LAW OF SUCCESSION AND ADMINISTRATION OF ESTATES COURSE MATERIAL _- 2011 WILLS ‘The purpose of the course is to supply a broad overview of the subject from a practical point of view. During training, instructors will only cover those aspects which candidate attorneys will encounter most often in practice, The remainder of the course is self study, ‘The purpose of the notes is to supplement the presentation of the instruetors and, hopefully, be of use in practice, Notes do not form a complete manual on the subject - the use of relevant sources is still necessary, It must be bome in mind that the administration of estates is a specialist subject and that the few hours spent during training sessions will not be sufficient to ensure a pass in the examinations. As with the other subjects needed, intensive study of the various statutes’and other authorities, both before and after the training ses: essential, i ‘These notes are based on the notes of the Association of Law Societies of the Republic of South Africa. These notes have been edited and amplified to comply with Namibian law, for use by the University of Namibia, Justice Training Centre, by Mrs. Anne-Doris Hans-Kaumbi, practising legal practitioner and Mr. Trusty Taylor, ex Master of the High Court, A SYLLABUS AND AIM OF COURSE [Page 2] B PRACTICE NOTES [Page 3] C€ INTRODUCTION TO LAW OF SUCCESSION [Page 5] WILLS [Page 5] TESTATE SUCCESSION [Page 9] CONTENTS OF WILLS [Page 14] PRIOR TO DRAFTING WILLS [Page 18] DRAFTING OF WILLS [Page 20] CLAUSES IN WILLS [Page 23]enoss GENERAL, COMMENTS [Page 31] EXAMPLE OF A WILL EXAMPLE OF A LIVING WILL INTESTATE SUCCESSION INTESTATE SUCCESSION ORDINANCE 12 OF 1946 COMMON LAW RULES OF INTESTATE SUCCESSION REHOBOTH BASTERS SCHEDULE 2 ESTATES OF BLACK NAMIBIANS SUCCESSION BY CONTRACT ADMINISTRATION OF ESTATES PRECEDENTS TRANSLATION OF CERTAIN STATUTES DEFINITIONS FORMS [Page 36] [Page 39] [Page 41) [Page 43] [Page 44] [Page 47] [Page 50] {Page 52] [Page ] [Page ] [Page ] [Page | [Page }A. SYLLABUS WILLs, ‘After having dealt with this section of the work candidates should have a sound understanding and knowledge ‘*The subject terminology which applies to wills; nended The provisions of the Wills Act 7 of 1953, as «The definitions (in section | ofthe Wills Act) of who is competent to signa will asa witness, what the concept “sign” entails, the meaning of "amendment" as opposed to "deletion’, and the meaning of he term "will ‘*The formalities required for the execution of a valid will in terms of section 2(1); ‘*The formalities required for amendments to a will in terms of section 2(b)(i)(iv) The rebuttable presumption in section 2(2);, ication to inherit on the object of the testamentary «The effect of repudiation, incapscity to inherit or disquali n between an heir and a legate bequest. The practical implications must be seen in the context ofthe distin 8 far as substitution and accrual is concerned; ‘The position of an adopted child ora person bom out of wedlock who is to inherit testate or intestate, *\Who is competent 10 make a will (section 4); *Disqualifications in respect of benefiting under the will i LLeamers should be able to draw a simple will (nominating executors, bequests, heirs, minors, excluding benefit falling into marriage in community of property (MICP), Collation etc. A sound notion of a testamentary trust, the patties to such Trust, when and why a testamentary rust should be used, the requirements to nominate a ‘Trustee and the rights and powers of the Trustee. A sound knowledge of Trust Monies Protection Act No 34 of 1934 is therefore important. INTESTATE SUCCESSION ‘This section deals with the laws applicable to the estates of persons who die without leaving a valid will, After completion ofthis section the candidate must know: * the Intestate Succession Ordinance No 12 of 1941 (as amended) © the Children's Act No 33 of 1960 in so faras it relates to inheritance of an adopted child (section 74) * the Estates and Succession Amendment Act No1S of 2005 © the Children's Status Act no 6 of 2005 (especially Section 16) «Schedule 2 of the Administration of Estates (Rehoboth Gebied) Proclamation no 36 of 1941 in respect of intestate succession of Rehoboth Basters and Section 20 3‘+ ‘The Native Administration Proclamation 15 of 1928. + Subject terminology relating to Intestate Succession ‘+ The common Jaw rules relating to intostate Succession SUCCESSION BY CONTRACT Know when a contract of succession is valid and enforceable, B. PRACTICE NOTES INTRODUCTION, ‘The administration of estates is a specialised subject