
❖ In customary law, “descendant” can include individuals
accepted as children by the deceased under customary law
and women involved in substitute or woman-to-woman
marriages for procreation purposes.
❖ The meaning of “spouse” can also differ between common
law and customary law.

Challenges in Interpretation
❖ It is difficult to predict how courts will handle conflicts
between common and customary law regarding succession.
❖ To avoid ambiguity, it is advisable for testators and legal
advisors to define key terms clearly in the will.
❖ Including a list of defined terms in the will can ensure the
testator’s intentions are clear and unambiguous.

Chapter 14
Introduction Succession in South Africa
❖ Succession typically occurs through a will or according to the
law of intestate succession.
❖ In some cases, testators attempt to regulate their estate
through a bilateral juridical act inter vivos (contract).
❖ Such contracts are known as pacta successoria and are
generally invalid.

Terminology
❖ Pactum Successorium: A contract in which parties attempt to
regulate the devolution of all or part of one or both parties’
assets.
❖ Pactum Successorium Example
➢ Example: A promise to bequeath an asset (e.g., an
antique clock) upon death.
➢ This promise would usually be a binding contract if
accepted, but it is invalid in the context of succession
because it interferes with the testator’s freedom of
testation.

❖ Exceptions to the Rule

➢ Antenuptial Contract: A succession clause in an
antenuptial contract is valid.
➢ Donatio Mortis Causa: A donation made in
anticipation of death, executed in compliance with the
formalities of a will, is valid.
Origin of the Prohibition of Pacta Successoria
prohibition of ❖ Originates in common law.
the pactum ❖ Roman law recognized two methods of succession:
successorium ➢ Successio ex testamento (succession by will).
➢ Successio ab intestato (succession by intestacy).
❖ Succession through pactum successorium was generally not
permitted or unknown, with few exceptions.

Roman Law and Succession

❖ The right of private ownership and the ability to make a will
were well-established in early Roman law.
❖ Dying intestate was considered disgraceful in Roman society.
❖ It was a principle that a will could be revoked until the
testator’s death.
❖ Juridical acts that restricted the freedom of testation inter
vivos were viewed with suspicion and considered contra
bonos mores (against good morals).

What is the Definition and Concept

pactum ❖ A pactum successorium is an agreement made during a
successorium testator’s lifetime to give someone a share of their estate after
used for? their death.
❖ It is a bilateral agreement that can operate under succession
law consequences inter vivos (during the testator’s life).
❖ Examples of Pacta Successoria
➢ Anton and Ben agree to be each other’s heirs.
➢ Jacobus agrees to leave the residue of his estate to
Maria.
➢ Axel agrees to leave half his estate to his stepson Carl.

Identifying the Pactum Successorium

❖ Tests Used by Courts
❖ Absence of Counterperformance: Schauer v Schauer—an
agreement is invalid unless there is proof of
counterperformance.
❖ Revocability Test: In Costain and Partners v Godden, it was
found that revocable agreements are not necessarily pacta
successoria. A proper application of this test is found in
Varkevisser v Varkevisser and Ex Parte Calderwood.
❖ Restriction of Freedom of Testation: Freedom of testation is a
key principle, as shown in Borman en De Vos v
Potgietersrusse Tabakkorporasie. Agreements that restrict
testators’ freedom of testation are invalid.
❖ Vesting Test: Rights vested in a beneficiary before death do
not constitute a pactum successorium (Borman en De Vos v
Potgietersrusse Tabakkorporasie).
❖ Intention Test: McAlpine v McAlpine—focus on the parties’
intentions rather than vested rights. This approach applies to
commercial agreements like insurance policies, which do not
interfere with the testator’s freedom of testation.

Valid Forms of Pactum Successorium

❖ Donatio Mortis Causa
❖ A gift made in contemplation of death, revocable at any time
and must comply with testamentary formalities (Meyer v
Rudolph’s Estate).
❖ A donatio mortis causa is not a pactum successorium due to
its revocability.

