FACULTY OF LAW

NELSON R. MANDELA SCHOOL OF LAW

YEAR: 2015
LAW OF SUCCESSION INTRODUCTORY NOTES

LECTURER: DR. T.V. WARIKANDWA

1. Law of succession in South Africa

The South African law of succession prescribes the rules which determine the
devolution of a person’s estate after his death and all matters incidental thereto.
It identifies the beneficiaries who are entitled to succeed to the deceased’s
estate, and the extent of the benefits they are to receive, and determines the
different rights and duties that persons (for example, beneficiaries and
creditors) may have in a deceased's estate. It forms part of private law.

The manner in which assets are distributed depends on whether the deceased
has left a valid will or other valid document containing testamentary provisions,
such as an antenuptial contract. If the deceased has not left a valid will or valid
document containing testamentary provisions, the deceased dies intestate;
similarly, if the deceased leaves a valid will which does not dispose of all
property, there is an intestacy as to the portion not disposed of. In the event of
intestacy, the assets are distributed in a definite order of preference among the
[1 ]
heirs, as stipulated by the Intestate Succession Act. Until recently, the
Act
(and its common-law precursor) existed side-by-side with a statutorily-
regulated customary-law regime of intestate succession, applied on a racial
basis, but this was brought to an end when the Constitutional Court, in Bhe v
Magistrate, Khayelitsha, made the Intestate Succession Act applicable to all.

1
Where the deceased dies leaving a valid will, the rules of testate succession
[2 ]
apply. These are derived from common law and the Wills Act. Testate
succession is governed by the general premise that the assets of the deceased
are distributed in accordance with the provisions of the will. If specified
property is left to a person, the disposition is termed a “legacy.” Legacies are
distributed first; any residue in the estate is given to the person, if any, who is
appointed as heir. If the will appoints more than one heir, the residue is divided
among them.

2. Dual character
The law of succession comprises two branches, namely the common law of
succession and the customary law of succession. These enjoy equal status and
are subject to the Consti tuti on of South A frica and other legislation.
The common law of succession is divided into the testate law of succession
and the intestate law of succession, whereas the customary law of
succession only operates intestate.

2. 1 Conflict of laws

There are various rules for determining whether the common-law rules or the
customary-law rules are applicable:

 The common law of succession applies to testate succession except if a

testator, living under customary law prescribed otherwise in his or her
will or if a court decides otherwise.
[3 ]
 The Inte state Succession Act applies to all intestate estates
irrespective
of the cultural affiliations of the deceased.

Succession may take place in three ways:

a. in accordance with a valid will (testamentary succession);
b. through the operation of intestate succession (without a valid will); and
 c. in terms of a succession agreement (pactum successorium) contained in a
duly registered antenuptial contract or a donatio mortis causa.

3. Scope of succession

The capacity to have rights and duties is called legal subjectivity, which is
terminated by death. The consequences of the termination of legal subjectivity
are as follows:

 The subject is known as the deceased.

 If the deceased has a valid will, he or she is known as a testator or
testatrix respectively.
 The deceased’s estate—all of the deceased’s assets and liabilities—is
gathered together.
 The deceased’s debts and administration costs are paid.
 The remainder of the assets then pass to persons qualified to succeed him.

When a person dies, everything remaining of his assets (once debts, obligations
and administrative costs have been reclaimed) passes by inheritance to those
qualified to succeed him.

The law of succession is the totality of the legal rules which control the transfer
of those assets of the deceased which are subject to distribution among
beneficiaries, or those assets of another over which the deceased had the power
of disposal.

If there is a valid will which sets out the wishes of the testator, the estate is
[4]
administered in terms of the law of testate succession. A will is a unilateral
declaration regarding how the estate is to be apportioned. A person may make
also bequests in terms of an ante-nuptial contract. Both natural and juristic
persons may be beneficiaries in terms of a will.
If there is no will, or if the will is invalid, the estate devolves in terms of the law
[5]
of intestate succession.

4. Ground rules for succession

There are a few requirements (with exceptions) that must be fulfilled before the
rules of succession can come into operation:

 The testator must have died.

 There must be a transfer of rights or duties with regard to the estate or the
status of the deceased, depending on the nature of the succession rules
(common law or customary law).
 At the time of dies cedit, the beneficiary has to be alive or have been
conceived.
 The beneficiary must be competent to inherit. (According to the Dutch
rule "de bloedige hand neemt geen erf" a person convicted of either the
murder or culpable homicide of the testator is not eligible to inherit.)

4.1 Person must have died

In both the common and customary law of succession (in the case of property),
a prerequisite for succession is that the owner of the estate must have died. In
customary law, succession to status positions takes place only on the death of a
family head, while the deaths of another family member does not give rise to
succession to his or her status. The application of the rule is illustrated in
Estate
[6]
Orpen v Estate Atkinson.

Although the requirement of the death of the testator seems so obvious, it is not
always a simple matter. There are various examples of situations where the
application of the rule has been problematic or deviated from.
4.1.1. Presumption of death

The first exception to the rule that a person must be dead before succession can
occur, is where a court pronounces a presumption of death and makes an order
for the division of the estate. Those who allege that a person is dead have to
prove it. Where the body is present and can be identified, death can easily be
proved. However, where a person has disappeared and a body has not been
found, death is difficult to prove. Only when a court makes a presumption of
death order can the disappeared person’s estate be administered. Because it is
possible that the deceased might still be alive, this case constitutes an exception
to the rule that he or she must be dead before succession can occur. For this
reason, it is also customary for a court to order that the estate of the person
presumed to be dead should be distributed amongst his heirs subject to the
provision of security that the estate can be returned to him should he reappear.
Factors which a court may take into consideration in making such an order
include the length of time that the person has been missing, the age, health and
position in society of the missing person, as well as the circumstances of the
disappearance. The principles applicable to judicial presumption of death have
[7]
been reviewed in detail by the higher courts.

Beneficiaries must be alive at the time of the testator’s death, unless the testator
makes provision for the benefit of persons born later. Death is proved by
reporting the death to the Master and obtaining a death certificate signed by a
medical practitioner. This is important: Without proof of death, the estate
cannot be administered, and one’s affairs cannot remain indefinitely in limbo.

In such circumstances, a person may approach the High Court for an order,
granted on a balance of probabilities, presuming the death of another person.
The effect of the order is to create a rebuttable presumption that the specified
person is dead. The court may later reverse the order if the presumption is
rebutted; it may also order that all persons who received a benefit from the
devolved estate return the assets in terms of the law of unjustified enrichment.

If a person cannot get a presumption order, he may apply for an order for
administration of the estate. In this case, all beneficiaries must furnish security
for the assets received.

4.2. Estate massing

A second exception to the rule that a person must be dead can be found in the
case of estate massing. When estates are massed, the entire estates or parts of
the estates of various testators are consolidated into a single economic unit for
the purpose of testamentary disposal. The effect of estate massing is that the
surviving testator’s estate dissolves according to the will of the first-dying
whilst he or she is still alive.

Either party to a mutual will may, while both are alive, revoke his or her share
of the mutual will with or without communication to the other party. But after
the death of one party the survivor may not revoke his or her share of the
mutual will where both the following further conditions or circumstances occur:

 the mutual will effects a “massing;” and

 the survivor has accepted some benefit under the will.

The term “massing” will first be explained, then the survivor’s election will be
discussed, and thereafter effect of the survivor repudiating or accepting benefits
respectively will be considered.

6
Massing is a disposition by the testators in a mutual will of their joined
property or of a portion of it in favour of the survivor, giving him or her a
limited interest

7
in the joined property, and providing that on his or her death such property is to
go to some other person or persons. The limited interest conferred on the
survivor is, as a rule, either a usufructuary or a fiduciary interest. For example,
the testators leave “all property belonging to us to our children, subject to a
usufruct in favour of the survivor;” in this case the survivor acquires a
usufructuary interest in the massed property. Or, again, the testators may leave
“our joint estate to the survivor, and after the death of the survivor to our
children;” in this case the survivor acquires a fiduciary interest.

It will be seen that the effect of massing, if carried out, is to give the survivor
one benefit and to deprive him or her of another. The survivor acquires a
beneficial interest in the property of the first-dying which otherwise (in the
absence of any will) the survivor would not have obtained, but the survivor no
longer has the full ownership of his or her own share of the property which
otherwise he or she would have retained. The survivor, however, is not bound to
allow the mutual will to be carried into effect. If the survivor accepts the
benefit, he or she must also accept the loss of an interest in his or her own
property; the survivor cannot accept the benefit without its accompanying
liability. It follows that the survivor has a choice or election whether to abide by
the terms of the mutual will or to repudiate them.

4.2.1. Exercise of election by survivor

Whether the survivor has elected to abide by the terms of the mutual will or to
repudiate them is a question of fact. The election is generally effected by t
he survivor in his or her capacity as executor (for the survivor is usually
appointed executor testamentary) in framing the liquidation and distribution
account. If the survivor takes the interest in the share of the first-dying in terms
of the mutual will the survivor is deemed to have accepted the benefits and to
have adiated.
7
Vice versa, the survivor is held to repudiate the terms of the will if he or she
does not take the interest in the share of the first-dying but assigns the estate of
the deceased to the other beneficiaries.

If the survivor elects to abide by the will, or “adiates,” the survivor can be
relieved of the consequences of such action if the survivor acted under a
reasonable and excusable ignorance of his or her legal rights, but not if the
survivor erroneously thought that adiation would be of greater benefit than it
turned out to be. If, after adiation, a new will is discovered which adds to or
alters the provisions of the earlier will, the survivor has a further opportunity to
adiate or repudiate.

4.2.2. Effect of repudiation by survivor

If the survivor elects to take no benefit under the mutual will and thereby
repudiates the will he or she is not bound by its terms. It follows that the
survivor reverts to the legal position which he enjoyed before the death of the
testator. The survivor accordingly may revoke his or her share of the mutual
will, retain personal property and be free of the will’s terms. The consequence
is that the mutual will remains in force only in so far as it is the will of the
first- dying and it operates only upon the latter’s share of the property.

4.2.3. Effect of adiation by survivor

If the survivor accepts the benefits under the mutual will he or she becomes
bound by its terms. The survivor is consequently under an obligation (of a
contractual or quasi-contractual nature) to allow the jointly disposed of
property to devolve in terms of the joint will. In other words the mutual will
now comes fully into operation and the survivor cannot revoke his or her
share of it. The
mutual will operates in effect as the will of the first-dying party and the
survivor is a beneficiary under that will.

The rights of the ultimate beneficiaries in the massed estate have undergone
considerable change. Under the common law their rights in the first-dying
testator’s share of the massed property were real rights, being conferred by will,
while their right in the survivor’s share were personal rights only since they
were of a semi-contractual nature and since the will of one person cannot confer
a real right in the property of another person. It followed that the survivor
retained the dominium in his or her share of the property even after adiation,
and could thus validly alienate or mortgage such share. If the survivor went
insolvent after adiation and before transfer of the property to’ the beneficiaries
the latter would rank merely as concurrent creditors in the insolvent estate. To
remedy this state of affairs a vitally important change was made in 1913 by the
Administration of Estates Act in respect of mutual wills of spouses married in
community of property. Where such a will effected a massing and the survivor
adiated, the Act in effect placed the two halves of the joint estate upon exactly
the same footing by giving the beneficiaries the same rights in respect of the
survivor’s half as they possessed in the half of the first-dying spouse. Given the
state of the common law at the time this meant that the beneficiaries acquired
real rights in the entire estate. Under the modern system of administering
deceased estates, however, the beneficiaries under a will acquire only personal
rights against the executor before transfer to them of the bequeathed property.

It follows in the case of a massed estate that the ultimate beneficiaries acquire
personal rights only in the first-dying’s share of the estate and thus, by virtue of
the legislation, in the half of the survivor too, on his or her adiation. This
remains the position under the Administration of Estates Act of 1965, which re
- enacted the earlier provision in somewhat wider terms, as follows: “If any
two
or more persons have by their mutual will massed the whole or any specific
portion of their joint estate and disposed of the massed estate or of any portion
thereof after the death of the first-dying, conferring upon the survivor or
survivors any limited interest in respect of any property in the massed estate,
then upon the death after the commencement of this Act [October 2, 1967] of
the first-dying, adiation by the survivor or survivors shall have the effect of
conferring upon the persons in whose favour such disposition was made, such
rights in respect of any property forming part of the share of the survivor or
survivors of the massed estate as they would by law have possessed under the
will if that property had belonged to the first-dying.”

The 1965 Act, unlike the 1913 Act, is not, it is submitted, confined to spouses
married in community of property despite the use of the words “joint estate” in
the quoted extract. The intention of the legislature seems clear.

It must be noted that if the mutual will masses not the whole, but a portion
merely of their estates, the will is irrevocable by the survivor in respect of the
massed portion only.

4.2.4 Sequence of death

Another aspect worth mentioning, occurs when a number of people are killed in
the same disaster (commorientes) and it is difficult to determine who died first.
It might be important to be able to determine who died first in order to choose
the beneficiaries, especially if the victims are family members. It could happen
that the estate of the victims is devolved as if they died simultaneously whilst in
actual fact one or more of them died at a later time.

Consider the following example: Corbin and Armand die in a plane crash in
which there are no survivors. In terms of Corbin’s will, Cameron is his only

10
heir. Corbin’s estate is only worth R100. In terms of Armand’s will, Corbin is
her only heir, and Armand was wealthy. If Corbin died after Armand and could
first inherit from him, then Cameron, who inherits from Corbin, is in a
favourable position. Cameron would want to prove that Armand died before
Corbin. If Corbin and Armand died simultaneously and on impact, Corbin
cannot inherit anything from Armand, as he was not alive at dies cedit: that is,
upon Armand’s death.

The cardinal rule is that an heir, in order to inherit, must survive or outlive the
deceased. When two persons die at the same time, it is important to know who
died first, so as to determine if they may inherit.

In Roman-Dutch law, certain presumptions existed when members of the same

family died in circumstances where it was difficult to determine who died first.
It was always presumed that the wife died first. In England, there was a
presumption that, when two persons died at the same time, the older of the two
had died first.

The South African courts, however, did not apply these presumptions. The
general rule is that, where there is no evidence of who survived whom, it is to
[8]
be presumed that they died simultaneously. In Greyling v Greyling, a
husband and wife were killed in a car accident. According to the evidence, the
husband probably lived longer than his wife. In their joint will, the
spouses had a provision to the effect that, if they died simultaneously, their
estate had to devolve in a certain way. The Court held that the words
"gelyktydig te sterwe
kom" (to die simultaneously) meant the death of the testators as the result of a
single incident, irrespective of the fact that there was a difference in the exact
time at which they died.
5. Transfer of rights and/or duties with regard to assets and/or the status
of the deceased

This ground rule is linked to the issue of dies cedit and dies venit. The fact that
there has to be a transfer of rights and/or duties with regard to the bequest
and/or status of the deceased can also be regarded as a ground rule of the law of
succession. Somebody must take the place of the deceased testator with regard
to ownership of his assets, or in the case of customary law, with regard to
status. In the case of the common law of succession, there is a transfer of rights
(and sometimes also responsibilities) which belonged to the deceased.

In the case of the customary law of succession, the situation is more

complicated. It depends on the type of property and the status of the deceased.
In general, it can be said that succession to status positions takes place only
after the death of a family head. Distinction is made between general
succession (succession to the general status of the deceased) and special
succession (succession to the position of the head of the various houses of the
deceased). Although there have been exceptions to the rule, succession to
status is mainly limited to male. Succession follows the rule of male
primogeniture, which means that a family head is succeeded by his firstborn
son of a particular house.

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

The transfer of rights (and occasionally also responsibilities) is a prerequisite

for succession. There must be somebody on whom the rights (or
responsibilities) can devolve. Where a beneficiary has already died (is
predeceased) when the bequeathed benefit vests, there can be no succession
except if the deceased made provision in his or her will or antenuptial contract
for the predecease of the beneficiary or in circumstances where ex lege
substitution applies.
An exceptional situation is where a beneficiary has been conceived but not yet
born when the bequeathed benefit vests. Since an unborn child is incapable of
bearing rights and cannot inherit, the vesting of the bequest is held over until
the child is born alive. This situation is referred to as the nasciturus fiction (a
common law concept) in terms of which a child who survives birth is regarded
as having obtained rights from the moment of conception, provided that
conception took place before the death of the testator.

Customary law does not have a similar fiction, but some communities have
customs that are meant to produce heirs for a husband after his death.
Ukungena, for example, is a custom which expects a widow to marry one of her
husband’s brothers after his death. If a man dies childless, the custom of
ukungena allows for the continuation of his family line. Another custom,
ukuvusa, allows for the natural heir of the deceased (for example, his brother) to
take the deceased’s property and then to take a wife who will be regarded as the
deceased’s wife and whose children will be known as the deceased’s children. It
is, however, difficult to determine to what extent these customs are still
followed by indigenous communities. In addition, the nasciturus fiction has
been codified in the testate law of succession by section 2D(l)(c) of the Wills
Act, which provides that any benefit allocated to the children of a deceased
shall vest in such children as are alive at the time of the devolution of the
benefit, or as have already been conceived at the time of the devolution of the
benefit and who are later born alive.

5.2 Beneficiary must be competent to inherit

The mere fact that somebody has been named as heir or legatee in a will, or in
terms of the rules of intestate succession, does not necessarily mean that the
person has the right to the relevant benefit. Although most persons are

13
competent to inherit, there are some who do not have the competence to take up
a benefit in terms of a specific will. There are also certain persons who are not
competent to benefit intestate from a specific deceased.

In customary law, the competence of the beneficiary is often linked to the rule
of male primogeniture. The customary rule of male primogeniture was declared
unconstitutional by the Constitutional Court in Bhe v Magistrate,
Khayelitsha. This case brought about fundamental changes to the
customary law of succession and the administration of estates.

6. Deceased estate
The aggregate of assets and liabilities of the deceased is termed the deceased
estate. The deceased estate is not a juristic person. Consequently, the only legal
person in connection with the estate is the executor in his representative
capacity. The estate ‘vests’ originally in the Master of the High Court, and
subsequently in one or more executors, appointed by the Master, who bear the
responsibility of administering the estate:

 first, by gathering in all the assets;

 next, by liquidating the deceased’s liabilities; and
 lastly, by distributing the balance of the estate assets to the beneficiaries
entitled thereto.