and considerable effort must be put into your studies if you ‘want fo make a success in this regard. ‘The fimetion of these notes is to impart the basic principles of the law of suecession. It is, however essential that students enlarge their knowledge by referring to textbooks and the various statutes. The various decided cases mentioned should be studied and a Summary made of the relevant facts. ‘The mere study of these notes will be insulficient to be successful. The study of the relevant statutes and handbooks and decided cases on the subject is imperative. Be careful however that the statutes and handbooks studied are relevant to the Namibian situation. Although basically the same statutes are used in South A\ftica, where most handbooks are printed, there are differences as a result of various amendments to statutes made in Namibia as well as South Affiea. The latest handbocks will, for example, deal with the 1988 Intestate ‘Succession Act and the 1992 amendment to the Wills Act which are not applicable to Namibia, STATUTES. It is essential that candidates have access to at Ieast the following statutes, which as mentioned above MUST be annotated to conform to the Namibian law. I Articles 20 0 29 of the Political Ordinance of 1580 2 The Interpretation of 1594 3 The Octrooi of 1661 (see section I for translation of these Ordinances) 4 Intestate Succession Ordinance no 12 of 1946 5 Wills Act No 7 of 1953, 6 Administration of Estates Act no 66 of 1965. Together with regulations thereto. 1 Section 115(bis) of Administration of Estates Act no 24 of 1913, 8 Children's Act No 33 of 1960 (section 74) 9 Native Administration Proclamation No 15 of 1928 (section 18(2))10 Administration of Estates (Rehoboth Gebiet) Proclamation No 36 of 1941,(Section 20 and Schedule 2) 11 The Estates and Succession Amendment Act No 15 of 2005 12 Children’s Status Act no 6 of 2006. Canglidates should also be aware ofthe provisions of the following statutes: 13. Immovable Property (Removal or Modification of Restrictions ) Act no 94 of 1965. 14 Subdivision of Agricultural Land Act No 70 of 1970. 15 Recognition of Certain Marriages Act No 18 of 1991 It is recommencled that textbooks on the subject should also be referred to .Be careful however that most of the statutes included in these handbooks will have been annotated to conform fo South African Law and not the Laws applicable in Namibia ‘Suggested references include: 1 Witte Principles ofSouth Aftican Law, 2 Steyn ‘The Law of Wills in South Aftica, 3 Meyerowitz ‘The Law and Practice of Administration of Estates, 4 Shrand ‘The Administration of Deceased Estates in South Africa, 5 Erasmus andde Weel The South Aftiean Law Of Succession 6 —— Wiechers and Vorster Administration of Estates 7 Corbett, Hofineyer, Kahn “The Law of Succession in South AricaC. LAW OF SUCCESSION. 1. INTRODUCTION, ‘The Jaw of succession comprise those legal rules or legal norms which regulate the devolution of a deceased person's estate upon one or more persons, Under Namibian Law, a person may make a Will directing how his assels shall devolve after his death (The Wills Act 7 of 1953) will apply) or a person may die without leaving a valid Witl (in which case the Intestate Succession Ordinance 12 of 1946, Schedule 2 of the Proclamation of 1936 oF Proclamation 15 of 1928 will apply). Ifa person dies having made a Will, but the Will does not dispose of his entire estate, then such person will have died patially testate and partially intestate. The assets that have not been dealt with in the Will, will devolve on his intestate heirs. Namibian Law recognises total freedom of testation. A Testator may accordingly dispose of his property disiahcrting his spouse, childyen and family wiembers and may deal with his estate as he pleases. Freedom of Testation does, however, net entitle one by Will to unilaterally vary one’s legal or contractual obligations or liabilities ¢.g. although one's family may be disinherited, this does not preclude them from claiming ‘maintenance, state succession is briefly dealt In this section of the notes testate succession will be dealt with extensively. In With just after the section on wills and testate suecession, 2. WILLS 2.1 After this session the student should be able to: 2.1.1 Define the following subject tenninology: wilt Statutory Will Testate succession Intestate succession Testator Competent Witness Signature/Sign Initials Soldiers Will Amendmeat/Deletion ‘The Master Revocation Executor m. Security a. Legacy ©. ——_ Heits/Legatees P- __Fideicommissum/Fidefcommissum Residue q — Usufiuet r Collation s. Funeral Direction t Per Stirpes and Per Capita ervrrespasoee 2.1.2 Explain the formalities to comply with to execute a valid will, with reference the provisions of the Wills Act no 7 of 1953.2.1.3 Indicate wh mpetent to sign a will as witness 2.14 List the formalities required for amendments to a will i terms of seetion 2(0)()-Cv). 