Pactum Successorium in an Antenuptial Contract

❖ General Rules: A pactum successorium in an antenuptial
contract does not require testamentary formalities.
❖ Examples:
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and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
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121

➢ Ex parte Executors Estate Everard, a pactum

successorium in an antenuptial agreement could not
be revoked unilaterally by a will.
➢ Ex parte Basillie et Uxor, a husband’s life policy for his
wife and children in an antenuptial contract could not
be revoked by a later will if the beneficiaries accepted
the benefit.
Customary law Overview
of succession ❖ The pactum successorium is a concept in common law, not
familiar to customary law.
❖ In customary law, family heads (usually male) often express
their wishes regarding property distribution before death.
❖ A family head can make these declarations while in good
health, but with death in mind, similar to donatio mortis
causa in common law.
❖ Donatio mortis causa requires compliance with
testamentary formalities, unlike the informal deathbed
wishes in customary law.

The Deathbed Wishes of a Family Head

❖ The family head’s final disposition must align with customary
law, such as the principle of male primogeniture.
❖ Heirs entitled to inheritance cannot be disinherited, and the
status of the houses cannot be altered.
❖ Dispositions should be communicated to several individuals,
typically the family council and those who might be
disadvantaged by the decision.
❖ While deathbed wishes are generally respected, disgruntled
heirs can protest or approach the court.
❖ Bhe v Magistrate, Khayelitsha
➢ the principle of male primogeniture was declared
unconstitutional, indicating potential changes to
customary law in the future.

Chapter 15
Introduction The Reform of Customary Law of Succession Act (RCLSA)
❖ Came into effect on 20 September 2010.
❖ Aims to harmonize common and customary law of intestate
succession.
❖ Modifies the devolution of estates for individuals living under
customary law.
❖ Provides for differences based on cultural affiliations.

❖ Key Provisions
➢ If a person dies intestate under customary law, their
estate follows the Intestate Succession Act with
certain modifications.
➢ Modifications include issues like polygyny, a broader
circle of relations, and recognition of various marriage
forms.

❖ Preamble of the Act

➢ Modifies customary law of succession to align with
intestate succession.
➢ Clarifies issues related to succession and property
law for people under customary law.
➢ Amends certain laws to reflect these changes.

❖ Importance
➢ Understanding how to apply the Act is crucial when
dealing with estates of individuals who lived under a
system of customary law.
Content of the RCLSA and Intestate Succession Act
RCLSA ❖ The RCLSA confirms that the Intestate Succession Act
applies to all intestate estates in South Africa, regardless of
race or lifestyle.
❖ Section 2 of the RCLSA makes special provisions for
situations common in customary law.

❖ Definitions
➢ Section 1 of the RCLSA defines terms such as
‘customary law,’ ‘descendant,’ ‘house,’ ‘Intestate
Succession Act,’ ‘spouse,’ ‘traditional leader,’ and ‘will.’
➢ ‘Descendant’ in the Intestate Succession Act refers to
blood relations, but in the RCLSA, it includes
individuals accepted as children under customary
law.

➢ Section 2(2)(b) and (c) outlines how certain women

(those in substitute marriages or woman-to-woman
marriages) are treated as descendants.

❖ Interpretation
➢ Section 3 introduces special rules for interpreting the
Intestate Succession Act:
➢ The term ‘spouse’ is broadened to include all spouses
in customary marriages.
➢ Special provisions apply if the fixed amount for
distribution is insufficient for all spouses.

❖ Freedom of Testation
➢ Section 4 grants women under customary law the right
to dispose of house property through a will,
introducing freedom of testation into customary law.

❖ Disputes
➢ Section 5 grants the Master of the High Court
jurisdiction over disputes related to customary law
succession and family property.
➢ Disputes may be referred to a magistrate for an inquiry,
with decisions considering the best interests of family
members and equality of spouses.

❖ Traditional Leaders
➢ Section 6 excludes property held by a traditional
leader in their official capacity from their estate,
ensuring it remains unaffected by the Intestate
Succession Act.

❖ Property Rights
➢ Section 7 protects spouses in customary marriages
who were discarded upon a man entering a civil
marriage before 2 December 1988.
➢ It ensures that the proprietary rights of both civil and
customary spouses and their children are recognized
in the deceased’s estate.
Order of Overview
succession in ❖ Customary succession rules are mostly uncodified.
customary law ❖ The legal rules indicating when the customary law of
estates succession applies were contained in section 23 of the Black
Administration Act and the regulations under that Act.

❖ These pieces of legislation were declared unconstitutional

and invalidated with retrospective effect to 27 April 1994 in
Bhe v Magistrate, Khayelitsha.
❖ The new position is regulated under the Intestate Succession
Act in conjunction with the RCLSA.
❖ If a deceased person who lived under customary law dies
intestate, their estate devolves according to these Acts. If a
valid will exists, the provisions of the will must be followed,
including a stipulation for customary law succession or male
primogeniture.