Due to this administration process, the estate does not initially vest in the heir.
[9 ]
The executor becomes the legal ‘owner’ of the assets. The executor,
however, acquires the bare dominium only, and not the beneficial use and
enjoyment of the assets. Similarly, the debts of the deceased are binding on the
executor in his representative capacity only.
It follows that the executor alone can sue and be sued in respect of estate
matters. Legal proceedings are brought or defended by the executor acting in a
representative capacity, for the executor is the legal representative of the
deceased. A legatee, for example, has no locus standi to claim from a third
person assets which the former alleges to form part of the estate; still less does
the heir acquire the ownership of the assets upon the death of the testator: The
heir has merely a vested claim (personal right) against the executor, enforceable
after confirmation of the liquidation and distribution account.

6.1 Executor

The estates of all persons, whether dying testate or intestate, are administered
and wound up by executors under letters of executorship granted to them by the
Master of the High Court. If the deceased’s will appoints specified persons as
executors, the Master grants the letters to such persons; they are termed
executors testamentary.

Where no executors are appointed by will, and after consulting the heirs, the
legatees and the creditors of the deceased, the Master appoints one or more
persons as executors; they are termed executors dative.

Executors testamentary who are conferred the power of assumption by a will

may appoint co-executors; the latter are termed executors assumed.

6.2 Winding up

An estate is wound up when it has fallen into possession and is cleared of

liabilities, and so left free for enjoyment by the beneficiaries. The exectuor’s
first duty is to gather in all the estate’s assets in the possession of other persons,
unless the Master of the High Court authorises such other persons to retain the
property. Excluded from ingathering are life assurance benefits, retirement
assets, and assets held in trust.

Debts due to the deceased include not merely pecuniary debts, but also any
other obligations which can be specifically performed, such as an obligation to
transfer land to the deceased. The executor may enforce such an obligation
even if the deceased has died insolvent.

It is not the duty of an executor to realise the estate assets—that is, to turn them
into money—unless the will directs him to do so, or unless it is necessary to
raise money in order either to pay estate debts or to divide the assets properly
among the beneficiaries. If empowered by the will, the executor may carry on
the business of the testator, but without the authority of the court he may not
pledge the credit of the estate in order to maintain it as a going concern.

6.3 Liquidation

The next duty of the executor is to settle the liabilities against the deceased’s
estate, after satisfying himself that the estate is solvent, and after framing and
lodging a liquidation and distribution account, to which there has been no valid
objection, with the Master of the High Court within six months from the date of
death.

An executor is liable in respect of any contractual obligation of the deceased

which could have been enforced against him had he been alive, unless the
obligation is of a personal nature or was clearly not intended by the parties to be
transmissible. It follows that the executor must not only pay the pecuniary debts
of the deceased, but must also perform obligations incurred by the deceased to
transfer or to grant real rights in his property (like a sale of his land, or a
contract to grant a servitude over his land, or a lease, or a mortgage).
The debts due by the estate include the deceased’s obligation to maintain his
spouse and minor children (and, in appropriate circumstances, even major
children) if the benefits coming to them from the deceased’s estate are
insufficient to maintain them. Such a claim is preferent to the claims of heirs
and, if the inheritances are insufficient, to the claims of legatees, but it cannot
compete with the claims of normal creditors.

The executor is liable for the debts only to the extent of the assets in the estate.
If the estate is solvent, the executor must pay the creditors as soon as funds
sufficient for that purpose have been raised out of the estate, subject to there
being no valid objection to his liquidation and distribution account. If the
executor does not have sufficient free cash in hand, he must sell assets
belonging to the estate in order to raise the necessary amount, but he may not
sell assets bequeathed as legacies unless there are no other assets to meet the
debts.

If the estate is insolvent, the executor must inform the creditors of this fact in
writing; thereafter, provided he is instructed by a majority in number and value
of all the creditors to surrender the estate under the Insolvency Act, he must
realise and distribute the estate in terms of the procedure laid down for
insolvent estates in the Administration of Estates Act.

6.4 Distribution

After lodging a liquidation and distribution account to which there has been no
objection, or any objections made have been overruled by the court, the
executor must distribute the balance of the assets to the beneficiaries. Where
there is no will, the assets are distributed among the heirs according to the rules
of intestate succession; where there is a will, the assets are distributed according
to the provisions of that will. In the latter case, the legacies are paid or
17
distributed first, the balance going to the heirs; the consequence is that the heirs
are in effect residuary legatees.

The distribution of the assets to the beneficiaries is

effected:

 by transferring immovable property to them;

 by delivering movable property to them; or
 by paying money to them,

as the case may be. If a usufruct or other limited interest in immovable property
has been bequeathed to any person, along with a direction that, upon the expiry
of the interest, the property shall devolve upon some uncertain person, the
executor must, instead of transferring the property, ensure that the terms of the
will are endorsed against the title deeds. An endorsement is intended to
safeguard the contingent rights of the uncertain persons; it does not vest the
ownership or any other real right in them.

7. Beneficiaries’ title

Under the Roman-Dutch system of universal succession, the beneficiaries’ right

to their portions of the deceased’s assets was a real right, since the right was
said to vest in the beneficiaries at the death of the deceased, without any formal
delivery or transfer; so it was said that a real right is conferred on the
beneficiaries, be they legatees or heirs.

However, after adoption of the English system of estate administration in the

19th century, the beneficiaries’ right to inherit is no longer absolute, nor is it
assured. If the deceased’s estate, after confirmation of the liquidation and
distribution account, is found to be insolvent, none of the beneficiaries will

18
obtain any assets at all. In the case of a legacy, the legatee will obtain the
property bequeathed to him only:

19
 1. if the property belonged to the testator (for the will of one person cannot
confer a real right in favour of another person over property belonging to
a third person); and
2. if the deceased’s assets not left as legacies are sufficient to pay his debts.

In any event, an heir may not vindicate from a third person property which the
heir alleges forms part of the deceased estate; only the executor has that power.

It follows from these considerations that an heir or legatee does not, upon the
death of the testator, acquire the ownership of the assets; he merely has a vested
claim (personal right) against the executor for payment, delivery or transfer of
the property comprising the inheritance. This claim is enforceable only when
the liquidation and distribution account has been confirmed. The heir or
legatee, in fact, becomes owner of movable property only on its delivery,
and of immovable property on its registration.

The modern position, therefore, is that a beneficiary has merely a personal

right, ius in personam ad rem acquirendam, against the executor; he does not
acquire ownership by virtue of a will. The heir obtains ownership, or a lesser
real right (such as a usufruct), only on delivery or transfer in pursuance of a
testamentary disposition or intestate succession. Consequently, succession is
merely a causa habilis, or appropriate cause, for transfer of ownership.

8. Overpayment by executor

If an executor pays the heirs or legatees more than they were entitled to, there
is unjustified enrichtment, so the executor may recover the excess from them
by means of the condictio indebiti. Similarly, an executor may reclaim
from concurrent creditors an overpayment made to them if the estate is
subsequently found to be insolvent.
9. Estate duty

By virtue of the Estate Duty Act, estate duty is payable on all property of a
deceased person, and on all property which is deemed to be his property at the
date of death.

10. Testamentary trustees

The executor’s duty is finished when the estate has been liquidated and
distributed. Once the estate is distributed, the executor is entitled to be
discharged as executor by the Master. Frequently, however, a will directs that
the estate property or some portion of it must not be distributed immediately,
but must be administered by some person, who is termed the testamentary
“trustee” or “administrator.” It then becomes the duty of the executor to cause
the terms of the will, insofar as they relate to the administration of the
immovable property, to be endorsed against the title deeds of such immovable
property.

The will usually, but not always, appoints the same persons as executors and as
trustees. The functions of an executor and of a trustee are, however, quite
separate and distinct. Further, the source of their authority is different. While
the Master has the power of appointment of executors, a trustee’s authority is
derived from the will or some other document executed by the testator.

Where the executors are also appointed trustees, they first have to perform their
duties as executors, and then as trustees. In the latter capacity, they have to
administer and deal with the balance of the assets as directed by the will. The
trustees must keep the assets properly invested, due regard being had to the
production of fruits and the safety of the corpus of the estate.
A trustee must furnish security to the satisfaction of the Master for the due and
faithful performance of his duties, unless he has been exempted from doing so
by a court order or by the Master or in terms of the will. In the latter case, the
Master may override the terms of the will and insist on security being
furnished, if the Master is of the opinion that there are sound reasons for doing
so.

11. Collation

Collation is an obligation imposed by law on all descendants who wish to share

as heirs in the estate of their ancestor, either by will or on intestacy. The
obligation is to account to the estate for any gifts or advances received by them
from their ancestor, or debts incurred to him, during his lifetime.

Collation is effected by adding to the inheritance the amount due by each heir.
The new total is then divided among all the heirs. An heir cannot, as long as he
refuses to collate, enforce legal remedies to claim his share of the inheritance.

The basis of collation is that a parent is presumed to have intended that there
should be equality in the distribution of his estate among his children.
Collation, however, may be dispensed with by the will of a testator, or waived
by those entitled to the benefit thereof.

11.1 What property must be collated

Among the classes of property which must be collated is property which has
been given to a descendant

 as a portion of his inheritance;

 to start him in trade or business;
 as a dowry or marriage gift; or
  as a gift of a substantial nature resulting in inequitable treatment so far as
the other children are concerned.

A descendant is expected to collate debts due by him to the ancestor, whether

arising from contract, delict or any other source. This is the case even if the debt
has prescribed by lapse of time, been extinguished under the provisions of the
Agricultural Credit Act, or been discharged by the insolvency and the
subsequent rehabilitation of the descendant.

Indeed, since the executor is obliged to recover all debts owing to the estate, for
the benefit of creditors as well as beneficiaries, it is only debts that are not
legally recoverable that should be collated. On the other hand, money spent on
the maintenance of the descendant need not be collated; nor need money spent
on his education, nor a simple and unconditional gift—provided that such
expenditure is not substantial in relation to the ancestor’s means and
disproportionate to what other descendants have received.

11.2 Who is liable to collate

The only persons liable to collate are descendants who are heirs on intestac y,
or who are heirs under a will of an ancestor (provided that they would have
been his heirs had there been no will); a hence a grandchild, whose father is
alive, and who is an appointed heir under his grandfather’s will, need not
collate. If his father is dead, however, he must collate not only what he has
received from his grandfather, but also amounts his father received.

Collation applies only to heirs who have adiated. If an inheritance is repudiated,

the heirs who receive the inheritance by accrual will be required to collate what
the repudiating heir would have had to collate.
Legatees and pre-legatees are not liable to collate unless the will provides to the
contrary.

11.3 Who benefits from collation

The only persons who may insist on collation, and share in the benefit thereof,
are

 descendants who would themselves be under a duty to collate; and,

possibly,
 a surviving spouse married to the deceased in community of property.

It follows, therefore, that legatees who are not obliged to collate, and the
estate’s creditors who can recover their debts in the ordinary course, cannot
benefit from what is collated.

12. Beneficiaries

12.1 Heirs and legatees

The persons upon whom the testator’s inheritance devolves are the called the
beneficiaries. Beneficiaries may be divided into two
categories:

 heirs; and
 legatees.

Anyone may be appointed as an heir or a legatee, including a natural person, a

fixed or fluctuating class of persons, a company, a public corporation or a
government department.

12.2 Heirs

23
An heir inherits

24
  the entire inheritance;
 a proportional part of it;
 a particular part of it; or
 the residue of the inheritance.

A testator may nominate one heir or many heirs. An heir may be nominated in a
will or in an antenuptial contract. An heir may also inherit intestate.

14.3 Legatees

Legatees are beneficiaries in testate succession only. They inherit a specific or

determinable asset (like a car) or a specified amount of money (exactly
R10,000, for example). A legatee may be nominated only in a will or in an ante-
nuptial contract. It is not possible for legatees to exist where the deceased died
intestate.

A pre-legacy is a special bequest which has preference over all other bequests
in terms of the testamentary instructions.

The testator may only bequeath his assets, or the assets of a third party, by
means of a legacy.

A legacy will fail under the following

circumstances:

 if the testator voluntarily alienates the subject-matter of a legacy during

his lifetime, in which case it is said that the legacy fails through
ademption;
 if the legatee dies before the legacy passes to him or her;
 in the event that the legatee repudiates;
 in the event that the legatee is unfit to inherit;
 if the bequeathed asset is destroyed; and
  if the legacy is made for a specific purpose, which purpose becomes
impossible to execute.

14.4 Differences and similarities

The differences between heirs and legatees may be summarised as

follows:

 Heirs occur in both testate and intestate succession; legatees occur only in
testate succession.
 After the estate debts are paid, the executor must pay the legatees first.
The legatees, therefore, have a better right and are in a stronger position
than heirs.
 At common law, heirs are obliged to collate: that is, to return any benefit
received during the currency of the testator’s life, over and above
reasonable support and maintenance. Legatees do not have this
obligation.

14.4.1 Adiation and repudiation

Heirs and legatees have no obligation to receive an inheritance; they have the
choice to accept or reject what has been bequeathed. In this context,

 adiation refers to the acceptance of a benefit; and

 repudiation (or renunciation) refers to the refusal to accept a benefit, or
the rejection or renunciation thereof.

A. Adiation

Acceptance of a benefit under a will, generally referred to as “adiation,” is the

act of a beneficiary in signifying an intention to take the benefit. A beneficiary
is not obliged to accept a benefit under a will. However, if he accepts the
benefit, he incurs any liability which may be involved in it. The general rule is
that a person is assumed to have adiated unless he expressly repudiates. Nothing
express or explicit is required by way of acceptance.

The acceptance of an unconditional benefit, therefore, is generally taken for

granted, but not where the acceptance involves a liability, in which event the
beneficiary has a choice or election whether to accept or to repudiate the
benefit. For example, where the will leaves property to a person on condition
that he or she pays a sum of money to another person, or that he or she gives
another person some of his or her own property, or that he or she maintains and
supports some other person.

The Wills Act provides that if any descendant of a testator, excluding a minor
or mentally ill descendant, who together with the surviving spouse of the
testator, is entitled a benefit in terms of the will, renounces his or her right
to receive such a benefit, such benefit shall vest in the surviving spouse.
Where the surviving spouse does not stand to inherit, and unless the will
indicates otherwise, the renounced benefit must devolve on the descendants of
that descendant per stirpes.

The effect of adiation is that the heir or legatee acquires a vested personal right
against the executor for delivery of the asset once the estate has been liquidated.

B. Repudiation

The effect of repudiation is enunciated in the relevant provisions of the Wills

Act and the Intestate Succession Act. The former provides as
follows:

If any descendants of a testator, excluding a minor or a mentally ill descendant,

who, together with the surviving spouse of the testator, is entitled to a benefit in
terms of a will renounces his right to receive such benefit, such benefit shall
vest in the surviving spouse. 26
If a descendant of the testator, whether as a member of a class or otherwise,
would have been entitled to a benefit in terms of the provisions of a will if he
had been alive at the time of death of the testator, or had not been disqualified
from inheriting, or had not after the testator’s death renounced his right to
receive such a benefit, the descendants of that descendant shall, subject to the
provisions of subsection (1), per stirpes be entitled to the benefit, unless the
[10]
context of the will otherwise indicates.

The Intestate Succession Act contains the following

provisions:

If a descendant of a deceased, excluding a minor or mentally ill descendant,

who, together with the surviving spouse of the deceased, is entitled to a benefit
from an intestate estate renounces his right to receive such a benefit, such
benefit shall vest in the surviving spouse.

If a person is disqualified from being an heir of the intestate estate of the

deceased, or renounces his right to be such an heir, any benefit which he would
have received if he had not been so disqualified or had not so renounced his
right shall, subject to the provisions of subsection (6), devolve as if he had died
immediately before the death of the deceased and, if applicable, as if he was not
[11]
so disqualified.

15. Capacity to inherit

The general rule is that all persons, born or unborn, natural or juristic, and
regardless of their general legal capacity—minor children, too, therefore—may
take validly any benefit conferred on them by will or on intestacy. There are,
however, various factors that may influence a beneficiary’s capacity to inherit.
Persons who have limited legal capacity are still capable of inheriting.
However, their ability to enjoy their inheritance as they see fit is affected.
16. Nasciturus fiction

A conceived but unborn foetus (the nasciturus) is not a legal subject, but the law
takes into account the fact that, in the normal course of events, the foetus will
one day become a legal subject. The nasciturus fiction states that, if an
advantage accrues whilst a child, later born alive, is a feotus, he is deemed to
have the requisite legal personality from the time that the benefit accrues.

The requirements for the nasciturus fiction are

 that the child have been conceived by the time the benefit accrues (the
date of the death of the deceased);
 that the child subsequently be born alive; and
 that the fiction work to the advantage of the nasciturus.

Intestate succession and division of assets are postponed until there is certainty
as to whether the foetus is born alive or not, to see whether the nasciturus
fiction is applied.

Testate succession looks at the intention of the testator:

 If the testator's intention shows specific beneficiaries, the nasciturus

fiction will not apply.
 If it shows members of a class of persons, the nasciturus fiction will
apply.

The fiction will apply unless it has been specifically excluded from the w

[12]
ill. The fiction has gained statutory recognition in the Wills Act.
17. Adopted and extra-marital children

Adopted children are regarded, for all purposes, as the natural children of their
adopted parents. The legal link between the child and his actual biological
parents is severed, therefore.

Under the common law, extra-marital or illegitimate children were not qualified
to inherit from their father’s intestate estate, but could inherit from that of their
mother. There is no longer any distinction between legitimate and extra-marital
children; both are now in the same position.

18. Indignus

An indignus beneficiary (which is to say, an unworthy beneficiary) is precluded

from inheriting because his conduct makes him unworthy, in a legal sense, to
take a benefit from the deceased’s estate. The basis for this ground of
disqualification lies in the general principle that no-one may benefit from his
own wrongdoing, or from conduct which the law regards as punishable. This
principle is expressed by the maxim de bloedige hand neemt geen erf (the
bloodied hand may not benefit). Unworthiness is not a general principle; an
individual can only be unworthy in respect of a particular person or that
person’s conjunctissima (parent, spouse or child).

There are common-law and statutory grounds for disqualification that prevent
beneficiaries from inheriting, and the courts have, over time, developed the law
relating to these. Although the courts have recognised certain conduct as
distasteful, the grounds of unworthiness are not limited. In consequence, and
relying on prevailing values of public policy, new grounds of unworthiness may
arise in the future. Instances where the courts have rendered a person unworthy
to inherit are as follows:
Below are listed various categories of unworthy persons. It is not a closed
list.

19. Fraud, duress and undue influence

A person may not inherit who, by fraud, duress or undue influence, has induced
the testator to make a disposition in his or her favour. The amount of pressure
which leads to the invalidity of a disposition on the ground of undue influence
depends on various factors, such as the mental state of the testator and the
relationship between the persons concerned.