2.1.5 explain the rebut able presumption in section 2(2) with regard to amendments to a will, 2.1.6 Distinguish between an heir and a legate. 2.1.7 Explain the effect of repudiation, incapacity to inherit, failure or disqualification to inherit the object of ‘a bequest. Refer to substitution and acerual 2.1.8 Explain the position of an adopted child, 2.1.9 Indicate who is competent to make a will 2.1.10 Indicate who will be disqualified from benefiting undey a witl 2.1.11 — Drawa simple will and the various subdivisions with regard to.a given set of facts 2.2. INTRODUCTION. iting which sets out how a testator wants his estate to be distributed amongst his 4 testamentary w In Ex parte Davies 1957 () SA 47 (N) the Court decided that a testamentary w defines any one ofthe three essential elements of a bequest ing is a document which (a) ‘The Property Bequeathed (b) The extent of the interest Bequeathed (©) The Beneficiaries In Moses v Abineder 1951 (4) SA 537 (A) it was stated that any document in the nature of a testamentary ‘writing incorporated into a will by references it must itself satisfy the formal requirements for valid wi. 2.2.1. EYPES OF WILLS, The Wills Act no 7 of 1953 as amended by Act 48 of 1958 prescribes the formalities which all wills made in Namibia after | Janudry 1954 noust comply. The effect of this act is that‘ Common Law wills such as Notarial \wills are invalid unless they comply with the requirements of the act Section 3 only retains one privileged will that is the soldiers will. All other wills such as a Holograph will, the ‘Ambassador's will and wills made in time of plague, have disappeared ‘As regards the various forms of wills which we currently have in Namibia, we have the underhand will whieh from a formality point of view is prepared in terms of section 2(1) of the Wills Act and the notarial Will which is executed by a nolary and filed in his protocol, This form of will (notarial wil) has toa large extent lapsed due to disuse. The Wills Act does not make provision for notarial wills and any *Notarial Will” must comply with ‘the normal provisions ofthe act. The the Act. It can be executed without the formalities prescribe ‘Act provides in section 3 for a Soldiers Will which is the only privileged form of will recognised in section 2(1)(a) ofthe act 2.2.2, JOINT AND RECIPROCAL WILLS Any (wo of more persons capable of making a will may contain their wills in one single document. Such a will is known as a joint will. In practice itis normally a married couple whe makes use of the 7jcint will. The parties do not have to leave any benefits t0 one another and each one of them is fre to alter his/her will (Which is contained in such a joint will) or o revoke such a will without the consent or participation of the other party. The principle is that the joint willis in fact the separate will of each party contained in one single document A reciprocal willis a joint will in which the parties benefit one another. A reciprocal will is thus a joint Will, but a joint will is not necessary a reciprocal will, Also in a reciprocal will each party is entitled to revoke or amend his own will (contained inthe reciprocal will) without the consent or participation of the other party/pattes. There is a presumption that bequests in joint or reciprocal wills are only applicable tothe individual property of exch participating testator. However, where two or more testators in a reciprocal will consolidated or massed their separate estates into a single unit where-after they jointly dispose ofthe massed estate you get estate massing and then the principle with regard to the amendment and revoking of wills alters. Once adiation has taken place after the death ofthe frst dying the survivor may not alter the provisions of the joint will, 2.2.3 WILLS EXECUTED OUTSIDE NAMIBIA (FOREIGN WILLS) The Wills Actin terms of Section 3bis provides that wills executed outside Namibia shall be valid if t complies With the Jaw of the country where, the will was executed or where the testator was domiciled at the time that the Will was executed or at the time of his death or the law of the country where the testator was at the time of execution or his death a citizen, 