Reinstating the Rule of Male Primogeniture

❖ There is no legal prohibition preventing a testator from
executing a will that specifies the estate must devolve under
customary law succession.
❖ The question remains whether this would circumvent the
findings of Bhe v Magistrate, Khayelitsha.
❖ The testator’s freedom of testation may allow disinheriting
children and spouses, but it raises constitutional concerns
when reinstating the male primogeniture rule.

General Principles
❖ The customary law of succession reflects the polygynous
marriage system and broader family context.
❖ It concerns inheritance of property and succession to the
status of the deceased.
❖ The successor inherits both the property and the
responsibilities of the deceased.
❖ Succession follows male primogeniture, where the firstborn
son inherits from the deceased.
❖ Succession is a duty, with a successor obliged to care for the
family and perform rituals.
❖ Males of the patrilineage (father’s line) are typically preferred
in succession over other family members.
❖ The successor may be removed from the line of succession
for valid reasons.
❖ Succession varies among groups, e.g., in KwaZulu-Natal, a
successor is only liable for debts to the extent of inherited
assets.
❖ The order of succession depends on whether the household
is monogamous or polygynous.

Succession in Monogamous Households

❖ Example: Thabo Monchusi is married to Sophie Sekgotho,
and they have three children: Petrus (eldest son), Jonna
(second son), and Tembi (daughter).
❖ The eldest son, Petrus, succeeds Thabo. If Petrus
predeceases him, Jonna or his male descendants will inherit.
❖ If no male descendants exist, the inheritance moves to
Thabo’s father, followed by brothers or other male relatives.

Succession in Polygynous Households

❖ A polygynous marriage includes multiple wives, with each
wife constituting a separate household.
❖ In the Nguni group, the first wife is the left-hand wife, and the
second is the right-hand wife.
❖ The eldest son of the great house (left-hand wife) succeeds to
the family property and status.
❖ If the eldest son is predeceased, his eldest son inherits.
❖ If no son is present in a house, the property moves to the
eldest son of another house.

Practical Applications of the Customary Succession Rules

❖ Monogamous Family with Descendants: The eldest son or his
descendants inherit the estate. If they are deceased, the
second son or his descendants inherit, and so on.
❖ Monogamous Family without Descendants: The inheritance
moves to the father, then to the brothers of the deceased, and
then to their sons.
❖ Polygynous Family: If the descendants of the great wife are
predeceased, the property moves to the descendants of the
next wife, according to the rank of the house. If all male
descendants are predeceased, the property moves to the
deceased’s father or, failing that, to other male relatives
according to seniority.

Chapter 16
Introduction Process Overview
❖ Involves the liquidation and division of a deceased estate
under the supervision of the Master of the High Court.
❖ Governed by formal rules and the laws of testate and
intestate succession.
❖ The estate is distributed according to either the will, the
Intestate Succession Act, or a combination of both.

Key Legislation
❖ Administration of Estates Act: Primary legislation governing
the administration of estates.
❖ Deeds Registries Act: Regulates the transfer of immovable
property from the deceased estate.
❖ Estate Duty Act: Governs the levy and payment of estate duty
on estates exceeding a certain net value.
❖ Immovable Property Act: Addresses restrictions on
immovable property, e.g., fideicommissum.
❖ Intestate Succession Act: Provides rules for the estate of a
person who dies intestate.
❖ Long-term Insurance Act: Deals with long-term insurance
policies in relation to deceased estates.
❖ Maintenance of Surviving Spouses Act: Prescribes
maintenance claims for surviving spouses.
❖ Matrimonial Property Act: Deals with matrimonial property
law.
❖ Recognition of Customary Marriages Act: Addresses issues
related to polygynous marriages.
❖ Reform of Customary Law of Succession Act: Regulates the
devolution of estates under customary law.
❖ Subdivision of Agricultural Land Act: Prevents the subdivision
of agricultural land.
❖ Trust Property Control Act: Regulates the control of trust
property in estates.
❖ Wills Act: Sets out the formalities for the creation and
interpretation of a valid will.

Chief Master Directives

❖ Directives from the Chief Master provide additional
guidelines for estate administration.
❖ Example: Chief Master’s Directive 2 of 2015 covers the
recognition of unregistered customary marriages and same-
sex life partnerships.