20. Inducing immorality or degradation

A person who induces the deceased to lead an immoral or degrading lifestyle

may not inherit either.

21. Unlawfully causing or contributing to the death of

another

This can be either the intentional or negligent unlawful causing of death of

another. At common law, somebody who has negligently caused the death of a
deceased (of the testator’s conjunctissimi) is also unworthy of inheriting from
the deceased. It is evident, therefore, that unworthiness is not contingent on a
[13][14][15]
criminal act.

Where, therefore, the deceased does not die immediately, and does not revoke a
bequest conferred on the killer, the latter is still precluded from inheriting. It is
an open question whether a person who has killed his spouse may claim the
survivor’s share in terms of the matrimonial property regime governing their
marriage.
22. Justifiable homicide

A person is only disqualified if he caused the death of the deceased unlawfully

and intentionally. If a person has successfully raised a defence of justifiable
homicide, this is a full defence, and the accused is entitled to inherit from the
deceased.

23. Perpetrator not criminally responsible

A person who is incapable of forming the necessary intention will not be

[16][17]
regarded as being unworthy to inherit.

24. Forging, hiding or destroying a will

Forging, hiding or destroying a will is not only a civil wrong (in that a person
who does so will not be entitled to inherit); it is also a criminal wrong (in terms
of section 102 of the Administration of Estates Act). A person is guilty of a
crime, therefore, who steals, wilfully destroys, conceals, falsifies or damages a
[18]
will, and may not inherit in terms of that will.

25. Pension benefits

A pension benefit is not considered to be an asset of a deceased estate. Pension

benefits are dealt with outside the estate. The deceased may not bequeath these
benefits to an heir or legatee. If pension benefits are due to the deceased, the
trustees will decide to whom they are awarded. The bloedige hand principle has
[19]
been extended to cover pension benefits.

26. Insurance benefits

When taking out an insurance policy, one must nominate a beneficiary. The
[20]
bloedige hand principle has been extended to cover insurance benefits.
27. Persons involved in executing a will

Section 4A(1) of the Wills Act disqualifies four categories of people form
receiving a benefit from a will:

 a person who signs the will as a witness;

 person who signs the will as a proxy;
 a person who signs the will in the presence of and by the direction of the
testator;
 a person who writes out the will or any part of it in his own handwriting;
and
 the spouse of any of the above persons.

For the purposes of this provision, “any benefit” includes nomination as an

executor, trustee or guardian.. The rationale for such disqualifications is that
they prevent fraud.

A beneficiary will not be disqualified, however, in the following

circumstances:

 A court may declare a person or spouse competent to receive a benefit if

it is satisfied that the testator was not defrauded or unduly influenced.
 If a person would have been entitled to receive a benefit in terms of
intestate succession, he will not be disqualified, provided that the value of
the benefit in terms of the will does not exceed what would have been
received in terms of intestate succession.
 If a person who is entitled to receive a benefit in terms of the will has
signed the will as a witness, along with two other competent witness who
will not receive a benefit, that first person may inherit.
Section 4A does not apply where a beneficiary under a will witnesses a
subsequent codicil made by the testator; similarly, a witness to a will may take
a benefit under a subsequent codicil made by the testator.

28. Animals

Animals are not legal persons and, therefore, may not be beneficiaries in a will.
When receiving a benefit, the heir must sign a receipt; obviously animals are
unable to do so. Provision may be made for animals, however: trust funds to
care for them, conditions that a person only inherits if they take care of the
animal, etc.

29. Who inherits in the case of disqualification?

Where an heir who is a descendant of the testator, whether as a member of a

class or otherwise, is disqualified from inheriting on any one of the grounds
treated above, the benefit that he would have received devolves to his
descendants per stirpes. This statutory rule is subject to there being no contrary
intention in the will.

30. Customary law

Although the customary law of intestate succession has been abolished to a

great extent by means of court judgments, there are customary law impediments
influencing a beneficiary’s capacity to inherit in terms of the customary law of
succession. Cognisance must be taken of certain rules if a testator uses the
principle of freedom of testation to stipulate in his or her will that the
customary law of succession must apply.
31. Intestate succession

Intestate succession takes place whenever the deceased leaves property which
has not been disposed of by valid testamentary instrument. In other words, the
law of intestate succession applies only:

 when the testator has left no valid will or testamentary disposition

contained in a valid pactum successorium (e.g., antenuptial contract,
donation mortis causa); or
 when he leaves a will which fails for some or other reason.

Intestacy may be total (applying to the whole of the assets left by the deceased)
or partial (applying to a portion only of his assets), for the deceased may die
partly testate and partly intestate: for example, if the deceased bequeaths his car
[21]
to his son but does not mention the rest of his estate.

Intestacy is total when none of the assets are disposed of by a valid will: for
example, where there is no will at all, or only a will which is void, or which has
been revoked. Intestacy is partial when the deceased has left a valid will which,
however, does not dispose of all his assets; in this event there is an intestacy as
to the undisposed residue. This may happen in many circumstances: for
example,

 where the will does not appoint an heir at all, but appoints only legatees,
and a residue is left over after the liabilities and the legacies have been
satisfied;
 where the appointed heir(s) fail to succeed;
 where an heir is appointed to a fractional portion of the estate only, and
there is no other disposition of property;
  where heirs have been appointed, each to a fractional portion of the
estate, and the disposition to one of them is a nullity, or one of them fails
to succeed to his share.

Furthermore, intestacy can occur if certain conditions in an otherwise valid will

are not fulfilled, or if benefits have been repudiated and no provision has been
made for substitution and accrual cannot take place.

32. History and sources

[22]
The law of intestacy was virtually codified by the Intestate Succession Act,
which came into force on 18 March 1988. Before that, the South African
system of intestate succession had to be construed from a variety of common-
law and statutory rules. The law of intestate succession is rooted in the
legislation of the Stat es of Hol land: the Political Ordinance of 1 April 1580, as
clarified and amended by the Interpretation Ordinance of 13 May 1594 and
Section 3 of the Placaat of 18 December 1599.

In 1621 the Heeren XVII of the Dutch East India Company instructed the
government of the Dut ch East Indies to enforce these enactments, and
the States-General decreed them to be in force in Cape Colony by the Octrooi
of 10
January 1661, which was confirmed by Governor Pasques de Chavonn es on 19
June 1714.

The main common-law principles of intestacy were derived from a combination

of two systems, somewhat in conflict, which prevailed prior to 1580 in the
Netherlands: the aasdomsrecht, the law of No rth Hol land and Friesland,
which meant “the next in blood inherits the properties”, and the
schependomsrecht, the law of South H ol land and Zeeland, which meant “the
properties return to the
 [2 3 ]
line whence they came”. Under both systems, the property of an
intestate
person went to the deceased’s blood relations only: in the first place, to his
descendants; failing them, to his ascendants and collaterals. There were several
important differences in the manner of devolution.

The 1580 Ordinance adopted the schependomsrecht distribution per stirpes,

restricting it in the case of collaterals to the fourth degree inclusive. Finally, the
1599 Placaat compromised between the two systems with respect to
distribution, and gave one half of the estate to the surviving parent, and the
[24][25]
other half to the descendants of the deceased parent.

The above laws conferred a right of succession on intestacy on the deceased’s

blood relations, but none on a surviving spouse or an adopted child, and
furthermore restricted the intestate succession rights of the extra-marital child.
Because marriage in community of property was the norm, such a spouse ipso
facto took half of the joint estate.

Initially, the word spouse in the Intestate Succession Act was restrictively
interpreted to mean only those spouses who had contracted a marriage in terms
[2 6 ]
of the Marriage Act. This interpretation has since been extended by case
law, in recognition of the modern perception that there is a need to protect the
interests of surviving spouses. The common law, as derived from the two
different systems that applied in Holland, has been adapted on numerous
occasions by legislation. The most important such legislation was probably the
[27]
Succession Act, in terms of which the surviving spouse, whether married in
or out of community, was granted a right to a share in the intestate estate of the
deceased spouse.

[28]
The Intestate Succession Act of 1987 instituted a much simpler system of
intestate succession, revoking common-law rules and all statutory adaptations
in their entirety. The Intestate Succession Act, together with the Children’s
Act,
extended the categories of persons who may be heirs who take in intestacy. For
example, all natural persons, irrespective of whether they are adopted or extra-
marital, or conceived by artificial insemination, or born as a result of a
surrogacy arrangement, nowadays have the capacity to inherit.

The Intestate Succession Act applies, except as explained below, in all cases
where a person dies wholly or partially intestate after March 18, 1988. Under
the Act, the surviving spouse and the adopted child are heirs of the deceased.
The historical discrimination visited on extra-marital children has disappeared.
The position of adopted children is now dealt with in the Child Care Act.
[29]

Until recently, the application of the Intestate Succession Act was regulated on
a racial basis. Certain intestate estates of African people were distributed
according to the "official customary law," as entrenched in the Black
Administration Act and its regulations, while the Intestate Succession Act
applied to the rest of the population. The Black Administration Act and the
Regulations passed there under, provided that the estates of black people who
died without leaving a valid will sometimes devolved according to “Black law
and custom.” This meant, inter alia, that the reforms introduced by the Intestate
Succession Act did not apply to spouses married in terms of African customary
law. As far as children were concerned, the parallel system of African
customary law of succession perpetuated discrimination against adopted, extra
marital and even female children.

This racial disparity in the treatment of spouses and children disappeared when
the Constitutional Court, in Bhe v Magistrate, Khayelitsha, extended the
provisions of the Intestate Succession Act retrospectively, as from April 27,
1994, to all intestate heirs, irrespective of race.
While the Intestate Succession Act is important, one cannot discount case law
when determining the rules of intestate succession. If and when the RCLSA is
promulgated into law, it, too, will be relevant for determining South Africa's
intestate-succession laws.

33. Computation of kinship

33.1 Blood relations

I. Descendants are persons who descend directly from another person, such
as children, grandchildren, great grandchildren, etc.
II. Ascendants are persons from whom the person is directly descended, like
parents, grandparents, great grandparents, etc.
III. Collaterals are relatives who are neither ancestors nor descendents—such
as siblings, aunts and uncles, nieces and nephews, etc. Collaterals can be
full- or half-blooded. A full-blood collateral has two ancestors in common
with a person; a half-blood collateral has only one. A sister, therefore, is a
full-blood collateral—she has both parents in common with her sibling—
but a half-sister is only a half-blood collateral, since she has only one
parent in common.

If, in other words, Boucher and Cronje are descendants of Abel—that is, if Abel
is an ancestor of Boucher and Cronje—Boucher and Cronje are full-blood
collaterals.

The term parentela refers to a particular parental group and its

descendants:

 First parentela consist of the person whose estate must be divided, and
his descendant.
 Second parentela consist of the deceased’s grandparents.
 Third parentela consist of great-grandparents.
And so the parentela go on.

There are three stirpes in this example. B is a stirpes, as he is a surviving

descendant of A. C is a stirpes, as he is survived by descendants. E is a stirpes,
as he is survived by descendants. F is not a stirpes, as he is not survived.
 There are two stirpes in this example. C is
a stirpes, as he is a surviving descendant of A. D is a stirpes, because he is
survived by a descendant. In other words, although D and H are both deceased,
D is survived by his grandchild; therefore it is D who is the stirpes, not I.

A stirp may be translated literally as a branch. In the present context, therefore,

it includes the surviving child of a deceased, as well as a predeceased child
survived by descendants.

When determining how many stirpes there are, one should pay attention to the
immediate descendants of the deceased and then see if they are alive or if their
descendants are alive.

If B is unworthy to inherit, or if he chooses not to, F and G may represent B in

order to inherit.
IV. Representation arises when an heir cannot, or does not wish to, inherit
from the deceased. In this case, the descendants of the heir may represent
the heir to inherit.
34. Effect of marital regimes

If the deceased is married at the time of his death, the property regime that
applies to his marriage is of utmost importance since it affects the distribution
of the deceased’s estate. In terms of the Recognition of Matrimonial Property
Act, the first marriage of a male with more than one wife is always considered
to be in community of property. If a second marriage is entered into, the parties
must enter into an antenuptial contract, which will regulate the distribution of
the estate.

Essentially, there are four forms of marital regimes recognised by the

courts:

1. community of property (Afrik gemeenskap van goed);

2. community of profit and loss (Afrik gemeenskap van wins en verlies);
3. separation of property (Afrik skeiding van goed); and
4. the accrual system (Afrik aanwasbedeling).

With regard to marriages in community of property or in community of profit

and loss, the surviving spouse automatically succeeds to half of the joint estate
(communio bonorum); the remaining half devolves according to the rules of
intestate succession.

[3 0 ]
With regard to marriages in separation of property, the entire estate
devolves according to the rules of intestate succession.

[31]
With regard to the accrual system, where one spouse’s estate shows no or
lesser accrual than that of the other spouse, the lesser-accruing spouse has a
claim for an amount equal to half of the difference between the two net accrued
estates. The equalization payment must be dealt with first as a claim against or
in favour of the estate. The balance thereafter must devolve according to rules
of intestate succession.
If a husband has an estate of R100,000 at the start of his marriage, and
R200,000 at the end of the marriage, R100,000 will have accrued. If his wife, at
the start of her marriage, has an estate worth R50,000, and at the end of the
marriage worth R100,000, the amount accrued will be R50,000. If the husband
dies, the difference in the accrual of both estates is R50,000; therefore the wife
has a claim for half of the accrued amount: R25,000. Thereafter the remainder
of the estate will devolve in terms of the rules of intestate succession.

35. Vesting of intestate-succession rights

The question of who in fact the heirs are is normally determined as at the date
of the death of the deceased. Where, however, the deceased leaves a valid will
which takes effect on his death, but subsequently fails, either wholly or in part,
the intestate heirs are determined as at the date on which it first became certain
that the will had failed.

35.1 Order of succession on intestacy

Section 1(1)(a) to (f) of the Intestate Succession Act contains the provisions in
terms of which a person’s estate is to be divided. In terms of this section, there
are ten categories which indicate who will inherit. Section 1(2) to (7) contains
certain related provisions.

a. Spouse only, no descendants

Where the deceased is survived by a spouse, but not by a descendant, the

spouse
inherits the intestate estate. “Spouse” includes

 a person married to the deceased in accordance with Muslim rites;

 a person married to the deceased in terms of African Customary Law; and
  a partner in a permanent same-sex life partnership in which the partners
have undertaken reciprocal duties of support.

b. No spouse and only descendants

The estate is worth R300,000. A, B and C will each receive R100,000.

The estate is worth R300,000. B and C will each receive R100,000. D and E
will each receive R50,000 (A's one-third share divided equally).

Where the deceased is survived by a descendant, but not by a spouse, the

descendant inherits the intestate estate. The estate is divided into as many equal
portions as there are surviving children and deceased children who leave
descendants. Each surviving child takes one share, termed a “child’s share,” and
the share of each deceased child is divided equally among his surviving
children and each group of descendants of a deceased child. This process is
known as representation per stirpes; it continues ad infinitum.

An adopted child is deemed, for all purposes, to be the legitimate child of its
adoptive parent. An order of adoption terminates all rights and obligations
existing between the child and its natural parents (and their relatives). It follows
that an adopted child inherits upon the intestacy of its adoptive parents and their
relatives, but not upon the intestacy of its natural parents and their relatives.

Under Roman-Dutch law, an illegitimate or extra-marital child inherited upon

the intestacy of its mother, but not of its father. This limitation on the capacity
of the extra-marital child to inherit on intestacy has been swept away by the
Intestate Succession Act, which provides that, in general, illegitimacy shall not
affect the capacity of one blood relation to inherit the intestate estate of another
blood relation. Illegitimacy arising from incest, too, no longer presents a
problem. Furthermore, as noted earlier, the tenuous position of extra-marital
children under African customary law of succession, too, has been removed by
making the Intestate Succession Act applicable to all children.
 c. Spouse and descendants

The estate is worth R400,000. There are three children; therefore, one should
divide the entire estate by four (three children plus one) to calculate a child’s
share. A child’s share is thus R100,000. Because the spouse inherits the greater
of R125,000 and a child’s share, the spouse in this example will inherit
R125,000. The remaining R275,000 is then divided equally between the
children. Thus each child will receive R91,666.67. If the estate is worth less
than R125,000, the spouse will inherit everything.

Where the deceased is survived by one spouse, as well as by a descendant, the

surviving spouse inherits whichever is the greater of

 a child’s share; and

 an amount fixed from time to time by the Minister of Justice and
Constitutional Development (presently R125,000).

The descendant or descendants inherit the residue (if any) of the intestate
estate.

To calculate a child’s share, the estate is divided into as many children’s shares
as stated above, plus an additional share, which the surviving spouse
takes.
Where the deceased is survived by more than one spouse, a child’s share in
relation to the intestate estate of the deceased is calculated by dividing the
monetary value of the estate by a number equal to the number of children of the
deceased who have either survived or predeceased the deceased, but who are
survived by their descendants, plus the number of spouses who have survived
the deceased. Each surviving spouse inherits whichever is the greater of

 a child’s share;
 an amount fixed from time to time by the Minister (presently R125 000).

The descendant or descendants inherit the residue (if any) of the intestate estate.
Where the assets of the deceased are not sufficient to provide for each spouse
with the amount fixed by the Minister, the estate is divided between the
surviving spouses.

The share inherited by a surviving spouse is unaffected by any amount to which

he or she might be entitled in terms of the matrimonial-property laws.

d. No spouse, no descendants; both parents survive the deceased

Where the deceased leaves neither a spouse nor a descendant, but is

survived

 by both his parents, they inherit the intestate estate in equal shares; or
 by one of his parents, the surviving parent inherits one half of the
intestate estate and the descendants of the deceased parent the other half,
unless there are no such descendants, in which case the surviving parent
inherits the entire estate.

In relation to the descendants of a parent of the deceased, division of the estate

takes place per stirpes. Representation is allowed ad infinitum.
 e. No spouse, no descendants; only one parent survives; deceased
parent leaves descendants

In this case, the surviving parent will inherit half of the estate, and the
descendants of the deceased parent will inherit the residue per stirpes by
representation.

X is the deceased in question. His estate is worth R300,000. F will receive his
half share of R150,000. M is the deceased mother, so her half-share will be
divided equally between her descendants. Therefore C and A will each receive
R75,000.

In this case, the surviving parent is the sole heir.

f. No spouse, no descendants, no parents; both parents leave

descendants

X is the deceased in question. His estate is worth R300,000. Half of the estate
goes through M and the other half through F, as they are the parents of the
deceased. Y, Q, A and B will receive R37,500 each through F’s line, as they are
all descendants of F (R150 000 divided by four). A and B will receive R75,000
each through M’s line, as they are both descendants of M (R150 000 divided by
two). Thus overall Y and Q will receive R37,500 each, while A and B will
receive R112,500 each (R37,500 plus R75,000).

