Succession Lecture Notes (Term 1)

3.3. The Delegation of T estamentary Powers :

 The general rule is that the testator will indicate who his
beneficiaries will be in his will.
o I.e. he will say who will inherit what.
 Sometimes testators will instruct others to decide who the
beneficiaries will be; i.e. where
the testator delegates testamentary to another person.
 The General rule is that delegation of testamentary power
in NOT allowed, except in the
following circumstances:
a) Where a charitable trust is created by the will .
o The testator says that his estate is to be left in a trust and
that the beneficiaries will be
people who meet certain criteria.
b) If you leave the power to appoint beneficiaries to Trustees,
and these Trustees have a duty
to appoint the beneficiaries as well as having a beneficial
interest in that trust [i.e. the trustee
must derive some sort of benefit from the trust].
o The question arises when only one of those requirements are
met; e.g. if a trustee has a
duty to appoint beneficiaries from a certain class of people
who meet specific criteria,
but the trustee does not have a beneficial interest in the trust.
o Braun v Blann and Botha 1984 (2) SA 550 (A)
 A testator left his estate in a trust and the
trustees had a duty to appoint
beneficiaries from the testator’s descendants. The
trustees, however, were not
deriving any benefits from the trust itself.
 This went to court to determine whether this delegation of
testamentary power
was valid. The court said that the trustees had to have a
special / specific power
where they were required to choose beneficiaries from a
specific class.
 They could not just choose beneficiaries from wherever.
 The court held that where such a duty exists, the delegation
of testamentary power
is valid, irrespective of whether the trustees derived a benefit.
o Ferreira v Smit 1981 (3) SA 1264 (A)
 This case outlined exactly what the requirements
were for valid testamentary
delegation
a) The intention to exercise the power of appointment
b) It must be in accordance with the provisions of the will.
 What if there is a failure to exercise the power
of appointment validly, e.g.
appointing trustees?
 The effect depends on the actual provisions of the will: the
testator may have
foreseen that this may happen and made substitutions in his
will; if so, then
these substitutions will be put into effect.
o E.g. A provision in a will may say that X will appoint
beneficiaries and
if X fails to do so then the testator’s daughter will inherit.
 If there is no such provision in the will, then you will look
at whether the
testator identified a specific class of beneficiaries; and if so,
then that class of
beneficiaries will inherit.
o E.g. the court will look at the class of beneficiaries given
and will then
distribute the inheritance amongst members of that class.
 If there is a general power of appointment (i.e. where no
specific class of
beneficiaries is identified) but the trustee has a beneficial
interest in the trust,
then the trustee’s intestate heirs will inherit.
o E.g. A fiduciary / usufruct: X leaves compensation to his
wife and the
wife is to enjoy an income from the trust and then appoint
beneficiaries;
if she fails to do so, then the wife’s intestate heirs will inherit

wife’s intestate
if she fails
inherit to doheirs willthe
so, then