2.2.4 THE SOLDIE) WILL ‘The only privileged will recognized by the Wills Act isthe soldier's wil, It ean be made by any person who is on active service in any war in which Namibia or ber elles are involved. The soldier's will mast be in waiting but no other requirements are prescribed, The testator need not draw it up in his own handwriting as it ean even be typed or printed. This will need not be signed by the testator and no witnesses are requived. The soldier's will is valid ifthe soldier dies on active service or dies within one year of hi ceasing to be on active service. The Master ofthe High Court has the discretion to accept a soles will whichis signed if she is satisfied by evidence on affidavit that the requirements of section 3(1) and (2) have been complied with. Ifthe wil has not ‘been signed by the testator, application will have to be made to Court before the Master can accept it 2.2.8 WILLS EXECUTED BY REHOBOTH BASTERS PRIOR TO 29 DECEMBER 2005 Section 20 of proclamation 36 of 1941 reads as follows: "20° Every will shall be in writing and shal be signed or marked on every sheet thereof by the person executing the saune in the presence of at least nvo persons of full age who have no ‘interest therein, No person signing ina capacity of witness shall be enliled to fake any benefit there-under: Every will shall show the date of ts execution.” This Proclamation was repealed by the Succession Amendment Act 15 of 2005 however all will executed by the Rehoboth Baster community prior to 29 December 2008 will be valid if it complies with Section 20 of the Proclamation. It is important to note that witnesses toa will n tens ofthis Section are required to be of fll age which is 21 in Namibia, Note however that any will drafted after 29 December 2005 need to comply with the requirements in terms of Wills Act 7 of 1953. 2.3 THE PLACK OF THE WILL IN THE ESTATE PLANNING OF A PERSO!2.3.1 INTRODUCTORY REMARKS The will is directed to that part of the planning of a person's affairs which is aimed at the "post mortem’ situation, This facet of estate planning aims to ensure that after the death of a person his next- ftkin will be properly maintained and that the fits of the deceased's economic activities during his lifetime will in a sensible way, and in their best interests, be awarded to his nextof-kin, Here the will therefore plays an important role: It is more or less the hinge on which the said facet in the estate planning process hangs. The will performs the function of a conduit through which the assets collected uring his life time can be channelled to his beneficiaries and to let this process run smoothly and \without any hitches a well considered and properly drafted willis of prime importance. Unfortunately this aspect of estate planning is offen neglected. It is therefore a catastrophe if a particular will is invalid because the formal requirements were not followed when it was prepared, Sometimes however, fas far as the contents is concerned a valid will will be as great a disaster if it was not properly considered atthe drafting staze. ‘To prepatea significant will capable of being implemented and which will result in a trouble fee estate administration, a sound knowledge of the law of succession and other similar areas are indispensable. The ability to pronounce oneself, concise, clear and correct on paper without falling in linguistic ‘eymnasties and cumbersome sentences is a strong recommendation, The drafter of wills must be able to set out the wishes and instructions of his client in such a way thatthe end result will be what was actually intended. ‘That is not always an easy task. It must throughout be guatded against that words tnd expressions, especially words and expressions with a certain logal technical content, do not create a falso impression with regard to the intention of the testator. In short: the drafting of a will is not work fora layman, : 2.3.2. THIE IMPORTANCE OF A WILL, Inthe event ofa person dying without a will the following problems wil arise: a ‘There could be a delay in the appointment of an executor. However if the person reporting, the estate is awate of the requirements of the Estates Act ane/or the Master and lodges these shen the estate i reported the appointment could be issued without any delay. Unless exempted by section 23 of the Estates Act, the executor will have to furnish security urring unnecessary costs. ». “The estate will devolve in ferms of tho Laws of Intestate Succession, c. intestate estate situation very often hes the result that it sdificut or totally