Where the deceased is not survived by a spouse or desce ndant or parent, but is
survived by descendants of his parents (by a brother or sister, for example,
whether of the full or half blood), the intestate estate is divided into halves, one
half going to the descendants of the deceased father by representation, the other
half to the descendants of the deceased mother. The full brothers and sisters of
the deceased consequently take a share in both halves of the estate, while the
half-brothers and -sisters take a share in one half only of the estate. If, however,
all the surviving descendants are related to the deceased through one parent
alone, such descendants inherit the entire estate. Thus, for example, if there are
no full brothers or sisters, but merely a half-brother of the deceased on his
mother’s side, the half-brother will take the whole estate to the exclusion of
more remote relatives such as grandparents, uncles or aunts.

g. No spouse, no descendants, no parents; one parent leaves

descendants
A and B will inherit the entire estate in equal shares.

In this case, the descendants of the parents will inherit the entire estate in equal
shares. The descendants inherit per stirpes by representation.

h. No spouse, no descendants, no parents, no descendants of the parents

E dies intestate. E’s spouse (V), mother (M), father (P), brother (A) and
grandfather (C) predeceased him. E is survived by his grandmother (B), great-
grandmother (D and great-grandfather (F). Who inherits E’s estate? Look to the
people still alive: B is related to E in two degrees; D and F are related to E in
three degrees. Since the nearest blood relative is the one who inherits, B will
inherit everything from E.

Where the deceased is not survived by a spouse, descendant, parent, or a

descendant of a parent, the other blood relations of the deceased who are related
to him nearest in degree inherit the estate in equal shares (per capita). The
degree of relationship between the parties is,
  in the direct line, the number of generations between the deceased and the
ancestor or descendant (as the case may be); and,
 in the collateral line, the number of generations between the blood
relation and the nearest common ancestor, plus the number of
generations between that common ancestor and the deceased.

A parent or child of the deceased would thus be related to him in the first
degree, a grandparent or grandchild in the second degree, an uncle or aunt in the
third degree, and so on.

i. No spouse or living blood relatives

If there are no relations of the deceased, by blood or by adoption, and no

surviving spouse, the fiscus or State is entitled, after the lapse of thirty years, to
claim the estate as bona vacantia (unclaimed property) in terms of the common
law. The authority for this is the case of Estate Baker v Estate Baker. In
these circumstances the State is not an “heir,” and the estate is not “inherited.”
It merely accrues to the State.

36. Disqualification and renunciation

[32]
The Law of Succession Amendment Act, which came into operation on
October 1, 1992, amended the Intestate Succession Act as regards the rules for
the disqualification of and the renunciation by an intestate heir of his
inheritance. If a person is disqualified from being an intestate heir of the
deceased, the benefit which the heir would have received had the heir not been
disqualified, devolves as if the heir had died immediately before the death of
the deceased, and as if the heir had not been disqualified from inheriting.

Where an heir who stands to inherit along with the surviving spouse (provided
that that heir is not a minor or mentally ill) renounces his or her intestate
benefit, such benefit vests in the surviving spouse. Where there is no surviving
spouse, the benefit devolves as if the descendant had died immediately before
the death of the deceased.

37. Customary law

Section 23 of the Black Administration Act stated that, when African persons
died intestate, their estates devolved in terms of the rules of primogeniture.
Women and children, therefore, were excluded from inheriting under this Act.
The case of Bhe v The Magi st rate, Kha yeli tsha changed this by striking
down section 23 as unconstitutional.

There is a statute not yet in force (the Reform of Customary Law of Succession
and Regulation of Related Matters Act) which states that the estates of persons
subject to customary law who die intestate will devolve in terms of the Intestate
Succession Act. This Act thus modifies the customary-law position.

A testator living under a system of customary law may still use his or her
freedom of testation to stipulate that the customary law of succession must be
applicable to his or her estate. In such a case, it would be necessary to apply the
customary law of succession to the deceased estate.

If the customary law of succession is applicable, it is important to distinguish

between the order of succession in a monogamous and polygynous household.

38. Intestate succession and Muslim marriages

Persons married in terms of Muslim rites are not recognised in South African
law as “spouses” proper. All references, therefore, to “spouses” in the Intestate
Succession Act do not apply. The courts in Daniels v Campb ell and
Ha ssam v
Jacobs, however, have held that persons married in terms of Muslim rites may
inherit as if they were spouses proper.

39. Intestate succession and Hindu marriages

Persons married in terms of Hindu rites are not recognised in South African law
as “spouses” proper. All references to “spouses” in the Intestate Succession Act
accordingly do not apply. The court in the case of Govender v Ragavayah,
however, held that persons married in terms of Hindu rites may inherit as if
they are spouses proper.

40. Intestate succession and permanent same-sex life

partnerships

Before the Civil Union Act, partners in a permanent same-sex life partnership
were not allowed to marry, and so could not inherit from each other intestate.
The case of Go ry v Kolv er changed this position, with its finding that such
partners could inherit intestate.

There is a proposed amendment to section 1 of the Intestate Succession Act,

which will include partners in a permanent same-sex life partnership in which
the partners have undertaken reciprocal duties of support in the definition of
“spouse.” The amendment of the Act, it has been argued, is ill-advised. The
memorandum to the Amendment Bill cites Gory v Kolver as authority, but it
has been suggested that the situation which prevailed at the time that this case
was heard no longer exists, due to the advent of the Civil Union Act. The
decision in Gory v Kolver case was predicated on the fact that the parties were
not able to formalise their relationship in any way. On the evidence, the parties
had undertaken mutual duties of support. Had it been possible for them to do so,
they would almost certainly have formaised their relationship. Were the parties
in that situation presently, they would have the option of formalising their
relationship under the Civil Union Act. The survivor would be considered a
"spouse" for the purposes of the Intestate Succession Act. The net effect of the
proposed amendment, it has been argued, is that it elevates same
-sex partnerships to a level superior to that of heterosexual life partnerships.

It has been suggested that the proposed Domestic Partnership Bill will address
the concerns of parties to a same-sex or heterosexual relationship insofar as
intestate succession is concerned. More importantly, both types of relationship
(same-sex and heterosexual) will be on an equal footing under the proposed
Domestic Partnership Bill. This arguably would not be the case if the proposed
amendment to the Intestate Succession Act were signed into law.

Furthermore, the memorandum to the amendment Bill states that the proposed
amendment limits the application of the clause to cases where the court is
satisfied that the partners in question were not able to formalise their
relationship under the Civil Union Act. The question remains, however: What
exactly would these circumstances be?

41. Intestate succession and permanent heterosexual life

partnerships

It is trite that the survivor of a heterosexual life partnership enjoys no benefits

as a spouse under the Intestate Succession Act; nor may the survivor of a
heterosexual life partnership claim maintenance from the deceased estate in
[33]
terms of the Maintenance of Surviving Spouses Act.

The Draft Domestic Partnerships Bill seeks to address those persons who do not
wish to marry but who still want to formalise their partnerships. Section 20 of
the Bill states that the definition of "spouse" in section 1 of the Intestate
Succession Act will include a registered domestic partner.
Section 26 of the Bill also provides that an unregistered domestic partner may
apply for an order for intestate succession, and that the court will take into
account, inter alia,

 the duration and nature of the relationship;

 the nature and extent of the common residence;
 the financial interdependence of the parties;
 the care and support of children of the parties; and
 the performance of household duties.

The Bill does not make the relationship between the parties a "ma rriage" or
a
"civil union" proper; it merely allows for the registration of the
partnership.

42. Testate succession

Testamentary succession takes place by virtue of either a will or a

codicil:

 A will or testament is a declaration, in proper form, by a person known as

the “testator” or “testatrix,” as to how and to whom his or her property is
to go after his or her death.
 A codicil is a second or later will, either annexed to the original will or in
a separate document. It is usually employed to supplement and to make
alterations to the original will. By virtue of the Wills Act, a codicil is
included within the definition of “will.”

The date of execution of a will is the date on which the will is signed. Before
1954, when the Wills Act came into force, all provinces had their own
legislation regulating the law of testate succession; now the Wills Act has
uniformed the law in this regard.
When dealing with a will which may have been executed under suspicious
circumstances, it is important to investigate whether the testator wanted to
execute a will and whether he or she did so freely.

Once these requirements have been fulfilled, and once it has been established
that the formalities have been complied with, the executor is appointed. He has
to deal with the general winding-up of the estate.

Adiation and repudiation form the basis of succession, as it is important to

know whether a beneficiary adiates or repudiates a benefit before the executor
can begin with the final liquidation and distribution of an estate.

43. Freedom of testation

Freedom of testation is the power a testator has to deal with his property as he
desires. A cardinal principle of South African law is that all persons have
complete freedom of testation; no person is obliged to bequeath his estate to
[34]
anyone. A clause in a will, or an agreement which seeks to limit a testator’s
freedom to dispose of his property on death, is unenforceable.

Freedom of testation is not absolute, however. It is subject to limitations

imposed by statute and the common law. While a testator is generally permitted
to disinherit his spouse and his children, and is free to impose conditions on
beneficiaries regarding how they should enjoy an inheritance, or when a benefit
is to vest, there are instances when, as a matter of public policy, the law
restrains testators in their exercise of this freedom. The Constitution also has a
role to play here.

Nowadays, a testator living under customary law also has freedom of testation
regarding customary-law property.
 a) Limitations

While testators in South Africa enjoy a wide freedom of testation, this freedom
is subject to certain limitations. These limitations can be divided into statutory
and common law limitations and include conditions that interfere with a
beneficiary’s marital relationship and conditions limiting a beneficiary’s
freedom of movement. The common-law limitations are also entrenched in the
Constitution. Certain indirect limitations, such as those imposed by the
maintenance of children and the Maintenance of Surviving Spouses Act, may
also be found.

 Illegal dispositions and those against public policy

No effect is given to illegal dispositions. If, for example, the testator leaves
money to set up a brothel, no effect will be given to this disposition, since its
purpose is an illegal one.

Effect is also not given to those dispositions which are against public policy.
[35]

 Subdivision of agricultural land

It was custom that, when Dutch people died, they gave their agricultural land to
their sons in equal shares. This led, however, to the fragmentation of farms,
which eventually became so small that they were no longer viable. In terms of
section 3 of the Subdivision of Agricultural Land Act, therefore, the testator’s
capacity to subdivide his land has been limited.

To get around this legislation, a testator may leave the land to a trust or close
corporation, and appoint the beneficiaries as beneficiaries of the trust or close
corporation in equal shares.
  Subdivision of mineral rights

The subdivision of mineral rights is based on the same principle as the

subdivision of agricultural land. Therefore, in terms of section 20 of the
Mineral Rights Act, a testator cannot bequest mineral rights in undivided shares
to more than one person.

 Successive fideicommissa

A fideicommissa occurs

 where a benefit is left to one person (the fiduciary); and

 where, after a period of time or after fulfilment of a condition, the benefit
then goes to another person (the fideicommissary).

With regard to movable property, there may be an infinite number of

fideicommissaries. There may be any number of fideicommissaries. Family
heirlooms, for example, are sometimes passed on to the eldest daughter of the
testator; when she dies, they are passed on to her oldest daughter; and so on, in
perpetuity.

Where, however, there is fixed property that is the subject of a fideicommissa,

only two successive fideicommissaries are permitted. If, for example, certain
land is left to the eldest son of the testator and, when he dies, on to his eldest
son, and upon his death to his eldest son, this is the furtherest the property can
go in terms of the fideicommissa. The second fideicommissa may bequeath the
land to whomever he wishes.

 Maintenance of surviving spouse

There is no general duty on the testator to leave anything to his surviving

spouse. The Maintenance of Surviving Spouses Act was passed to provide a
remedy for surviving spouses. In terms of section 2 of this Act, the surviving
spouse has a claim against the deceased estate for reasonable maintenance until
[36]
her death or remarriage, provided that she is unable to support herself.

Section 3 of the Act states the factors to be considered in determining the

amount of maintenance awarded, in addition to any other factor:

 the amount in the estate of the deceased spouse available for distribution
to heirs and legatees;
 the existing and expected means, earning capacity, financial needs and
obligations of the survivor;
 the subsistence or duration of the marriage;
 the standard of living of the survivor during the subsistence of the
marriage; and
 the age of the survivor at the death of the deceased spouse.

 Maintenance and education of minor children

In terms of the common law, every minor child of a deceased parent has a claim
[3 7 ]
for maintenance and education against the deceased estate. This duty does
not cease when the child attains majority; it runs until the child is self-
supporting. It
is also irrelevant that the child is legitimate or illegitimate.
[38]

If there are insufficient funds in the deceased estate to cover the total
maintenance and education of minor children, the children will receive a pro
rata amount.

The child’s right to claim for maintenance and education has preference over all
[39]
heirs and legatees, and therefore must be determined
first.
The duty to support is passed on from the parent to his estate when he dies, and
so it cannot be bequeathed.

With regard to the maintenance of parents, there is no law providing for this
yet. If, however, the parent of a deceased child can show the need for it,
it is possible that such a claim may be successful.

 Pension funds

In terms of the Pension Funds Act, pension funds do not accrue to the deceased
estate. It is the board of trustees of the particular pension fund which decides to
whom to allocate the money. (This is usually the spouse or the children
depending on the circumstances.) The testator therefore cannot bequeath his
pension funds to an heir or legatee.

 Delegation

The testator may also delegate his or her freedom of testation to a certain extent
by conferring the power of appointment upon other persons.

 Customary law

A person living under a system of customary law is free to make a will

regarding customary property. The principles regarding power of appointment
should, however, be kept in mind in such instances.

44. Testamentary capacity

In order to make a will, the testator must have testamentary capacity. If he does
not have such capacity at the time the will is executed—that is to say, at the
time it is signed—the will is void ab initio, and thus is deemed to never have
been valid.
The Wills Act deals with the formal capacity to make a will. Section 4 of the
Wills Act states that a person has formal capacity to make a will if he
is

 at least sixteen years of age; and,

 at the time of making the will, mentally incapable of appreciating the
nature and effect of his act. If, however, a person who has been declared
mentally defective makes a will during a lucid interval, it is valid.

Testamentary capacity, then, refers to the minimum age and the mental
[4 0 ]
capacity required to make a valid will. The burden of proof in this regard
rests on the party alleging formal capacity. Evidence concerning a testator’s
mental capabilities is taken into account when determining the validity of a will.

The Master of the High Court will accept without evidence that the will that he
receives from the executor was executed with the necessary testamentary
capacity. The issue of a testator’s testamentary capacity will only arise if
someone approaches a court with an application regarding the capacity of the
testator to make a will. The Master determines only whether the formal
requirements of the will have been met; he does not concern himself with the
other formalities regarding capacity.

It is important to distinguish testamentary capacity from the testator’s free

expression of his will (volition) as well as from freedom of
testation.

If the alleged testator is under sixteen years, he is absolutely prohibited from

making a will, even with the assistance of a parent or guardian. Such a will is
void ab initio and thus cannot be ratified at a later date. If the testator is at least
sixteen years, this is one of the few legal undertakings a minor can assume.

60
Minors who are entitled to make wills may do so without the authority or
assistance of their parents or guardians. The common-law restriction placed on

61
deaf-mutes and interdicted prodigals from making wills is not part of modern
South African law.

Under a system of customary law, people have freedom of testation just like
anyone else and also need to comply with the requirements of testamentary
capacity.

 Mental ability of the testator

As stated in section 4 of the Wills Act, the testator must have the requisite
mental ability. There is a rebuttable presumption that the testator is competent.
Incompetence would result from the will's being executed by a person who
suffers from a mental illness or is under the influence of alcohol or drugs (both
legal and illegal) at the time of execution, if that person is incapable of
understanding the nature and effect of what he is doing. This obviously depends
[41][42]
on the circumstances of each case.

 Undue influence on the testator

If there is undue influence exerted on the testator (physical, mental or

otherwise), the testator will lack the requisite capacity. The will will be declared
[43][44]
invalid.

 Capacity to witness a will

Every person of the age of fourteen years or more who is not incompetent to
give evidence in a court of law is competent to witness a will.

45. Formalities for execution of a will

A will is a unilateral expression of the wishes of a testator in a legally

prescribed manner which determines what must happen to his or her property
61
after his or her death. The Wills Act defines a will to “include a codicil and any
other testamentary writing.” The only way in which a testator can make a valid
will is by strictly complying with the detailed requirements of section 2(1) of
the Wills Act.

The will must be in writing, so a video will shall not suffice, as it provides no
signature, and the potential for fraud is too great. An electronic will—that is, a
will stored on a computer hard drive or other data-storage device—may be
condoned, although invalid, in terms of section 2(3) of the Wills Act.

Furthermore, it is not necessary for the date or place of execution to be

recorded, but for practical reasons it is recommended: for example, if a series of
wills are executed revoking previous ones.

Similar execution requirements apply when the testator amends an existing will
by making changes on the will itself. A codicil that amends an existing will
must also be made in accordance with the requirements of section 2(1) of the
Wills Act.

46. Requirements for a testamentary disposition

The four requirements for a testamentary disposition

are

 compliance with statutory formalities (i.e. the Wills Act);

 a description of the property bequeathed;
 the extent of the interest in the property bequeathed; and
[45]
 the identity of the beneficiary.

47. Methods of executing a valid will

62
Accordingly, there are five methods by which the testator may execute a valid
will:

63
 [46]
1. The testator signs the will in the presence of two witnesses. All three
people (the testator and the two witnesses) must be in the same place at
the same time, as all three sign the will.
2. The testator acknowledges in the presence of two witnesses his signature
[4 7 ]
previously placed on the will. The testator is merely to acknowledge
in the presence of the witnesses that he signed the will earlier, and that
the signature on the will is his.
3. Someone else signs on behalf of the testator in the presence of two
[4 8 ]
witnesses and it is certified by a commissioner of oaths. Schedule 1
of the Act contains a certificate which must be completed by
a commissioner of oaths stating the identity of the testator and that it is
in fact the testator’s last will and testament.
4. Someone else signs on behalf of the testator and acknowledges in the
presence of two witnesses his signature previously placed on the will
[49]
which is then certified by a commissioner of oaths. Thus the testator
may sign the will himself either before or in the presence of the
witnesses, or another person may sign on behalf of the testator either
before or in the presence of the witnesses, provided the will is certified by
a commissioner of oaths.
5. The testator signs by making a mark in the presence of two witnesses and
[50]
it is certified by the commissioner of oaths. The testator may make a
cross, a thumbprint or any other mark as a “signature.” This is actually
very common due to the high rates of illiteracy in South Africa.

