L387 – LAW OF SUCCESSION AND ADMINISTRATION OF ESTATES

SUBSTITUTION AND ACCRUAL

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SUBSTITUTION

1. This part deals with direct substitution and not Fideicommissary substitution.

2. Here is an example of a clause in a will that provides for direct substitution:

‘I bequeath my farm to Tsepiso and direct that should Tsepiso predecease me or

refuse this bequest it shall go to Tsepo’.

3. Thus, direct substitution occurs if the will nominates a substitute beneficiary (or
beneficiaries) to take in place of the person who is the testator’s primary choice,
known as the ‘institute’ (the original instituted beneficiary). This may occur
expressly or by implication.

4. If the institute survives the testator, has capacity to inherit, and is willing to adiate,
then he (or she) takes; and the substitute beneficiary acquires no rights under the will
whatsoever.

5. But if the institute predeceases the testator, or is unable or unwilling to take, then the
substitute beneficiary (or beneficiaries) takes in his (or her) place; provided, of
course, that the substitute survived the testator and did not lack capacity to inherit.

6. Thus the respective interests of the institute and the substitute beneficiary are
alternative and mutually exclusive. This means they are separate and very different
from each other. Both cannot exist or happen together.

7. Consider this clause:

‘I bequeath my farm to Tsepiso and direct that if Tsepiso predeceases me it shall go

to Tsepo’.

8. The event specifically provided for by the testator in this clause is the institute
predeceasing him. What is the position if Tsepiso survives the testator but
repudiates; or lacks capacity to inherit (i.e. is disqualified)? In such a case the law

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 tends towards a broad construction of the substitutionary provision so as to permit
substitution to take place.

See Estate Swanepoel v Swanepoel 1911 CPD 328 (re disqualification); Ridley
NO v Registrar of Deeds, Natal 1988 2 SA 262 N; Ex parte Estate Van Rensburg
1965 3 SA 251 C at 257 re repudiation.

9. Difficulties may arise in determining whether the words used by the testator are
intended to bring about direct substitution.

10. If direct substitution is not provided for and there is no right of accrual (as to
which, see below), then the consequences of the instituted beneficiary not taking are
as follows:

(a) In the case of a legacy, the benefit falls into the residue of the estate.

(b) In the case of the appointment of an heir, the assets devolve as on intestacy.

ACCRUAL

11. Sometimes the testator creates joint beneficiaries to the same asset. For example:

‘I bequeath my house to Tsepiso and Tsepo’.

What happens to Tsepiso’s share if he (or she) does not take and there is no provision
for substitution? Does it go to Tsepo because it was a joint bequest? Or does it fall
into the residue of the estate? The answer will depend on whether the ius
accrescendi (right of accrual), operates.

12. The right to take your co-beneficiary’s benefit if he (or she) does not take it is called
the ius accrescendi (right of accrual). This may happen where a co-beneficiary
predeceased the testator, or is disqualified because of having witnessed the will (etc),
or was appointed subject to a suspensive condition that was not fulfilled, or has
refused to adiate.

13. A co-beneficiary only has this right of accrual if it accords with the testator’s
intentions as gathered from the terms of the will. Where the testator has provided for
substitute beneficiaries it must be implied that accrual to co-beneficiaries is
excluded.

14. Accrual is different to substitution because it only applies to co-beneficiaries.

15. If accrual does not apply, then:

(a) In the case of a legacy, the share of the beneficiary who does not take falls
into the residue, and goes to the heirs (testate or intestate, as the case may
be).

(b) In the case of co-heirs, the share of the heir who does not take goes in terms
of the rules of intestate succession.

16. If the rights of beneficiaries have vested there is no longer any room for accrual to
operate. I.e. if a beneficiary dies after dies cedit then his (or her) share vests in his
estate.

How is the testator’s intention ascertained

17. The primary indicator (Latin: conjectura) of the testator’s intention as to whether
accrual must operate or not is the way in which the co-beneficiaries have been joined
in the will (the method of joinder). But this is not the sole indicator of the testator’s
intention. (For a useful summary of the factors that will be considered by the courts,
see De Waal 2003 191-192; 1996 146-147 (optional reading). In what follows, we
will consider the various methods of joinder

18. Joinder re tantum (joinder through the thing only).

(a) ‘Re’ means ‘thing’; and ‘tantum’ means ‘only’.

(b) The same thing is bequeathed to different persons in different sentences or

clauses without defined shares being allocated.

(c) E.g.:

Clause 1 says ‘I bequeath my car to A’.

Clause 2 says ‘I bequeath my car to B’

(d) Note – If defined shares were allocated, this would not be regarded as joinder
through the res. E.g. if the beneficiaries in the above example were each
bequeathed ‘a half-share of my farm’.

(e) Accrual applies, subject to the will disclosing a contrary intention.

19. Joinder re et verbis (through the thing and the words).

 (a) This is the bequest to two or more persons in the same sentence or clause
(verbis) without allocating specific shares in the thing (re).

(b) E.g.:

‘I bequeath my share in Edco to Tsepiso and to Tsepo’.

(c) Accrual applies, subject to the will disclosing a contrary intention.

20. Joinder verbis tantum (through the words only)

(a) The thing is bequeathed jointly in the same sentence or clause (verbis), but
defined shares are allocated, so they are not joined by the re (thing).

(b) Example:

‘I bequeath my house to Tsepiso and Tsepo in equal shares’.

Or

‘I bequeath my house to Tsepiso as to a quarter share and to B as to a three-

quarter share’.
(c) The definition of shares breaks the link via the thing. The joinder is therefore
by the words only (verbis tantum).

(d) Accrual does not apply, unless a contrary intention is revealed by the will,
read in light of such evidence of surrounding circumstances as is admissible.
Read Lello v Dales NO 1971 (2) SA 330 (A) for an understanding of this
process.