impossible to divide the estate according to the factions to which each heir is entitled to in terms of the Laws of Intestate Succession asthe case study will illustrate 4. —_Anintestate estate often means the unnecessary or forced sale of asets to be abe to finalise the estate € Where the deceased leaves a wife and children the inheritance of the wife is Himited which nay create problems tothe daily attention and maintenance ofthe children {The Master ofthe High Court requires proper security in respect of minor’ inheritances. Cash inheritances must be deposited to the Guardians Fund under the control of the Master of the High Court until they become majors. When both parents die simultaneously (e.g. in a motor accident) and they leave minor children, there will be no executor, no guardian, no trustee who can administer their inheritances until they attain the age of 21 with the result that everything hangs in the air. This brings unnecessary costs for the estate such as the appointment offutors and/or curators.h. Ifthe deceased was a business man or a farmer who managed his affairs personally chaotic circumstances may arise, The enterprise must be continued and debts must be paid, Bank Accounts are frozen at death and because there is no will in which an executor has been nominated, it may take a few months before an executor is appointed. The surviving spouse and the children often suffer substantial discomfort because the assets and bank accounts are frozen and they have no access thereto, i ‘The application of rules in terms of intestate succession which is contrary to the Koran, places the heirs of a Muslim who dies without a will, ina very difficult position. The deviation from the directions of the Koran about succession is considered by the Muslims in a very serious light and it is therefore of great importance for a Muslim testator to have a valid will in terms ‘of which his estate id divided in terms of Islamic Law. 4: It will in general be more advantageous for black property owners to have a will drawn instead of relying on the distribution in terms of the Native Administration Proclamation No 15 of 1928 2.3.3. THE ROLE AND FUNCTION OF THE DRAFTSMAN OF WILLS. ‘The draftsman of the will is, especially in biggér and more complicated estates, a member of the "planning {cam". He forms an important link in the “expertise chain' which consists of himself as legal practitioner, the chartered accountant, the insurance expert, the financial planner or the expert on the terrain of the capital market. ‘Tho person drawing the willis especially contributing the following expertise: a b. ‘Tecluical expertise with regard to the norms of the law of succession, ° Statuary law applicable to will and estates. a ‘The way in which principles of the law of succession, certain aspects ofthe law and statute law are applied and interpreted by the courts, . He maintains his experts by aking naieof new developments in the field of his subject in order to provide an updating service to the client with a view to revising hs testamentary estate plan Keep stipulations as simple as possible however, be cautious not to oversimplify matters. The draftsman must know the rules of suecession and similar areas of the law and must be able to apply his knowledge. Be aware of interpretations that the courts have given to certain words. For example in Coetzee versus the Master and others 1982(1) S.A. 295 "eash’ was interpreted fo be only cash on hand as at date of death or cash ‘on savings or current aecount in a bank or building society. 2.3.4, POSSIBLE CLAIM FOR DAMAGES ‘The draftsman could lay himself open for a elaim for damages if for any reason the will drawn up by him is declared invalid. ‘There have been cases where a beneficiary has entered a claim for damages because he suffered loss as a result of an invalid will In the case of Pretorius V McCallum (so far unreported), the defendant attomey prepared a will for the first plaintiffs father and signed as onc of the witnesses. He only initialled the first page and the will was invalid by reason of non-compliance with section 2(1)(2)iv) of the Wills Act. The court upheld the plaintf’s claim for the difference between what they would have inherited under the will and what they in fact inherited on intestay. 0‘Similar decisions have been given in several reported cases in England and New Zealand. 