Changes in Estate Administration (Post-2000)

❖ Before December 2000, estate administration rules differed
based on race, particularly for black persons dying intestate.
❖ Since 2000, rules have become more uniform across racial
lines, but amending legislation is generally not retroactive.

Court Cases and Issues

❖ The discussion refers to changes and reforms in the
administration of estates of black persons who died intestate
before 6 December 2000.
Legal reform of Overview
the
administration ❖ Three Stages of Legal Reform:
of intestate 1. Estates of black persons who died before 6
estates of December 2000.
black persons 2. Estates of black persons who died between 6
December 2000 and 15 October 2004.
3. Estates of black persons who died after 15 October
2004.

Black Persons Who Died Before 6 December 2000

❖ Jurisdiction:
➢ Magistrates had jurisdiction over intestate estates of
black persons.
➢ The Master of the High Court had jurisdiction over
other estates.
❖ Legislative Provisions:
➢ Section 23(7)(a) of the Black Administration Act
excluded the Master from the administration of black
persons’ intestate estates
➢ Black Estates Regulations gave magistrates the power
to administer intestate estates.

Estate Classification:
❖ Common Law Estates: Managed by a representative
appointed by the magistrate.
❖ Customary Law Estates Without Immovable Property:
Managed according to customary law without the need for an
executor.
❖ Customary Law Estates With Immovable Property:
Administered by a representative appointed by the
magistrate, with the estate devolving according to customary
law.

❖ Moseneke v The Master

➢ Allowed the family to choose between administration
by a magistrate or the Master, with a two-year window.

Black Persons Who Died Between 6 December 2000 and 15

October 2004
❖ Moseneke v The Master:
➢ Constitutional Court decision regarding black
persons’ intestate estates.
➢ Regulation 3(1) of the Black Estates Regulations and
section 23(7)(a) were deemed unconstitutional.
➢ Black persons given the option to choose the
administering body (Master or magistrate).
➢ Amendments to the Administration of Estates Act
introduced:
▪ Service points at magistrates’ offices were
created.
▪ Jurisdiction of the Master was extended to all
estates except those governed by customary
law.
▪ Section 23(7)(a) of the Black Administration Act
was deleted in 2002.

Black Persons Who Died After 15 October 2004

❖ Bhe v Magistrate, Khayelitsha:
➢ Constitutional Court declared section 23 of the Black
Administration Act and the Black Estates Regulations
unconstitutional.
➢ All estates, regardless of race, must be administered
by the Master of the High Court.
➢ Significant Consequences:
▪ Section 23 invalidated retrospectively from 27
April 1994.
▪ Magistrates no longer had authority over black
intestate estates based on race.
▪ All estates, regardless of race, must be
administered by the Master.
▪ Estates previously administered by
magistrates must now follow the Intestate
Succession Act.

Customary Law of Succession:

❖ The judgment did not abolish customary law but allowed
estates to be distributed under customary law through a will,
ensuring protection for vulnerable groups.
Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass
and Prosper tutors for their own studying benefit. These notes are not sold for profit and
therefore, they may occasionally be minor mistakes. In such an event, please contact the
tutor to effect the correction.
129

❖ Legislative Changes:
➢ Repeal of section 23 of the Black Administration Act.
➢ Introduction of the RCLSA and changes to the
customary law of succession.

❖ Service Points:
➢ Service points established at magistrates’ offices for
estate administration.
➢ Estates with values up to R250,000 can be
administered by service points under certain
conditions.
Uniform rules Overview
for the ❖ The process starts when the deceased dies and must follow
administration statutory rules, under the supervision of the Master of the
of deceased High Court.
estates
Basic Concepts of Administration of Estates
❖ Deceased Estate: Comprises the deceased’s assets and
liabilities at the time of death.
❖ Residue or Residuary Estate: The remaining part after funeral
expenses, debts, taxes, and legacies are paid.
❖ Solvent or Insolvent Estate: A solvent estate has assets
exceeding liabilities, while an insolvent estate has the
opposite.
❖ Estate for Estate Tax: Estate duty includes the deceased’s
property and certain deemed property like life insurance
proceeds, pension funds, and donations.