48. Signing and signature

In terms of section 2(1)(a)(i), a will is not valid unless it is signed by the testator
or someone else (a proxy) on the testator’s behalf. Where a will is signed by a
proxy, the latter must do so in the testator’s presence and by the testator’s
63
direction. For all persons involved in the execution process, a “signature”
includes the making of an initial; in the case of the testator, it also includes the
making of a mark, such as a cross or a thumbprint, but in that event the will
must be certified as set out below.

The will must be signed by the testator or the proxy, or be acknowledged by the
testator, and (if applicable) the proxy, in the presence of two or more competent
witnesses present at the same time.

The witnesses must attest and sign the will in the presence of the testator and of
each other, and, if the will is signed by a proxy, in the presence also of the
latter. A witness, unlike a testator, may not sign by making a mark.

If there is more than one page to the will (other than the page on which it ends),
the testator or proxy must sign or make a mark on each and every page of the
[51][52]
will.

[53]
It is unclear from the Act whether witnesses are required to sign on every
page or just at the end of the will, as it just says that they must sign the will. It is
generally accepted that witnesses are not required to sign every page; they are
simply required to sign any page anywhere on the page.

49. Certificate

When a testator signs his will with a mark, or by proxy, a certificate from a
commissioner of oaths is required, in which the commissioner certifies that he
or she is satisfied as to the identity of the testator, and that the document is the
will of the testator. In terms of the Wills Act, the commissioner must sign
anywhere on every page of the will. The certificate must be completed as soon
as possible after the will is signed by the testator or the proxy. Should the
testator die before the certificate is made or completed, the commissioner must
64
as soon as possible thereafter complete the certificate and sign the will as
indicated above. The importance of this requirement was seen in the case of
Tshabalala v Tshabalala.

The commissioner of oaths may not act in a dual capacity as witness, for
witnesses are required to attest and sign the will in the presence of the
commissioner. In these circumstances, therefore, four persons are required to
sign in order to validly execute the will: the two witnesses, the testator placing a
mark (or person signing on behalf of the testator) and the commissioner.
However, there appears to be no reason why an instructing attorney who drafts
a will cannot also commission it.

50. Witnesses

Two witnesses are required for the valid execution of a will. The witnesses
must be at least fourteen years of age—recall that a testator must be at least
sixteen to execute his own will—and must be competent to give evidence in
a court of law. In terms of section 4A of the Wills Act, a witness to a will and
the witness’ spouse cannot take any benefit under the will. The witnesses are
required only to sign the last page.

51. Condonation

The courts are vested with the power to condone a will that does not comply
strictly with the formalities discussed above. In this regard, section 2(3) of the
Wills Act states that

if a court is satisfied that a document or the amendment of a document drafted

or executed by a person who has died since the drafting or execution thereof,
was intended to be his will or an amendment of his will, the court shall order

65
the Master to accept that document, or that document as amended, for the
purposes

66
of the Administration of Estates Act, as a will, although it does not comply with
all the formalities for the execution or amendment of wills referred to in
subsection (1).

In other words, a court may order that a document which has not been executed
in strict compliance with the will-making formalities is nevertheless to be
treated as if it were a valid will. The court has the power to make an order of
[54]
validity to avoid frustrating the will of the testator. This does not mean that
there is a general discretion vested in the courts to condone non-compliance
with formalities. To obtain such an order, it is essential to prove

 that the document was personally drafted by the testator, or personally

executed by the testator;
 that the testator has died since the drafting or execution of the document
in question; and
 that the testator intended the document to be his will or an amendment
thereof.

If the court is of this opinion, it may order the Master to accept the document as
the testator’s will, even though it does not comply with “all” the required
formalities, but the court must be absolutely sure. This power is utilised
[55][56][57][58]
sparingly.

Although, therefore, an electronic will, stored on a computer hard drive, for

example, which has not been printed or executed, is invalid due to the fact that
as it is not in writing nor validly executed, it can be saved by section 2(3). In
[5 9 ]
Van der Merwe v Master of the High Court, an appeal was brought to
have an unsigned document accepted as the will of the deceased. The court
noted that the lack of a signature had never, in terms of section 2(3), been held

66
to be a complete bar to a document being declared a will. The court considered
whether

67
the document was drafted by the deceased, and whether the deceased intended it
to be his will. The appellant provided proof that the document had been sent to
him by the deceased, giving the document an authentic quality. It was not
contested that the document still existed and had not been amended or deleted.
From the title of the document, the court held it to be clear that the deceased
intended the document to be his will. The court upheld the appeal, declaring the
will to be valid.

Despite the existence of section 2(3), it remains vital for wills to be properly
executed in accordance with the requirements of section 2(1), because the
lengthy delays and financial expense involved in obtaining a court order that a
defective document be treated as a will can be disastrous for the testator’s
family. In addition, it may not always be possible to satisfy the requirements
for such an order, even when the testator’s intentions can be clearly established.

52. Invalid wills

There are five ways in which a will can be rendered

invalid:

1. The will is not executed in compliance with formalities. (This includes

incompetence of witnesses.)
2. The witnesses or testator do not have the required capacity or animus
testandi at the time of the execution of the will.
3. The testator was unduly influenced, deceived or otherwise forced to make
the will (i.e. the will was not made voluntarily).
4. The will is made dependent on a condition which cannot be fulfilled.
5. The will has been revoked.

67
Improper execution of any one page of a will generally invalidates not only that
page but the entire will. However, if the rest of the will is properly executed
and

68
contains all the essential matter—that is, the whole of the dispositions of the
testator’s property—there is authority to suggest that the defective page may be
expunged and the properly executed pages treated as the complete and valid
will of the testator.

All questions as to the validity of a will must, notwithstanding that the will has
been registered by the Master, be determined by the court. If a will is regular on
the face of it—that is, if it is apparently in proper form and in compliance with
the requirements of the law, and if there is no external sign or mark of any flaw
in it—it is presumed to be valid; hence, if it is sought to establish the invalidity
of the will, the onus of proving the cause or reason of the invalidity is upon the
person endeavouring to set aside the will. This rule as to the onus of proof is
applied whether the will is attacked on the ground of non-compliance with the
formalities required by law, or of forgery, or of undue influence, or of
incapacity of the testator, such as his insanity.

Where an action is brought to have a will declared invalid, the executor and all
the beneficiaries under the will must be joined as defendants in the action.
Where the facts are not in dispute, and where there is no danger of collusion, an
order may be granted by way of application and on affidavit.

53. Revocation

When a testator executes a document in accordance with the formalities for a

will, the document remains in existence as the testator’s will until such time as
the testator

 decides to revoke it; or

 manifests this revocatory intention in one of the recognised acts of
revocation.
Even a document which does not comply with the execution formalities, but
which was intended by the testator to be his will, must be revoked by the
testator in one of the recognised ways to avoid the possibility that a court may
make an order in terms of section 2(3) directing that the document be accepted
as the testator’s will.

If the testator intends to revoke his or her will but does not carry out one of the
recognised acts of revocation, a court can make an order in terms of section 2A
revoking the will for the testator if there is proof of the testator’s revocatory
intention, provided that the requirements of section 2A are satisfied.

The requirements for a court to intervene in terms of section 2A are different

from those which apply in terms of section 2(3). The issue of whether or not
section 2A can be applied in circumstances where the testator revokes a portion
of his or her will and simultaneously introduces new testamentary provisions in
place of the revoked provisions is problematic.

54. Right of revocation

A testator may revoke his will at any time, even if he or she has expressly
agreed not to do so. There are two exceptions to this rule.

1. The first exception occurs in the case of a joint will, in which the testators
have “massed” their property. If, after the death of one of the testators,
the survivor has accepted benefits under the joint will, he or she cannot
revoke his or her portion of the joint will.
2. The other exception arises in the case where certain forms of pacta
successoria are embodied in antenuptial contracts. Some of these
dispositions may never be revoked even if both husband and wife desire
to do so.
55. Manner

At common law, the modes of revocation were not altogether clear. Generally,
it was agreed that a testator could revoke his will

 by concluding a later will or codicil;

 by destroying the will; or,
 in so far as a legacy in a will is concerned, by ademption.

However, section 2A of the Wills Act allows the court to condone an act of
revocation if the court is satisfied that the testator intended to revoke his will or
part of it, even though the will was not revoked in one of the ways recognised
by the common law. It would seem, however, that a will cannot be revoked by
virtue of an oral statement made by the testator even if made before a number of
witnesses.

56. Later will or codicil

A will can be revoked by a subsequent valid will or by a codicil. A codicil is a

supplement to a will: a testamentary instrument intended to alter an already
executed will. Later wills are obviously the later wills in a series of wills
executed by the same person. A valid will loses all legal force and effect—that
is, its validity—if it is revoked by the testator before his death. In revoking a
previous will, the testator must intend to revoke the previous will; if
accidentally done, the revocation is not effective.

A will can also be revoked by an antenuptial contract; likewise, provisions in an

antenuptial contract may be revoked by a subsequent will, provided, of course,
that the surviving spouse adiates thereunder.
A revocation may be express, by virtue of a clause known as a revocatory
clause, or implied from the fact of provisions in the later will being inconsistent
with those in the former. When certain dispositions in the two wills are
inconsistent with each other, those in the earlier will are revoked. It follows
that, if the two wills are entirely inconsistent, the earlier will is completely
revoked. Where, however, it is possible to reconcile the provisions in both
wills, such reconciliation should be made. A revocation is effected the
moment the revoking will is duly executed.

57. Physical or symbolic destruction

The physical or symbolic destruction of a will constitutes revocation and

[60][61]
renders it invalid. A will may be completely revoked by the testator’s
destruction of it: for example, by burning it, or by cutting it into pieces, or by
defacing it, or by cancelling it, or by erasing his signature—provided that the
act is in each case done with the intention of revoking the will. Deletion of an
entire will is an act of destruction that constitutes revocation, and is thus
governed by the common law, but a deletion of a portion of a will, by and large,
amounts to an amendment and consequently has to comply with certain
prescribed formalities.

The destruction of a copy of a will does not normally constitute an effective

revocation, but the destruction of a duplicate original revokes both it and the
other duplicate original (filed usually with a third party). The partial revocation
of a will by means of a deletion or alteration is regulated by the Wills Act.

If, on the death of a person, his original will, or a duplicate original will, cannot
be found, but it is proved to have been in his possession, a presumption arises
that it was destroyed by the testator with the intention of revoking it. This
presumption may, of course, be rebutted: for example,
  by satisfactory evidence that the will has been mislaid or had been
inadvertently destroyed; or
 where the testator destroys his or her will in the mistaken belief that it
had been revoked by a later will, and this later will turns out to be
invalid;

but not by the fact that a duplicate original of the will is found in the possession
of a firm of attorneys.

58. Ademption

Ademption arises where the testator leaves a legacy in a will, and thereafter, in
his lifetime, voluntarily alienates the subject matter of the legacy, as when
Rodney bequeaths a farm to Shaun, and then sells or donates it. If this happens,
the legacy is regarded as having been tacitly revoked, or “adeemed,” as it has
lapsed by ademption.

If, however, the alienation is not voluntary—if, that is, the testator parts with
the thing or its possession out of necessity—ademption does not take place.
Such would be the case where Rodney is forced to sell the farm to settle a
judgment
[62]
debt.

59. Other means of revocation

Section 2A of the Wills Act contemplates the revocation of a will by means

other than those recognised at common law. The section permits a court to
declare a will revoked where the testator has, intending thereby to revoke the
will or part thereof,
 made a written indication on his will, or before death caused such
indication to be made;
  performed any other act with regard to his will, or before death caused
such act to be performed which is apparent from the face of the will; or
 drafted another document, or before death caused such document to be
drafted.

The relationship between section 2A and section 2(3) of the Wills Act is not
altogether clear. It seems inescapable, however, that section 2A must be
interpreted against the backdrop of s 2(3).

60. Divorce or annulment of marriage

Section 2B of the Wills Act states that, if there is an existing will between
spouses whose marriage is later dissolved by divorce or annulment, and if
either spouse dies within three months of the date of the divorce, no benefit
under the will is accorded to the ex-spouse. In other words, if a testator dies
within three months after his or her marriage was dissolved, and the will
was executed before the dissolution, the estate will be distributed in
accordance with the provisions of the will, but as if the previous spouse had
died before the dissolution of the marriage—unless it appears from the will that
the testator had intended to benefit the spouse despite the dissolution of their
marriage.

The rationale for this rule is to give spouses who divorce a three-month period
to change their wills.

61. Exceptions to the general rule that a will can be revoked

In ante-nuptial contracts, duly registered in the Deeds Registry, it is possible to

include provisions for the devolution of the spouses’ estates. Parties to such a
contract may not unilaterally make a will that conflicts with the ante-nuptial
contract. If there has been a massing (where a joint will is drawn up between
two or more people who mass their estates into one common pool) and the
survivor adiates (i.e. accepts the terms of the will), the survivor will receive an
interest in the estate, e.g. a usufruct or fideicommissium. When the survivor
dies, the property will then devolve. Note that the surviving spouse cannot
unilaterally devolve his or her estate in terms of another will.

62. Revival of a revoked will

Although the matter is not free from doubt, the better view is that a will which
has been revoked by the testator, but which is actually still in existence, may be
revived by the testator by means of a subsequent reviving document, without
the necessity of re-executing the original will. In light of the condonation
provisions contained in section 2(3) of the Wills Act, it seems that it is no
longer necessary for the will or the reviving document to be properly executed;
a court may condone these documents if the requirements of the section are met.

Where, however, the will has been revoked by destruction, it cannot be revived.
The revocation of a will which itself revoked an earlier will does not have the
effect of reviving the earlier will; to achieve that end, re-execution is necessary.

63. Alteration or variation

It is possible to alter or vary a valid will at any time after the will is executed. It
is preferable merely to execute an entirely new will, but such an amendment is
possible.

63.1 Amendment by testator

A testator may amend a will at any time prior to death. Any limitation of the
power to amend is generally unenforceable. In the case of a will executed on or
after January 1, 1954, which the testator amended on or after October 1, 1992,
the amendment (including a deletion, addition, alteration or interlineation),
made after the will is executed, is valid only if

 the amendment is identified by the signature of the testator or of a proxy

(who must sign in the testator’s presence and by the testator’s direction);
 the signature is made by the testator or by a proxy, or is acknowledged by
the testator and, if made by a proxy, also by the proxy in the presence of
two or more witnesses as set out above;
 the amendment is identified by the signatures of the witnesses in the
presence of the testator and of each other, and, if the amendment has
been identified by the signature of a proxy, also in the presence of the
proxy; and,
 where the amendment is identified by mark, or by the signature of a
proxy, a commissioner of oaths certifies on the will that he has satisfied
himself as to the identity of the testator and that the amendment has been
made by or at the request of the testator.

Section 2(1)(b) of the Wills Act states that all the requirements for the
execution of a valid will are required also for the execution of a valid
amendment. There is a rebuttable presumption in section 2(2) of the Wills Act
that any amendment to a will took place after the execution of the will.

In all instances where an amendment is identified in the presence of a

commissioner, the certificate must be made as soon as possible after the
amendment has been identified. If the testator dies after the amendment is
identified, but before the commissioner has made the certificate, the
commissioner must as soon as possible thereafter make the certificate.
63.2 Rectification by court

It is important to note the distinction between rectification and

alteration:

 Rectification occurs in circumstances where the court corrects any error

in the will.
 Alteration occurs where the court alters any provision of the will.

The need for rectification arises when the will does not correctly represent the
testator’s intention, due to some mistake of the testator or of the person who
drafted the will.

The court will rectify a will in the following

circumstances:

 where there is a request to correct a clerical error or description (as when,

[63]
for example, the plot number of the land bequeathed is incorrect);
[64]
 where there is a request to delete words or provisions included in error;
and
 where there is a request to insert words or provisions excluded in error.
This is the most difficult circumstance for the court to pronounce on, as it
[65][66]
requires a thorough exploration of the testator’s intention.

The court must be satisfied, on a balance of probabilities, that the will does not
express the true intention of the testator, and that there is reliable evidence to
show what his intention was.

63.3 Alteration or variation by the court

Where the wording of the will clearly and unambiguously reflects the intention
of the testator, however, the position is otherwise, for the court will not as a
general rule vary the terms of a will which can be carried out and are not illegal
or contrary to public policy, unless authorized by statute to do so. The general
rule is that the courts are very reluctant to alter a will. Nevertheless, the court
does have a discretion, albeit a very limited one, to order a variation in truly
exceptional cases, such as where there has been an unforeseen change of
circumstances since the death of the testator, rendering the fulfilment of his
directions practically impossible or utterly unreasonable, or which “threatens to
[67]
make a shipwreck of the testator’s intention.”

On change in circumstances, and where the execution of the will is impossible

or unreasonable, see Ex Parte Sidelsky.

Incorrect assumptions by the testator in this context refer to those regarding his
[68]
assets and liabilities.

Where strict execution would result in the failure of the bequest or the
frustration of the testator's intention, see Ex Parte McDonald.

Where the will is to be altered or varied out of necessity, see Ex

Parte
Douallier.

Where the will is to be altered or varied because the manner of execution is not
possible or would result in serious loss, see Ex Parte Dittmarn.

63.4 Incorporation by reference

Since all the pages of a will must be executed in compliance with the necessary
formalities, a testator may not incorporate into a will, by reference, terms of a
separate document, whether or not that document has been formally executed.
The question of incorporation arises only when the document referred to
contains matters that form an integral part of the will. To be complete and
effective, a testamentary disposition must identify
 the property bequeathed;
  the extent of the interest bequeathed; and
 the beneficiary.

Where one of these essential matters is left to a separate, unattested document,

the disposition fails.

Where, however, the document in question contains merely incidental matters,

it is not an essential part of the disposition or the will; the question of
incorporation does not arise at all. Such a document may nonetheless be
referred to as part of the “surrounding circumstances” in order to construe or
apply the terms of the will. The effect of section 2(3) of the Wills Act, dealing
with condonation (discussed above), on the incorporation-by-reference rule is
open to discussion.

63.5 Obsolete and provincial wills

Prior to 1954, wills were regulated by a number of provincial statutes in

addition to the common law. The law prior to 1954 is still relevant to wills
executed before that date.

A remnant of the common law, in the form of the soldier’s will, survived until
1992, when it was rendered obsolete by the Law of Succession Amendment
Act.