3. TESTATE SUCCESSION ‘Testate succession is where a testator leaves a valid will setting out how his estate should be distributed amongst his beneficiaries. These wills are regulated by the Wills Act 7 of 1953 and it is applicable to Wills Since 1 January 1954, The object of this Act is inter alia fo avoid fraud by impersonations of testators and to make sure that testator’ can freely dispose of his assets 3.1.THE REQUIREMENTS FOR A VALID WILL (Section 2 of the Wills Act) a) The Will must be in writing b) The Will must be signed at the end thereof by the Testator or by some other person in his presence and by his direction - Section 2(1)(@)(i) ©) The Testator’s signature must be made by him or by such other person, or be acknowledged by the ‘Testator and, if made by such other person, also by such other person, inthe presence of two or more competent witnesses present atthe same time - Section 21}(@)i). A competent witness is any person ‘of he age of H years of older who is competent to give evidence in a Court of Law - Section 1 €) The witnesses must then attest and sign the Will in the presence of the Testator and of each other and in the case where someone else signs on the Teslater’s bchalf inthe presence also ofthat person - Section 21a) Gi). A witness must sign the Will and unlike a Testator may not sign by means of a mark ~ Section 1 €) if the wil consists of more than one page each page other than the page on which it ends must also be signed by the Testator or the person who signs on his behalf and by the same witnesses anywhere on the page » Scotion ()(a)(iv) 1) ifthe Will signed by the Testator by making a mark or by some other pesson in his presence and by his direction then a Magistrate, Justice of the Peace Commissioner of Oaths or Notary Public (a Certifying Officer) must certify at the end of the Will that he has satisfied himself as to the identity of the Testator and thatthe Will so signed is that of the Testator. Ifthe Will consists of mare than one page each paze other than the page on which jt ends must also be signed by the certifying officer anywhere on the page Section 2 (1X) 3.2, POINTS TO NOTE: in Harpur NO_y Govindamal 1993 (4) SA 751 (A) the Appellate Division confirmed that initials do not mount (0 a signature, Ifa witness intialled a Will this did not comply with the formalities and the Will was inva ‘The Testator may sign the Will in the presence of two or more competent witnesses or acknowledge his signature at a later stage to two or more competent witnesses atthe same time (Bosch v Nel en Andere 1992 (3) SA.600(T). Failure to sign each page renders the Will invalid. n‘The witnesses may not sign by means of a mark (section 1). The same witnesses must "sign and atest" each page of the Will anywhere on the page. The witnesses need not know that the document they are signing is a will Leprosy Mission v The Master of the Supreme Court 1972.(4) SA 173 (C) - A two page Will was declared {0 be invalid because the witnesses who had signed page 1 were different from those who had signed page 2, ‘There was no doubt that the document in question genuinely represented the last will of the testatrix but considerations of policy and principles "transcend the equities ofthe particular case". ‘The éerifcate required by Section 2()(@Xiv) is peremptory - strict compliance otherwise the willis invalid ‘The certificate is a requirement for the proper execution of a Will. The certificate need not be completed at the time of execution but must be completed before a Testator's death, ‘The Testator's signature must appear atthe end of the Will - See Kidwell v The Master 1983 (1) $A $09 (B) - A Will failed because the Court held that a space of I7em below the attestation Clause was too great for the signature to be said to be at the end of the Wi ‘The certifying officer may act in capacity as witness and as a certifying officer +The Certifying Officer mus state his capacity and failure to do so venders the eetiicate defective andthe Will valid - Radley v Stopforth 1977 (2) SA 516 (A). In Jelley v the Master 1990 (4) SA 759 (N) the Court held that a certificate signed by a person as "a practising attorney" did not eomply with the statutory requirements of the Wills Act, no matter that every such altomey is by legislative enactment a Commissioner of Oaths, ‘The attestation clause is not a requitement of the Act and therefore unnecessary. -AMENDMENTS TO WILLS (SECTION 2 (1) (b) ) Amendment means any deletion, addition, alteration or interlineations, Section 2(2) provides that any amendment is presumed, unless the contrary is proved, to have been made after the will was executed, ‘The formalities of amending the will are contained in section 2(b) of the Act and provide that: | a the