Executor
❖ Defined in the Administration of Estates Act as the person
authorized to act under letters of executorship.
❖ Testamentary Executor: Nominated in a valid will.
❖ Dative Executor: Appointed by the Master if no will is present.
❖ Section 18(3) Appointment: If the estate’s gross value is
under R250,000, an executor may not be needed.
❖ Executors must administer the estate with due care and
diligence, and may be exempted from providing security
under certain conditions.
❖ Executor’s Fees: Usually 3.5% of the estate’s gross value, plus
6% of income generated after death, with a minimum fee of
R350.

The Master
❖ The Master supervises the administration of estates, with
jurisdiction over estates within specific regions.
❖ Master’s Fees: Based on the estate’s gross value and range
from R42 to R7,000 depending on the value.

Administration Process
❖ Phase 1: Starts with death; involves reporting the death to the
Master and submitting documents like the death notice,
inventory, and acceptance of executorship.
❖ Phase 2: Begins when the letter of executorship is issued. The
executor’s duties include controlling estate assets,
advertising for creditors, determining estate solvency, and
preparing a liquidation and distribution account.
❖ Phase 3: Begins once the liquidation and distribution account
is approved.

Methods of Liquidation
❖ Award in Specie: Transfer of estate assets to beneficiaries as
they were left, without selling them.
❖ Partial Sale of Assets: Necessary when estate liabilities need
to be paid or the will instructs asset sales.

Phase 3: Finalization of Estate Process

❖ Begins once the Master approves the final liquidation and
distribution account.
❖ Executor must submit proof of:
➢ Advertisements
➢ Transfer of properties
➢ Payment of the Master’s fee
➢ Payment to creditors and legacies
➢ Delivery of legacies and inheritances
➢ Final bank statements with a zero balance

❖ After completing these tasks, the executor is entitled to

discharge and obtain a filing slip from the Master.

Executors’ Duties Checklist (Wiechers and Vorster)

❖ Report the estate to the Master (death notice, death
certificate, inventory, acceptance of executorship form).
❖ Ascertain asset values and liabilities.
❖ Open an estate banking account.
❖ Determine liquidation method and administration procedure.
❖ Pay liabilities ensuring estate solvency.

❖ If insolvent, follow Section 34 of the Administration of Estates

Act.
❖ Prepare and submit liquidation and distribution account.
❖ Obtain permission for advertisement, pay all creditors,
legacies, and estate duties.
❖ Obtain Master’s release (filing slip).

Liquidation and Distribution Account (Section 35)

❖ Heading: Must include:
➢ Account number, full name, ID number, marital status,
spouse details, and Master’s reference number.

❖ Money Column: Shows subtotals and grand totals.

❖ Liquidation Account:
➢ Lists assets (immovable, movable, claims) and
liabilities (administration costs, creditors, estate
duty).
➢ Total assets reflect the gross estate value.
➢ Proceeds of sold property must be shown.
➢ Administration costs include advertisements, fees,
and funeral expenses.
➢ Balance (assets minus liabilities) shows the amount
to distribute.
➢ A divestment note for unrealized assets is required.

❖ Recapitulation Statement: Reflects the estate’s cash

position, surplus, or deficit.

❖ Distribution Account:
➢ Shows how the balance will be distributed among
beneficiaries.
➢ Divides estate per the will (testate) or according to
intestate succession laws.
➢ Redistribution agreements, if any, must be attached.

❖ Income and Expenditure Account: Reflects income and

expenditure after death.

❖ Fiduciary Assets Account: For any assets held in

fideicommissum, including income and expenditures related
to them.

❖ Estate Duty Addendum:

➢ Includes calculations for estate duty per the Estate
Duty Act.
➢ Estate duty can complicate the liquidation process if
the estate wasn’t planned properly.

❖ Certificate: Executor certifies the account is true and

complete.

❖ Example of Liquidation and Distribution Account

➢ Heading: Details of deceased, marital status,
reference number.
➢ Assets:
▪ Immovable property transferred to surviving
spouse.
▪ Movable property and bank accounts
transferred as per the will.
▪ Shares and life policy proceeds listed as
assets.

❖ Liabilities: Funeral expenses, advertisement costs,

executor’s fees, and debts.
❖ Recapitulation: Cash balance after liabilities.
❖ Distribution Account: Shows total amount distributed to the
surviving spouse.
❖ Income and Expenditure: No income post-death.
❖ Fiduciary Account: None in this case.
❖ Estate Duty: Calculated based on liquidation values, with
deductions for the surviving spouse’s bequest.

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