63.6 Joint or mutual wills

A will may be executed in one document by two persons, in which case it is

termed a joint or mutual will. The two persons are usually spouses married in
community of property, but they may be spouses married out of community, or
may not be married to each other, as in the case of two sisters.

78
No additional formalities or witnesses are required for the execution of a
mutual will. Where, however, the will confers reciprocal benefits on the
testators, it is advisable that the will be not written by either of them: If the
writer is the survivor, the rule applies that a person can take no benefit under a
will written by himself. For the survivor to benefit under the will in such a
case, either a court must condone the will, or there must be proof of
confirmation of the disposition by the first-dying, either by his writing on the
will or by other satisfactory evidence.

Notwithstanding its form, a joint will is simply two separate wills embodied for
convenience in one document. Usually the dispositions by each testator relate to
his or her own property, or where the testators are married in community of
property, to his or her half share of the joint property: for example, where each
of the testators appoints the other as heir, or as heir together with the children
of the marriage.

Sometimes, again, a joint will is in fact the will of the first-dying only: for
example, where the will appoints the survivor of the testators as sole heir of the
first-dying, or as heir together with the children. In these cases, the portion of
the will relating to the dispositions by the first-dying is not binding on the
survivor, and the latter may revoke his or her portion of the will. But if, in
addition, there is a disposition of the joint estate of the testators, or of a portion
of it, giving the survivor a limited interest in the property, and disposing of such
property after his or her death to other persons, the will is said to effect a
“massing” of the estate, and is binding on the survivor if he or she accepts any
benefits under the disposition.
64. Probate of wills

Every person who is in possession of a will of a deceased must send the will to
the Master, who registers it in a register of estates. This registration is termed
“granting probate of the will.”

65. Lost wills

Where a will has been lost or destroyed, but a copy or draft is in existence, the
court, if satisfied that the testator did not intend to revoke the will, may
authorise the Master to grant probate of it.

If no copy of the will is available, its contents may be proved by oral evidence,
provided that such evidence is very clear and specific. Where, therefore, it was
proved that a husband and wife had signed a joint will which was left with their
attorney for safe keeping, and that, after the death of the husband, the will could
not be found (the probabilities being that the will had been lost or destroyed in
the attorney’s office and not removed by either of the testators), the court held
that the will was valid; it adopted a reconstructed will.

66. Content of wills

A South African testator has almost unlimited freedom of testation and may
stipulate in his or her will whatever he or she wishes. As a result, the contents
of wills may vary greatly.

The main provisions in wills are those which dispose of the property of the
testator to a person or persons. Subsidiary provisions regulate the distribution of
the estate by appointing executors to liquidate and to distribute the property in
the estate, and where necessary by appointing administrators to manage the
property, and guardians or tutors to minors and their property.
In the simplest possible form of will, the testator simply bequeaths all property
to a named person. On the death of the testator, that person, if alive when the
testator dies, becomes the heir, and has a vested claim to the ownership of all
the testator’s property, subject to payment of the debts. In this case, there is no
difficulty as to the identity of the beneficiary, or the identity of the property
disposed of, or the nature of the interest granted in such property.

Wills, however, are not always so simply worded; they may, and usually do,
contain provisions of a more complex nature. There may, for example, be more
than one beneficiary. Instead of being named, beneficiaries may be identified
by some description, such as “my children” or “my surviving children.” Instead
being described as an aggregate (“my estate”), particular items of property may
be specified, such as a farm or a motor car. Finally, the interest disposed of in
the property may be

 less than ownership, such as a usufruct;

 a resolutive ownership, such as a fiduciary interest; or
 a suspensive or contingent interest, such as a fideicommissary interest.

The effect of these testamentary devices is that the same thing may be given to
more than one person, either concurrently or alternatively or successively. In
order to appreciate the effect of these “comprehensive and elastic provisions of
[69]
our law,” it is necessary to know the difference between inheritance and
legacy, between ownership and usufruct, and between vested, future and
conditional interests.

67. Inheritance and legacy

There is a particularly important distinction to made between legacies and

inheritances. This distinction plays an important role in the final distribution of

81
an estate. The estate of a deceased person is distributed by the executor by first
paying the debts, then handing over the legacies and prelegacies, and finally
giving the balance to the heir or heirs.

A legacy is a disposition in a will, to a person termed the “legatee,” of things

which are described either specifically or generally. A specific legacy is one
of

 a specified thing, such as a farm, a motor car or a particular debt owed to

the testator; or
 a specified collection of things, such as a library or a flock of sheep.

A general legacy is a disposition of a class of things described as a rule by

number or quantity, such as a thousand sheep, or R1,000. It would seem to
follow that a legacy of all the money to the credit of the testator in a particular
bank is a specific legacy.

When a legacy fails because the legatee does not want to or cannot inherit his
or her benefit (for example, he or she repudiated the legacy or he or she dies
before the testator), there are three possibilities:

 a substitute may be provided for in the will or ex lege;

 accrual may take place; or
 the bequest may fall into the residue of the estate and will be inherited by
the residuary heirs.

Should a legacy fail, and the testator has not appointed a substitute, or accrual is
not possible, the legacy will form part of the residue of the estate, or will form
part of the intestate estate to be inherited by the intestate beneficiaries.
A prelegacy is a legacy which is left to an heir in priority to the other heirs,
and in addition to any other share of the inheritance which the heir may be
entitled to receive.

An inheritance is a disposition in a will, to a person termed the heir, of the

residue of the estate, after the debts, legacies and prelegacies have been
satisfied. It follows that the heir is in effect a residuary legatee. There may be
more than one heir, in which case the shares left to them may be specified to be
equal or unequal.

The institution of an heir or heirs is not today essential for the validity of a will.
If the will, however, appoints only legatees, and if there is a balance left over
after the debts and legacies have been paid or satisfied, there is an intestacy as
to such balance. It follows that a person can die partly testate and partly
intestate, although there is a presumption in favour of testacy.

An heir may be appointed as from a certain date or event, or until a certain date
or event.

The chief difference between the laws relating to inheritance and to legacy
arises from the fact that,

 in the case of a legacy, specified or particular property is left; whereas,

 in the case of an inheritance, the property is not specified, but consists of
such property as happens to belong to the testator, or a fractional portion
of such property.

It follows that, if the testator bequeaths specified property which does not in
fact belong solely to him, problems arise which are not met with in inheritance.
68. Prior and legal rights

[70] [71]
The Roman-Dut ch notions of legitimate portion and lex hac edictali in
testamentary succession were abolished at the turn of the 20th century under the
influence of English law. Similarly, South Africa did not adopt the family
provision and dependants’ relief of English law under the Inheritance
(Provision
[72]
for Family and Dependents) Act 1975.

69. Vested, conditional and future interests

An interest or benefit under a will may, on the death of the testator, either vest
in the beneficiary immediately, or be contingent upon the fulfilment of some
condition. If vested, it may be enjoyable presently, or in the future only.

70. Vested interests

A vested interest refers to an inheritance right which has become

unconditionally fixed and established in the beneficiary, with the result that it
forms an asset in the beneficiary’s estate; it may be disposed of by him or her
inter vivos or mortis causa; and it is normally transmissible to the beneficiary’s
heirs on his death (unless the right is purely personal to the beneficiary, such as
a usufruct).

The terms dies cedit and dies venit are very important when dealing with
vesting of rights.

 The phrase used to indicate that a right has vested is “dies cedit,” which
indicates that the day or time has come when the right is due or owing.
 Another phrase, “dies venit,” denotes that the time for enjoyment of the
thing has arrived; that is to say, that the possession and use of the thing
may be claimed.
If the right has vested, but its enjoyment is postponed to the future, there is dies
cedit but not dies venit. The time for enjoyment can, of course, arrive only after
or simultaneously with vesting. When it does arrive, there is both dies cedit and
dies venit. If there has been no vesting it follows that dies nec cedit nec venit.

71. Conditional interests

The question of whether, on the death of the testator, an interest under a will is
conditional or vested, or vested but not immediately enjoyable, depends entirely
on the intention of the testator. This intention is gathered from the language of
the will. A testator may postpone dies cedit or dies venit, or both, by means of
conditions or time clauses (terms), and may make a specific benefit dependent
on a condition, or may link it to a term or period of time.

Suppose that the testator leaves an interest subject to a condition. A condition is

a provision that, on the occurrence or non-occurrence of some uncertain future
event, a right shall either be conferred or be discharged. There must be
uncertainty as to the event, either because it may never happen, or because,
although it must happen, it may not happen before some other specified event,
such as the death of a particular person, takes place. For example, the testator
may leave a sum of money to Helen “if she attains the age of 21,” or “if Helen
becomes Mayor of Cape Town.”

The most common form of condition found in wills is “if A survives B” (B

being some specified or determinable person). The effect of an interest being
left conditionally is that it vests, dies cedit, only when the condition has been
fulfilled. Prior to the fulfilment of the condition, there has been no dies cedit (or
dies venit), and the beneficiary acquires merely a contingent right to the benefit.
Suppose, then, that the testator leaves “R1,000 to my son if and when he attains
the age of 21.” Upon the death of the testator, and if the son is alive but under
twenty-one, he acquires no vested interest. Consequently, if he dies before
reaching that age, nothing is transmissible to his heirs. If, however, he attains
the age of 21 dies cedit, and the legacy thereupon vests in him. The same
principles are applicable where an interest is left “to Armand and upon his
death after the testator to Lara.” Lara acquires a vested interest only if she
survives both the testator and Armand.

The conditions mentioned above are suspensive. A resolutive condition also

may be attached to an interest: for example, where a usufruct is left to a widow
“provided our children continue to reside with her.” In such a case, the usufruct
vests in the widow on the testator’s death, but not absolutely for her lifetime; on
the fulfilment of the resolutive condition, a divesting takes place.

There is a distinction, then, between suspensive and resolutive conditions, with

regard to their influence on dies cedit and dies venit. There is also a distinction
between suspensive and resolutive time clauses with regard to their influence
on dies cedit and dies venit.

 Suspensive conditions: The right does not vest in the beneficiary until
the condition is fulfilled. For example, X bequeaths his farm to Y on
condition that Y obtains an LLB degree. If Y does not get an LLB degree,
he will never obtain a right to the farm.
 Resolutive conditions: The bequest terminates on the fulfilment of the
condition. For example, A bequeaths his farm to B. If B remarries, the
farm will devolve on C. Thus B has a vested right to the farm until
fulfilment of the condition.
72. Future interests

The nature of an interest which is vested but not enjoyable, as opposed to one
which is both vested and enjoyable, is well illustrated by the case of a legacy by
the testator of “a sum of money to my daughter, payable on her attaining the age
of 25 years.” In such a case, the legacy is generally not conditional upon the
daughter’s attaining the age of 25, but the enjoyment of it merely is postponed.
It follows that, on the death of the testator if the daughter is alive, dies cedit
occurs, and the legacy vests in her, but dies venit only occurs when she reaches
the age of twenty-five. If the daughter dies before reaching twenty-five, her
right to the legacy passes to her heirs.

An example of a similar disposition is where the testator leaves “my estate to

my children, the division not to take place until the death of their mother.” No
condition is imposed as to the children acquiring their shares, but their
enjoyment merely is postponed. The death of the mother is an event which is
certain to occur. It fixes the time for the division and enjoyment by the children
of their shares. Upon the death of the testator, dies cedit as far as the interests of
the children are concerned, but dies venit only when the death of the mother
occurs. If one of the children dies before the mother, his share vests in such
child’s own estate.

A similar disposition is the following one in a mutual will: “The estate is

bequeathed to our children, but the survivor of us is to have the possession, the
children to have no right to their portions until the death of the survivor.”

73. Valid and invalid conditions

Under the common law, it is common to say that, if anyone attacks the validity
of a will, he will lose all bequests in terms of the will. Thus conditions
excluding the jurisdiction of the court were considered valid. The case of
Barclays Bank v Anderson changed this.

[73]
Conditions which are impossible to carry out are invalid.

Conditions regarding the insolvency of the beneficiary are valid. It is common

to provide that, if the beneficiary becomes insolvent, the bequest lapses;
[74]
accordingly, the bequest will not form part of the insolvent estate.

 Nudum praeceptum

If a testator places a prohibition on a bequest but fails to say what should

happen with the bequest if the prohibition is contravened, it is said that the
prohibition is nude (nudum praeceptum). In other words, the prohibition is of no
effect, and the beneficiary will receive the bequest free from any prohibitions.

74. Estate massing

Estate massing takes place when two or more testators combine or mass the
whole or parts of their estates into one consolidated unit and then dispose of it
in terms of their mutual will:

In the case of common-law estate massing, a real right is transferred to the

[7 5 ]
survivor. In the case of statutory estate massing, a limited right is
transferred to the survivor.

Since estate massing places a burden on the survivor, the doctrine of election
comes into play. The survivor has to adiate or repudiate the massing before
there can be any legal consequences.
75. Customary law

The same principles are applicable to testators living under a system of

customary law.

76. Testamentary devices

We have dealt thus far with the differences between conditional, vested and
future interests, since these distinctions must be known before we can
appreciate the effect of the various types of dispositions in wills which dispose
of interests of a more complicated nature than a simple and unconditional
institution of heirs or of legatees.

A testator frequently does not dispose of the full ownership of his assets to any
one or more persons, particularly in the case of landed property; he grants
interests in the property less than full ownership, such as

 usufruct;
 successive interests, known as fideicommissary substitutions; or
 interests in the alternative, known as direct substitutions.

These various interests will be treated first; thereafter combinations of the

various interests.

 Usufruct

A usufruct, which is often confused with the fideicommissum, essentially forms

part of the law of property, although it is often used in wills. A testator
bequeaths the property rights to one person (the dominus or remainderman), but
the right to use, enjoy and take the fruits of the property to another (the
usufructuary). In other words, instead of leaving the full ownership of the
estate, or of a specified thing, to one person, the testator may leave the
ownership to
one person, subject to a usufruct in favour of another person. For example, the
testator leaves “my farm to A subject to a life usufruct in favour of B.” On the
testator’s death, both of these interests vest, the usufruct in B, and the
remaining rights of ownership in A.

There are consequently two concurrent vested interests belonging to different

persons in the same thing, the one enjoyable presently and the other in the
future only. B’s interest, the right to use the farm and to take its fruits, endures
until B’s death, whereupon it is extinguished; consequently B’s heirs or
successors acquire no rights in the farm. On B’s death, A (if alive) becomes
absolute owner of the farm. If A dies before B, that fact makes no difference to
B’s rights, for B’s usufruct continues until his own death. A’s ownership,
subject to B’s usufruct, passes to A’s heirs or successors, who are bound by the
usufruct until B dies.

 Substitution

The testator may substitute one beneficiary for another, giving an interest to
Arthur which in certain circumstances is to go to Boucher instead. There are
two kinds of substitutions:

 direct (or vulgar) substitutions; and

 fideicommissary substitutions.

These are distinguished by the fact that

 in the case of direct substitution, an interest is conferred in the alternative

upon one of two persons; while
 in the case of fideicommissary substitution, an interest is conferred
successively on two persons, one receiving it after the other.
Substitution, in other words, occurs when a testator appoints a beneficiary to
inherit a benefit, but at the same time nominates another beneficiary to take the
place of the appointed beneficiary (legatee or heir) upon the occurrence of an
event, usually the death of the appointed beneficiary.

 Direct substitution

Direct substitution can be created by the testator himself, or can operate by law
(ex lege) in terms of section 2C of the Wills Act. In the case of direct
substitution, an interest in property is left to one person (whether as heir or as
legatee), subject to the condition that, if for some reason or other the interest
does not vest in him, it is to go to another person. The reason usually specified
is the death of the first-mentioned person, if it takes place prior to the death of
the testator. It may also be some other reason, such as the first person’s
repudiation of the interest, or that person’s being unable to succeed to the
benefit.

Suppose, for example, that the testator leaves “my farm to Tim, but if Tim has
predeceased me, it is to go to Cameron.” On the testator’s death, if Tim is alive,
the farm vests absolutely in Tim, and Cameron’s interest is entirely
extinguished. If, on the other hand, Tim dies before the testator, Tim’s interest
is extinguished. Consequently, Tim’s heirs or successors acquire no rights; if,
in that case, if Cameron is still alive when the testator dies, the farm vests
absolutely in Cameron. It is important to note that the interest goes to one or
other of the beneficiaries mentioned, not to both of them; it is, as noted above, a
case of conferral in the alternative.

A direct substitution will not be implied unless it is clear, as a matter of

“necessary implication,” that the testator so intended in respect of an event
actually contemplated by the testator. But a form of implied direct substitution
has been created by statute: Whenever a predeceased descendant of the testator
would have become entitled, if he had survived the testator, to any benefit under
the will of the testator, the descendants of that descendant are be entitled to take
that benefit per stirpes, unless the terms of the will indicate a contrary intention.

 Fideicommissary substitution

A substitution is fideicommissary when an interest is given to one person

(whether as an heir or as a legatee), subject to the passing of the interest to
another person on the fulfilment of a condition. The person to whom the
interest is first given is termed the “fiduciary;” the person who is substituted
for him on the fulfilment of the condition, the “fideicommissary;” and
the whole disposition, a “fideicommissum.” A fideicommissum may be
defined, then, as the grant of an interest in property to one person, subject
to the interest’s passing to another person on the happening of a condition.

A simple form of fideicommissum is constituted where the testator leaves “my

farm (or estate) to Stuart, and on Stuart’s death, after me, it is to go to Luke.”
The legal effect of this disposition is that, on the testator’s death, if Stuart is
then alive, the dominium of the farm vests in Stuart, subject to Luke’s interest,
which is as follows: Luke acquires no vested interest in the farm, only a
contingent right, for Luke’s interest vests only if and when the condition is
fulfilled—in this case, if Luke is alive when Stuart dies, in which event the
fideicommissum terminates and the absolute ownership vests in Luke.

If Luke dies before Stuart, the condition of the fideicommissum fails, Luke’s
rights are extinguished, and there is nothing to transmit to Luke’s estate or
successors (unless there is a clear indication in the will to the contrary). Stuart’s
fiduciary interest is then increased into full dominium.
If Stuart dies before the testator, then, under the old law, the fideicommissum
failed, and Luke obtained no rights whatever on the death of the testator. This
rule, however, has been abrogated, with the result that now, on the testator’s
death, Luke (assuming that he is alive) acquires the full dominium, for he
succeeds directly to the testator, the fiduciary interest having fallen away.

It will be seen that a fideicommissum confers successive interests in the same

property on two persons. The first interest vests (as a rule) on the death of the
testator; the second (being conditional) vests only if and when the condition is
fulfilled.