amendment must be identified by the signature of the testator or the signature of some other person made in his presence by his direction. . ». the signature must be miade, or acknowledged, by the testator and if made by some other person, also such other person, in the presence of two or more competent witnesses all present atthe same time, « the amendment must further be identified by the signatures of such witnesses made in the presence of the testator and if the amendment is signed by some other person also such person, a Ifthe amendment is identified by a mark or the signature of some other person in the presence and by his direction, a Magistrate, Commissioner of Oaths, Notary Public or Justice of the Peace, must certify 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, ‘On condition that the amendment is identified and properly executed in the presence of the certifying officer, he may attend to the certificate as soon as possible after the amendment has becn identified. ‘The Act is silent as to where this certificate must appear. However such certificate should clearly identify the amendment.‘There is no requirement in respect of the certifying officer, testator or witnesses or person signing on behalf of the testator signing all the pages of the will, The requirement is simply that they must clearly identify the ‘amendment. 3.4. REVOCATION OF WILLS ‘A will is revocable at any stage before the death of the testator since itis a unilateral legal act which consists ‘only ofthe festtor’s declaration of intent. A ill is regarded revoked ifthe testator revoked it animus revoeandi ith the intention to revoke the will. A will may be revoked expressly or tacitly. A testator cannot revoke his ‘wll orally not even in front of witnesses. 3.4.1, Change of Status ‘A change in status of a person does not necessarily mean that a person revoked his will. E.g marriage would not necessarily mean the revocation of a person's will, Roman Dutch law provided that when an unmarried person fgets married and has children then his will was considered to be tacitly revoked, This was however changed in ‘our law by the case of Shearer v Shearer's executors 1911 CPD 813, where it was stated that a testater's marriage has no effect on his wil. 3.4.2. Express Revocation Avwill may be expressly revoked in the following ways: 1) Where a testator makes a new will with a rovocatory claus, i. a clause in which he revokes expressly all previous wills. 2) Where an unmatried testator expressly revokes his will by means ofa subsequent ante nuptial contrac. 3) Consmon lavy has made it possible fora testator to destroy his will, wholly or in partie. by burning it or tearing it up of deleting his signature from it Fran v Fram’s Executors 1947 (1) SA 787 (W)} In Senckal v Meyer 1975 (3) SA 372 (1) it was held that the introduction of the Wills Act of 1953 did not mean that the legislature intended fo do away with the common Jaw rules regarding revocation of wills. In this ease the testator wrote “cancelled” on both pages of an original copy of his will and confirmed it with bis signature. ‘The court held that the will was revoked, It should be noted that the is a difference between revoking part of one's will as opposed to deleting parts of ‘one’s will, Where itis considered that the testator only intended to delete part of bis will then it should comply \with al the formalities of amending a will, whilst this is not necessary in the case of revocation, 3.4.3, Tacit Revocation ‘Where a testator dies leaving various wills but do not expressly revoke the former, itis possible that they will all prima facie be valid and they must all be read together and reconciled as far as possible in order to give effect to {he testator’ actual intention, Where a provision in a later willis in conflict with a provision in an earlier will than the effect must be given to the provision inthe ater will. (Price v The Master 1982 (3) SA 301(N) ) 344, COMMON LAW PRESUMPTIONS “The following are legal presumptions the court considers when deciding whether a will has been revoked 1) Ifa will was destroyed by the testator there is a rebuttable presumption that the testator revoked the ‘will withthe intention of revoking it. (Wynne v Estate Wynne (1908) 25 SC 951 960) 2) Where a will which was in the teslator’s possession cannot be found after his death, there is a rebuttable presumption that the testator has destroyed the will with the intention of revoking it, hrowever there is no such presumption ifthe will was in the safekeeping ofa third person. 