Fideicommissary substitution can be created expressly or impliedly. With

regard to an implied fideicommissum, the so-called si sine liberis (meaning "if
you die without children") clause is important; so, too, the legal position of the
parties to a fideicommissum.

The nature of a fideicommissum is burdensome, since it limits the ownership

of the fiduciary. It is not favoured in South African common law. A
presumption against fideicommissa exists, but only where there is doubt as to
whether a testator intended direct or fideicommissary substitution.

77. Difference between usufruct and

fideicommissum

These two interests are similar in some respects, but they differ in others. They
are very much alike, in that both a usufructuary and a fiduciary have the use
and the enjoyment of the property for their lifetime; they differ in that,
whereas a usufructuary can never automatically acquire any greater right in the
property, a fiduciary’s right may in his or her lifetime ripen into absolute
ownership (if, for example, the fideicommissary dies before him).
The rights of the other person concerned in each case in these dispositions, the
residuary owner and the fideicommissary respectively, naturally differ very
considerably. In the case of a usufruct, the owner of the property has a vested
right, although the owner’s enjoyment is postponed, whereas the right of a
fideicommissary is not vested, but rather contingent upon fulfilment of the
fideicommissary condition.

It is frequently difficult to ascertain from a will which of these interests a

testator intended to grant. The law reports contain numerous instances of the
courts’ being requested to interpret wills where one party contends that the
interest is usufructuary and the other claims that it is fiduciary. The actual
decisions in these cases depend on whether the testator intended to grant the
“remainder man,” the person who is to have the later enjoyment of the property,
a vested or a conditional right.

In addition to the ordinary form of fideicommissum described above, two

peculiar forms are recognized by the law, a fideicommissum residui and a
fideicommissum purum.

78. Fideicommissum residui

The fideicommissum residui is a form of fideicommissum which constitutes an

exception to the general rule that the fiduciary may not alienate the
fideicommissary property. It is a fideicommissum of the residue or balance of
the property left at the death of the fiduciary. Property is bequeathed to a
fiduciary on condition that, on his or her death, whatever is left of the property
is to go to another person.

The legal effect of such a disposition is that, by virtue of a rule of the Roman
law, still in force in South Africa, the fiduciary is prima facie entitled in his or
her lifetime to alienate or dispose of three-quarters of the property, but not
more. Consequently, the fiduciary is only bound to transmit one-fourth of the
property to the fideicommissary. If, however, the fiduciary gives security for
restitution of one-quarter of the estate, the fiduciary may alienate the whole of
the estate.

The fiduciary may not dispose of any of the property either by means of a
donatio mortis causa, or by will. It follows that the fideicommissary may claim
all of the property originally granted to the fiduciary that remains in the estate
of the fiduciary upon the latter’s death, even if it is more than a quarter of the
original property. It would seem that, if the property remaining over has
actually increased in amount or value, the fideicommissary may claim all of it
on the principle that the person who bears the loss is entitled to the profits.

79. Fideicommissum purum

This was the original form of fideicommissum in Roman law, introduced to

evade the technicalities and restrictions of the ordinary law of inheritance and
legacy. It was a bequest to an heir or legatee (the fiduciary) with an instruction
to hand over the bequest to a third party (the fideicommissary) who was
otherwise disqualified from taking.

The interests of both the fiduciary and the fideicommissary vested immediately
on the death of the testator, and were therefore simultaneous and coextensive
rather than successive. The interest of the fiduciary was not a beneficial one; it
was purely transitory, as the fiduciary was under an immediate and continuous
duty to hand the bequest to the fideicommissary.

Later, other forms of unconditional fideicommissa came to be recognised, such

as the fideicommissum in diem and the fideicommissum sub modo. With the
gradual assimilation of the rules relating to fideicommissa and legacies, the
fideicommissum purum lost its original purpose. Its application in Roman-
Dutch law was apparently extremely rare.

In Estate Kemp v McDonald’s Trustee, however, Innes CJ used the concept of

fideicommissum purum in an attempt to explain the juristic nature of a
testamentary trust in South African law. Although criticised, this decision was
subsequently followed in numerous cases. The term “fideicommissum purum”
was used to denote generally an unconditional fideicommissum: one without
any condition suspending the vesting of the interest of the fideicommissary.

In Braun v Blann & Botha NNO, however, the Appellate Division ruled that “it
is both historically and jurisprudentially wrong to identify the trust with the
fideicommissum and to equate a trustee to a fiduciary.” Nevertheless, it remains
open to the testator to create an unconditional fideicommissum, such as one sub
certo die: for example, a bequest to A for ten years, and thereafter to B.

80. Trust

A trust may be created by will or by an act inter vivos. A testamentary trust is

constituted when a testator bequeaths property to one person, called a “trustee”
or an “administrator,” with an instruction to administer it for the benefit of
another person or other persons appointed by the will, or for an impersonal
object or purpose (the so-called charitable trust).

The essential feature of a trust is the separation of the ownership or control of

property from the beneficial enjoyment thereof. The trustee acquires no
beneficial interest in the property, acting merely as a conduit pipe in carrying
out the dispositions in favour of the beneficiary. The interest of the beneficiary
in the property may vest immediately on the death of the testator, or at some
later date, depending on the intention of the testator as expressed in the terms of
the will. Statutory provision has been made for the protection of trust property
which is settled upon a person either inter vivos or by will, to be administered
by him or her for the benefit of other persons.

81. Bequests subject to a modus

A clause or provision in a will which imposes on a beneficiary the duty of

employing the proceeds of a bequest for certain specified purposes is termed a
modus. The addition of a modus to a bequest does not make it conditional.
Consequently, the legacy vests in the legatee on the testator’s death; no
fideicommissum is created in favour of the persons intended to be benefited.

The modus has to be distinguished from a condition. The modus can manifest
itself in different forms:

 in the interest of the beneficiary himself;

 in the interest of a specific person; or
 in the interest of an impersonal purpose.

82. Interpretation of some common dispositions in wills

Frequently the language used in a will is not sufficiently clear and

unambiguous for the executor to determine what interests in property are
disposed of, or who the beneficiaries are. In such a case, it is necessary for the
court to interpret the will. As stated before, the cardinal principle in construing
a will is to ascertain from a consideration of it in its entirety the intention of
the testator. In order to ascertain this intention, where the will is ambiguous,
recourse is had to certain presumptions and canons of construction which have
long been accepted in the interpretation of wills. Illustrations are given
below of some of the more
common and important dispositions, in connection with fideicommissa, which
have been the subject of interpretation by the courts.

83. Presumption against fideicommissa

The court, in interpreting wills, leans in favour of an absolute ownership of

property having been bequeathed rather than, as occurs in the case of a
fideicommissum, a burdened ownership.

For instance, whenever a will mentions two persons as beneficiaries of the

same property and there is a reasonable doubt whether the testator intended

 that both of them were to have interests, the one of them to have the
property for life and the other to succeed the first-mentioned beneficiary
on his death (in other words, a fideicommissum); or
 that one or other of them alone should have an interest, the second being
substituted for the first only if the first does not as a fact succeed (in other
words, a direct substitution),

there is a presumption that the disposition is not a fideicommissum, but that it

is a direct substitution.

For example, suppose that the testator leaves “my farm to my son A and on A’s
death to my son B.” It is not clear from these words whether the testator
intended that both A, and B after A, should have an interest in the farm, or
whether only one of them should acquire the farm. Since there is reasonable
doubt as to the intention of the testator, the court will interpret the will as
conferring an absolute ownership in the farm upon one of the sons only, thereby
effecting a direct substitution. This the court does by assuming that the
reference in the will to A’s death meant not A’s death at any time, but only if it
occurred before the death of the testator. It follows that the will is construed as
if it were worded “I leave my farm to my son A, and if A dies before me it is to
go to my son B.”

This presumption arises only if there is a reasonable doubt as to the intention of

the testator. Therefore, if it is shown that the testator contemplated the death of
the first-mentioned beneficiary as taking place not in the testator’s lifetime, but
only after the testator’s death, the presumption does not arise; the disposition is
held to be a fideicommissum. For example, where the testator was fifty-seven
years of age and left a farm to his grandson aged six, subject to the condition
that, if the grandson came to die without lawful descendants, the farm should
revert to the testator’s children, the court held that the intention of the testator
was to create a fideicommissum.

The presumption in favour of a direct substitution does not arise if it is clear

that the testator intended to grant different interests in the same property to two
persons, not alternatively but either successively (as in the case of a
fideicommissum) or concurrently (as in the case where the ownership is left to
one person subject to a usufruct in favour of another); in other words, there is
no presumption that the interest of the beneficiary first mentioned is an
ownership subject to a direct substitution, nor is there a presumption that his
interest is usufructuary and not fiduciary.

84. Si sine liberis decesserit clause

One of the most common conditions inserted in wills regarding property

passing from one person to another is “if the former dies without leaving
children,” si sine liberis decesserit. For example, the testator leaves “my
property to A, and if A dies without children, to B.” If A succeeds to the
property and dies without leaving children, the condition is fulfilled and the

99
property vests in B; but, if A dies, leaving children, the condition is not
fulfilled. The property does not go to

100
B; instead it goes to A’s children, provided they are descendants of the testator
and there are no contrary indications in the will, for in these circumstances a
tacit fideicommissum in favour of the children is implied by law.

The same result is obtained where the si sine liberis condition is not express but
implied. If the fiduciary is a descendant of the testator, and the fideicommissary
is not, then in the absence of a contrary indication in the will the further
condition ‘if the fiduciary die without children’ is implied before the
fideicommissary interest can vest. Such a condition is implied in the case of
fideicommissary substitution only and not in that of direct substitution.

85. Implied fideicommissa

In spite of the fact that there is a presumption against fideicommissa,

nevertheless a fideicommissum is implied by law in favour of particular
persons in the case of certain dispositions. The chief instances are those
where an express fideicommissum is made conditional on a si sine liberis
decesserit clause, and where there is a prohibition against alienation out of a
family.

86. Fideicommissum subject to a si sine liberis

condition

As we have just seen, where a testator leaves property to a fiduciary (A) subject
to the condition (express or implied) that, if A should come to die without issue
(si sine liberis decesserit), the property is to pass over to another person (B, the
fideicommissary), the law implies a tacit fideicommissum in favour of A’s
issue, the liberi, provided that

 the liberi are descendants of the testator; and

 there are not sufficient indications in the will of a contrary intention on
the part of the testator.
It follows that, if these conditions are met, and if A dies leaving children or
remoter descendants, they will inherit the property in preference to B.

87. Prohibitions against alienation

If property is left to an heir on the condition that that the heir shall not alienate
it, but no provision is made for the property passing to any other heir in case of
a breach of the condition, or if no heir is specified or indicated in whose favour
the prohibition is imposed, the prohibition is of no force or effect and is said to
be nudum, for there is no fideicommissary.

If, however, there is a provision that, on a breach of the condition, the property
is to go to a certain heir, there is clearly a fideicommissum in favour of the
mentioned heir, as where the testator leaves “my farm to A, subject to the
condition that he shall not alienate it, and if he does the farm shall go to B.”
Similarly, if a prohibition against alienation is made in favour of a class of
persons, a fideicommissum is implied in favour of such class. For example,
where the testator leaves “my farm to my daughter A, provided that she shall
not alienate the farm out of the family,” a fideicommissum is created in favour
of the testator’s descendants. The class to be favoured must be clearly specified;
otherwise no fideicommissum is constituted.

The question of whether one or more persons or generations are bound as

fiduciaries by a prohibition against alienation depends on whether the
prohibition is unicum (personal) or duplex (real).

If the prohibition is personal, it applies only to the persons prohibited and is

confined to them. They may not alienate the property, but the
fideicommissaries, once they have succeeded to the property, may do so. A
prohibition is personal when it is imposed upon a certain person or persons by
name or as a class, such as “children” (but not “descendants”), as, for example,
where the testator leaves his farm to “my sons A and B,” or “to my sons,” or
“to my children,” and prohibits them from alienating it out of the family. The
restraint is personal to the children only or to the sons only, as the case may be.
On their deaths, when the farm has descended to their heirs, the restraint is
removed and the fideicommissum extinguished.

If, on the other hand, a prohibition is real, it binds all the persons to whom the
property may descend. Not only is the first beneficiary or beneficiaries
prohibited from alienating the property, but also any subsequent beneficiary to
whom it may descend as a result of the fideicommissum. A prohibition is real
when it is clearly the testator’s intention to make it binding on successive or
recurring generations, as when the testator prohibits his “descendants” from
alienating the farm out of the family.

It is, however, enacted by the Immovable Property (Removal or Modification

of Restrictions) Act that, after the commencement of the Act (October 1,
1965), any fideicommissum created in favour of more than two successive
fideicommissaries shall be limited to two, whatever the wording of the will.
Where the fideicommissum was created before the commencement of the Act,
only two successive fideicomrnissaries are permitted from the date of the will.
If, at the date of commencement, two or more fideicommissary substitutions
have already taken place, the fideicommissum shall be terminated at the date of
commencement.

88. Statutory aids to interpretation

The Wills Act contains several provisions that serve as interpretative aids when
construing wills. Unless the context of a will indicates otherwise, when
interpreting a will,
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  an adopted child must be regarded as being born of its adoptive parents,
not of its natural parents;
 the fact that a person was born out of wedlock is not taken into account
when determining his or her relationship with the testator or another
person;
 if a benefit is left to the children of a person or to members of a class of
persons mentioned in a will, it is presumed that the benefit was intended
to vest in the children of the person or in members of the class of persons
who are alive at the time of the devolution of the benefit or who have
already been conceived at that time and who are later born alive.

89. Combinations of various interests

Various interests (usufructuary, fiduciary, or fideicommissary) relating to the

same property may be combined. Each of these interests may be made subject
to direct substitutions. The following are examples of the less complex of these
combinations.

90. Fideicommissum upon fideicommissum

A fideicommissum may be imposed upon a fideicommissum, as where the

testator leaves “my farm to A; on A’s death after me it is to go to B; on B’s
death after A it is to go to C.” In this case, B’s interest is fideicommissary in
respect of A’s interest, and fiduciary in respect of C’s interest. A familiar
instance of such a disposition occurs in the case of a prohibition against the
alienation of property out of a family, for there a fideicommissum is imposed
on each successive generation; subject now, of course, to the statutory limit on
the duration of fideicommissa.
91. Compendiosa substitutio

This is both a fideicommissary and a direct substitution in respect of the same

persons. For example, the testator leaves “my farm to A, and on his death it is to
go to B; if A dies before me it is to go to B.” The object of this double
substitution which was in use in former times was to ensure that B would
succeed if the fideicommissum collapsed owing to the fiduciary predeceasing
the testator. Today the double substitution is superfluous.

92. Ownership subject to a usufruct with a direct substitution as to the

usufruct at the testator’s death

For example, the testator leaves “my farm to my son A, subject to a life
usufruct to my sister B, or if B has predeceased me, to my sister C.” The legal
effect of this disposition is that, on the testator’s death, the ownership of the
farm vests in A, if he is then alive—subject to a life usufruct in favour of B, for
whom C may be directly substituted. In other words, if B is then alive, she
acquires the usufruct of the farm, and C acquires no rights. If B dies before the
testator, but C is alive upon his death, C acquires the life usufruct.

93. Ownership subject to a usufruct as to which there is a

fideicommissary substitution

For example, the testator leaves “my farm to my son, subject to a life usufruct
to my mother, and on her death a life usufruct to my wife.” On the testator’s
death, the ownership of the farm vests in the son, if he is then alive, and the
usufruct vests in the mother, if she is then alive. The wife, however, acquires
no vested interest, for her right is conditional on her surviving the mother. The
wife’s usufruct vests only if and when she is alive at the time of the mother’s
death. If the mother predeceases the testator, but the wife is alive at his death,
then of course the usufruct vests in the latter.
94. Ownership subject to a usufruct with a direct substitution as to the
ownership at the testator’s death

For example, the testator leaves “my farm to my wife for her life, the farm to go
on my death to my son A, or if A has predeceased me, to my son B.” On the
testator’s death the usufruct of the farm vests in his wife if she survives him,
and the ownership of the farm subject to the usufruct vests in A, or, if A has
predeceased the testator, in B.

95. Ownership subject to a usufruct with a direct substitution as to the

ownership at the death of the usufructuary

For example, the testator leaves “my estate to my wife for her life, and on her
death it is to be divided equally among our children or such of them as may
then be alive.” On the testator’s death, the usufruct of the estate vests in the
widow, and on her death the ownership of the estate vests in the surviving
children, these being directly substituted for the original group which consisted
of the surviving children and those who predeceased their mother.

96. Fideicommissum in which one fideicommissary is directly substituted

for another

For example, the testator leaves “my farm to X and if X dies after me without
children, it shall go to Y, but if X dies leaving children it shall go to X’s
children.” A fideicommissum of the farm is constituted, X being the fiduciary
and the fideicommissary either X’s children or Y, the latter being directly
substituted for the children in the event of X dying without leaving children. A
similar disposition is effected where the testator leaves his farm “to my son A
and on A’s death after me to A’s eldest son; if A has no son then alive, to A’s
eldest daughter.” A simple form of disposition, with the same effect, is where
the testator institutes “my wife sole heir and after her decease our children, and
in case of the predecease of any child his lawful descendants.”
97. Effect of wills

The chief effect of a will is to confer rights on the beneficiaries. A beneficiary,

however, whether heir or legatee, acquires no right in the property of the
testator unless he or she accepts the benefit.

98. Rights of heirs

On acceptance or adiation of the inheritance, the heir obtains a vested right to

claim from the executor payment or delivery of all the property in the estate
after satisfaction of the debts and legacies. But the heir’s claim is enforceable
only when the liquidation and distribution account has been confirmed. Where
there is more than one heir, each has this right in respect of his proportionate
share.

99. Rights of legatees

On the acceptance of a legacy, a legatee obtains a vested right to claim from the
executor delivery of the specific asset bequeathed to him or her, or registration
in the case of immovable property; this claim is enforceable only when the
liquidation and distribution account has been confirmed.

Where the assets in the estate are sufficient to satisfy all the legacies, pecuniary
and corporeal, in full, there is no difficulty as to each legatee obtaining delivery
of the bequest; but problems arise where the property specified as being
bequeathed did not in fact belong to the testator at all, or only belonged to the
testator jointly with other persons.

Where the testator leaves as a legacy specified property which belongs in fact to
a third person, but which the testator in error thought he or she owned, the
legacy is void; if, however, the testator knew that the property belonged to a

106
third person it is the duty of the executor to buy the property from the owner at
a reasonable price and to hand it over to the legatee, and if unable to do so to
pay the legatee its value. If the property had been mortgaged or pledged, and
the testator was aware of that fact, then unless a contrary intention appears from
the will it is the duty of the executor to discharge the debt and to hand over the
property free to the legatee.

If the property specified belongs to the residuary heir then, whether the testator
knew or did not know that fact, the legacy is valid. The heir, however, has an
election to accept or to refuse the terms. If the heir accepts the inheritance, the
heir must allow his or her own property to go to the legatee; if the heir refuses
to adiate and retains his or her own property, the heir cannot accept any benefit
under the will.

Where the property specified belongs jointly to the testator and to a third person
it is clear that the testator cannot override the rights of the co-owner; the
testator’s will cannot do more than he or she personally could do and the legacy
is not binding on the co-owner. There is a presumption in such a case that only
the testator’s share is bequeathed if it is doubtful from the will whether the
testator intended to burden his or her estate with the duty of buying out the co -
owner’s share. This presumption may, however, be rebutted and more easily so
where the testator bequeaths property belonging jointly to the testator and his or
her spouse. If the property bequeathed belongs jointly to the testator and to the
residuary heir, the whole of the property is deemed to be bequeathed; but the
heir has an election whether to accept the terms of the will or to keep his or her
share of the property.

If the property belongs to the legatee himself the legacy is void, unless the
testator had some real right, such as a mortgage, in the property; in that case the

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testator is deemed to remit such right and to leave the property unburdened to
the legatee.

100. Abatement of legacies

If, after the debts of the testator have been paid, the estate is insufficient to
satisfy all the legacies in full, they are reduced proportionately or “abated.”
There is a presumption that abatement applies to all the legacies unless the will
shows a clear intention to the contrary. A will may, of course, make express
provision for abatement, for example the abatement of annuities in the event of
a shortfall of income. It would appear that South Africa law draws no
distinction between specific and general legacies for the purposes of abatement.

The order of distribution among the beneficiaries in an estate which is unable

fully to discharge all the legacies is analogous if not identical with the order of
distribution in insolvency. The beneficiaries have personal claims against the
estate and they are in the position of creditors who cannot all be paid in full.
The preferred legatees correspond to the secured creditors, and the other
legatees to the concurrent creditors. The preferred legatees have preference and
are satisfied in full and the balance is divided proportionately among the
remaining legatees. The heirs in such a case get nothing at all.

101. Rights of fiduciaries and fideicommissaries

Under a simple form of fideicommissum the right of the fiduciary (as stated
earlier) vests on the death of the testator; the right of the fideicommissary vests
only upon the fulfilment of the attached condition, which is almost invariably
that the fideicommissary be alive at the death of the fiduciary, whereupon the
fideicommissary becomes the unconditional owner of the property. Likewise, if
the fiduciary for any reason fails to take or renounces his or her rights, the
inheritance passes to the surviving fideicommissaries, provided that the latter
class is then ascertainable and that there is no other provision in the will
postponing vesting or enjoyment of the interest. Pending the vesting in the
fideicommissary, the right and duties of the parties are as follows:

The fiduciary acquires a resolutive ownership; he or she has the right to possess
the property, to use it and take the fruits, but not to depreciate it. The fiduciary
may not alienate or mortgage the property except in the following cases:

 Where the will confers the right of alienation on the fiduciary either
expressly or impliedly, as in the case of a fideicommissum residui, when
the fiduciary may alienate three-quarters of the property.
 Where all the persons, being majors, who are interested in the
fideicommissum agree to the alienation, provided that the
fideicommissum was imposed for their benefit and for no other reason. It
follows that the fideicommissum may generally be extinguished by the
joint act of the fiduciary and the fideicommissary. It must be noted that
what is termed a “family arrangement” between the beneficiaries which
purports to effect substantial deviations from the provisions of a will are
as a rule not lawful; but special considerations arise in connection with
fideicommissa permitting such departures.
 With the authority of the court on the grounds of necessity (ob causam
necessarium),
o to pay the debts of the testator and to make provision for the
legacies bequeathed by him or her when there is no other property
available for the purpose;
o to pay taxes imposed on the property;
o to pay expenses which are necessary for the preservation or
protection of the property; or
 o to provide necessary maintenance for the children of the fiduciary
where the latter is indigent.
 The court has power, by virtue of statute, to remove or modify
testamentary restrictions on immovable property in certain
circumstances, inter alia where it will be to the advantage of the persons,
born or unborn, certain or uncertain, who are beneficiaries under a will.

The fiduciary’s rights are subject to the rights of creditors. Hence execution
may be levied against the fiduciary’s rights in pursuance of a judgment
obtained against him or her. On the insolvency, the fiduciary’s rights vest in
his or her trustee (unless the will provides otherwise) and they may be sold
subject, of course, to the rights of the fideicommissary. A fiduciary, again, may
let the property for the period of his or her right, but not beyond the
same. Consequently the fiduciary may not grant a lease which is entitled
to registration, such as a lease in longum tempus, with the exception of a lease
for his or her own life.

The fiduciary, if called upon, must give security for delivery of the property to
the fideicommissary when the condition is fulfilled unless

 under the will the fiduciary is entitled to alienate the fideicommissary

estate;
 the testator has dispensed with the requirement of security; and
 the fideicommissary is the child, brother, or sister of the fiduciary.

In the case of a fideicommissum residui, security for a quarter only of the

property need be given. In the case of immovable property, it is the duty of the
executor to have the terms of the fideicommissary disposition registered or
endorsed against the title deeds of the property, and consequently there is
probably no necessity for security to be given.
If the estate of the fideicommissary heir or legatee is sequestrated, his or her
contingent interest does not vest in the trustee; but if the interest becomes
vested while the estate is under sequestration, it ipso facto passes to the trustee.

A fideicommissary has prior to the vesting of his or her interest only a

contingent right to the property (sometimes referred to as a mere spes or
expectation of benefit). If, however, any attempt is made by the fiduciary or by
any third persons to infringe the rights of the fideicommissary the court will
give the latter ample and effective protection. Thus the court will interdict a
threatened alienation of the fideicommissary property, and it will refuse to
grant execution against the property in respect of a judgment obtained against
the fiduciary. Similarly the court will generally not allow the fiduciary to
mortgage the property, for the fideicommissary is not liable for the debts of the
fiduciary; but as pointed out earlier, there are circumstances in which the
court may consent to the mortgage or sale of the fideicommissary property.
The contingent right of the fideicommissary may be ceded and such
cession need not be notarially executed.

102. Jus accrescendi

Jus accrescendi, or the right of accrual, is the right of beneficiaries to whom an

interest in property has been left jointly to take the share of one of them who
fails to take his or her share. Such failure may take place by the death of the
beneficiary before vesting occurs; or by the beneficiary’s incapacity to take his
or her share; or by the beneficiary’s refusal to adiate.

Where the jus accrescendi operates the co-beneficiaries to whom the vacant
portion accrues take the same shares thereof as they do of their own portion.
Where it does not operate the share vacated by a co-heir devolves upon the
intestate heirs of the testator, while the share vacated by a co-legatee falls into
111
the residue of the estate and devolves upon the heirs, testate or intestate, of the
testator.

The right of accrual, then, is the right co-heirs and co-legatees have of
inheriting a share which a co-heir or co-legatee cannot, or does not wish to,
receive. Accrual can, however, only operate if provision is not made for
substitution either by the testator himself or herself, or ex lege through the
operation of section 2C of the Wills Act.

Whether or not accrual operates in certain circumstances depends on the

intention of the testator as it appears from the will. The testator may make some
express provision on the point. If the intention of the testator is not clear, his
probable intention must be deduced from certain indications in the language of
the will itself, or from the surrounding circumstances. To assist the court in
ascertaining the testator’sprobable intention various canons of construction or
conjecturae have been evolved, the most important of which concerns the
method of joinder of the beneficiaries. The mode in which beneficiaries are
joined is only one of the indications, although an important one, in ascertaining
the probable intention of the testator. It must be stressed, however, that these
conjecturae are merely guides and not hard and fast rules of law.

103. Express provision concerning accrual

The testator may make express provision for a right of accrual upon the lapsing
of the share of one of several beneficiaries by substituting the remainder in his
place; for example, where he leaves his estate “to my children and if any of
them predecease me, his share shall pass to the others,” or “shall revert to the
estate,” or “to my children, or such of them as may be alive at my death.”
On the other hand, the testator may expressly negative any accrual to the
original beneficiaries where he or she directs that upon the lapsing of a share it
shall go to some third person or persons, e.g. where he appoints “my children as
my heirs and if any of them predecease me his lawful descendants shall take his
share.”

104. No provision concerning accrual

In the absence of any contrary indication in the will as to the testator’s intention
the jus accrescendi takes place where the beneficiaries have been appointed
jointly, or re et verbis; but not where they have been appointed to separate
shares, or verbis tantum. It is important to note, however, that even if the form
of joinder of heirs in a will is verbis tantum the intention of the testator may be
otherwise. It is in the will that indications of the testator’s opinion must be
sought but it is permissible and sometimes essential to read and interpret the
will in the light of the relevant circumstances existing at the time of its making.

Thus there is generally a right of accrual where the appointment is joint, e.g. “to
A and B jointly,” or simply “to A and B,” or “to our three sons.” On the other
hand there is prima facie no right of accrual where the appointment is verbis
tantum, i.e. to separate shares—e.g. where the property is left “to A and B in
equal shares,” or where the estate “is to be divided into five portions each of
which is to go to a specified person,” or where “the property is to be divided
among the children, share and share alike”—and clearly not where separate and
distinct portions of a farm are left to various beneficiaries.

In order that the jus accrescendi should operate where the beneficiaries are
appointed verbis tantum, it must appear from the will that the testator positively
contemplated the lapse of a specific share, and that the testator intended that
such share should in that event accrue to the other beneficiaries. It has been
suggested that such an intention appears where the testator appoints two or
more
persons “sole and universal heirs.”

The rules relating to the jus accrescendi apply not only where the interest
disposed of is ownership but also where it is a fideicommissary interest, or a
usufruct, or a right to income under a trust; but not where it is a fiduciary
interest, and adiation has taken place, for the interest has then vested.

Once an interest has vested in the beneficiaries there can be no accrescendi,

because if one of the beneficiaries dies his share vests in his estate. There is an
obvious exception in the case of a usufruct; on the death of one of the
usufructuaries, his interest accrues to the other usufructuaries.

105. Administration of deceased estates

105.1 Security

Any person who has not been nominated as executor in a will, or who has not
been exempted from providing security in terms of a will, must furnish security
to the Master for the proper performance of their duties. Security is in the form
of a bond of security, which is usually obtained from an insurance company
against payment of a premium. If the executor later defaults and causes loss to
the estate, the Master can enforce the security and recover the loss from the
executor or the surety.

The amount of security is determined by the value of the assets in the estate.
The cost of furnishing security is a liability against the estate, and is paid as an
administration cost. The executor will not be required to furnish security

 where that person is the parent, spouse or child of the deceased; or

  where that person has been exempted from providing security in the
deceased’s will.

Despite the above, the Master will call for security

 where the executor’s estate has been sequestrated;

 where the executor has committed an act of insolvency;
 where the executor resides outside South Africa; or
 for any other good reason which, in the opinion of the Master,
necessitates security.

105.2 Advertising for creditors

In terms of section 29 of the Administration of Estates Act, as soon as letters of

executorship have been granted, the executor must immediately advertise for
creditors to submit claims against the estate within thirty days for publication.

The advertisements are required to be published on the same day in the

Government Gazette, and in a newspaper that circulates in the district where the
deceased was ordinarily resident at the time of death. If, at any time within
twelve months prior to death, the deceased resided in any other district, the
advertisement must also appear in a newspaper circulating in that district.

If a creditor does not lodge a claim in terms of the notice, the creditor runs the
risk of having that claim excluded from the liquidation and distribution
account. It has become customary to call upon debtors to pay their debts to the
estate within the same period, even though this is not prescribed.
105.3 Advertising the liquidation and distribution account to lie for
Inspection

In terms of section 35 of the Administration of Estates Act, once the account

has been submitted to the Master, it is examined by one of the officials of the
Master’s Office to establish whether or not it is in order. If it is not found to be
in order, the executor will be instructed to amend it to the satisfaction of the
Master.

Once it has been approved by the Master, the executor advertises the account to
lie for inspection. The advertisements are required to be published on the same
date in the Government Gazette and a newspaper that circulates in the d
istrict where the deceased was ordinarily resident. If, at any time within twelve
months prior to death, the deceased resided in any other district, the
advertisement must also appear in a newspaper circulating in that district.

The advertisement must state the dates on which the account will lie for
inspection, and the places at which it can be inspected. The account will lie for
inspection at the relevant Master’s Office, and at the offices of the Magistrate in
the district where the deceased was ordinarily resident. If the deceased resided
in more than one district during the twelve months prior to death, the account
lies at that district’s Magistrate as well.

The purpose of the account lying for inspection is to enable any interested party
to object to the account if that party is of the opinion that it is incorrect. Any
objections to the account must be submitted to the Master, who will then
forward the objection to the executor for his comments, in terms of the audi
alterem partem principle.
On receipt of the executor’s comments, the Master makes a ruling. If the Master
is of the opinion that the objection is well founded, the executor will be directed
to amend the account. The Master may also refuse to sustain an objection.

Any person aggrieved by the Master’s decision may approach the court within
thirty days. The court may make any order it deems fit.

References

Books

 Jamneck, Juanita, Christa Rautenbach, Mohamed Paleker, Anton van der

Linde, and Michael Wood-Bodley. The Law of Succession in
South Africa. Edited by Juanita Jamneck and Christa Rautenbach. Cape
Town: Oxford University Press, 2009.
th
 See also De Waal MJ & MC Schoeman-Malan Law of Succession (4
ed.) (2008) Juta & Co. Cape Town.

Cases

 Blom and Another v Brown and Others [2011] 3 All SA 223 (SCA).
 Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O).
 Ex Parte Graham 1963 (4) SA 145.
 Ex Parte Meier en Andere 1980 (3) SA 154 (T).
 Gafin NO v Kavin 1980 (3) SA 1104 (W).
 Pillay and Others v Nagan and Others 2001 (1) SA 410 (D).
 Th ero n a n d An o t h e r v Ma st e r of t h e H i gh Co u rt [2001] 3
All SA 507 (NC).

Notes

1. Act 81 of 1987.
2. Act 7 of 1953.
3. Act 81 of 1987.
4. Wills Act 7 of 1953.
5. See Intestate Succession Act 81 of 1987.
6. 1966 (4) SA 589 (A).
7. Re Beaglehole, Ex parte Engelbrecht, Ex parte Rungsamy,
Ex parte Govender, Ex parte Pieters and Ex parte Stoter.
8. Ex Parte Graham 1963 (4) SA 145.
9. It is expressly provided by the Deeds Registries Act that “owner”
in relation to immovable property includes the legal representative of a
deceased owner.
10. s 2C(1)-(2).
11. s 1(6)-(7).
12. s 2D(1)(c).
13. See L Taylor v AE Pim 1903 NLR 484.
14. See Casey v The Master 1992 (4) 505 (N).
15. Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T).
16. Ex Parte Meier 1980 3 SA 154 (T).
17. Gavin v Kavin 1980 (3) SA 1104 (W).
18. See Pillay v Nagan 2001 (1) SA 410 (D).
19. Ma kh a n ya v Mi ni st e r o f Fi n a n c e a nd O th ers 2001
(2) SA 1251 (D).
20. Danielz v De Wet [2008] 4 All SA 549 (C).
21. See Ex parte Stephens' Estate 1943 CPD 397.
22. Act 81 of 1987.
23. J.A. Schiltkamp, “On Common Ground: Legislation, Government,
Jurisprudence, and Law in the Dutch West Indian Colonies in the
Seventeenth Century”, A Beautiful and Fruitful Place: Selected
 Rensselaerwijck Papers, vol. 2 (Albany: State University of New York
Press, 2011), 228.
24. Grotius 2.28.
25. Van Leeuwen CF 1.3.16.
26. Act 25 of 1961.
27. Act 13 of 1934.
28. Act 81 of 1987.
29. Act 74 of 1983.
30. Statutory language: “out of community of property and not subject
to accrual”
31. Statutory language: “out of community of property but with
accrual”
32. Act 43 of 1992.
33. Volks v Robinson.
34. There are, however, some jurisdictions abroad which require a
percentage of the deceased estate to go to the spouse of the deceased.
35. Minister of Education v Syfrets Trust.
36. See Daniels v Campbell.
37. In re Estate Visser 1948 (3) SA 1129 (C).
38. See Carelse v Estate De Vries.
39. Hoffmann v Herdan NO 1982 (2) SA 274 (T).
40. See s 4 of the Wills Act.
41. See Geldenhuys v Borman.
42. Harlow v Becker.
43. Spies v Smith.
44. Kirsten v Bailey.
45. See Ex Parte Estate Davies.
46. s 2(1)(a)(i), read with s 2(1)(a)(ii).
47. s 2(1)(a)(ii).
48. s 2(1)(a)(i) read with s 2(1)(a)(ii) and (v).
49. s 2(1)(a)(ii) read with s 2(1)(a)(v).
50. s 2(1)(a)(i) read with s 2(1)(a)(v).
51. s 2(1)(a)(v).
52. See Liebenberg v The Master.
53. s 2(1)(a)(iii).
54. At the time the Kidwell case came before the court, s 2(3) was not
yet in operation.
55. See Ex Parte Maurice.
56. Macdonald v The Master.
57. Smith v Parsons.
58. Van Wetten v Bosch.
59. [2010] JOL 26090 (SCA).
60. Senekal v Meyer.
61. Marais v The Master.
62. Barrow v The Master.
63. See Henriques v Giles.
64. Ex Parte Lutchman 11.
65. See Botha v The Master.
66. Van Zyl v Esterhuyse.
67. Chapman v Chapman.
68. Ex Parte Naude.
69. Estate Kemp v McDonald’s Trustee.
70. Abolished: Cape Colony, Succession Act 23 of 1874; Transvaal,
Proclomation No. 28 of 1902. When a legitimate portion was not
provided, the will could be set aside by the action in officioso testamento,
 or if insufficient it could be remedied by the action in supplementum
legitimae.
71. A twice-married testator could not bequeath to his widow more
than the least portion left to any child of the first marriage. Abolishsed:
Cape Colony, Act 26 of 1873; Transvaal, Proclamation No. 28 of 1902.
72. Willie M Van Der Westhuizen, “South Africa”, 15 Internatioanl
Legal Practitioner (1990), p. 16.
73. Garfinkle v Estate Garfinkle.
74. Anderson v Estate Anderson.
75. See s 37 of the Administration of Estates Act.

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