3) There is also 2 rebuttable presumption that testator has destroyed his will with the intention of revoking, Bit if the will was drawn up in duplicate and the copy of the duplicate which was in the testator’s safekeeping cannot be found after his death, This presumption falls away where it can be proven that the testator destroyed his will by mistake, in anger, drunkenness or insanity. The rebuttability of the presumption depends on the circumstances of each ease. Ex Parte Lutchman 1951 (1) SA 125 (ty 3.4.5. REVIVAL OF A REVOKED WILL A testator may revive a revoked will wholly or patially as long asthe revoked willis stil available, A later wil ‘ay indeed breathe life into an earlier will. (Moses v Abinader 19$1(4) SA 537 (A) ) The revoked will which is ‘holly or partially revived by the reviving willis deemed to be revived by the reviving will from the moment at which the reviving will, in whieh it is deemed to be incorporated, is exccuted. The onus of proving thet a evoked will has been wholly or partially revived by a reviving will rests withthe person who alleges this, 3.4.6, Requirements for the revival ofa revoked will 8) The will that must be rovived should have been properly executed in accordance with the formalities applicable when it was made, b) The revoked will must still be in existence ©) ‘The revoked will should be revived by a new will 4) The reviving will must be properly execated in accordance with the formalities prescribed. 3.5, THE CAPACITY TO MAKE A WILL The general rule is that all persons of the age of 16 and above have testamentary capacity. There are a few exceptions namely: 4) insane persons ») intoxicated persons this is the case because they are not in possession of al thir facilities when making a will. A person must be able to appreciate the nature and effect of his testamentary act. ‘To make a will one must have the fiee and 10 dispose of his property by will he mast have the animus festa an must do so voluntarily [Spies v Smith 1957 SA 539 (A) 546-547} Our law provides for freedom of testation principle however there are exceptions to this rule which are a pactum ssuecessorium contained in an antenuptial Contract and where massing takes place and the survivor has adfated. 36, THE CAPACITY TO BENEFIT UNDER A WILL All person whether natural or juristic, born or unbom may be a beneficiary under a will, However common law and the Wills Act 7 of 1953 exclude certain persons from inheriting, 3.6.1, Persons who may not inherit in terms of the Wills Act a) The writer of will Common Jaw dictates that the person who writes the will of another person fs not able to receive a benefit there from unless the testator confirms the bequest 0 the writer immediately afler the completion of the will. Ex Parte Thole 1968 (1) SA 155 (N) This provision relates to the person who ‘wrote the will in his own handwriting but not o a person who merely dictated the contents ofthe will or a person who is typing the will. Smith v Clarkson 1925 AD 50) Van Rensburg v Van Rensburg 1963 (1) SA 305 (A) ») The witnesses and the person who signed the will by direction of the testator=3.6.2. » 9 4 Section $ and 6 of the Wills Act provides that a person who signs the will under the direction of the testator oF who writes out the will or any part thereof in his own handwriting or the person who is the spouse of such person atthe time of the execution of the wil is disqualified fom receiving any bene! under the will. The Court may declare such person or his spouse competent to receive a benefit under a ‘will ifthe cout is satisfied thet the person or his spouse did not defraud or unduly influence the testator in the execution of the will. Such person or his spouse will not be disqualified from inheriting under the will is he would have inherited intestate gad the testator died intestate. A witness or bis spouse will not be disqualified from inheriting under the willis the will was signed by at least two ether competent ‘witnesses who will not receive any benefit under the will. The nomination in a will of a person as executor, trustee or guardian is regarded as a benefit to be received by such person under that will ‘Thus if such person signs as a witness, writes out the will or signs by direction of the testator, the nomination will not be vali Persons who may not inherit under common lay "The person who murdered the testator ‘This comes from the Roman Dutch prineiple which states “Die Bloedige hand erf net” , meaning the bloody hand does not inherit. Ex Parte Wessels and Lubbe1954 (2) SA (0) 230:The murderer can however inherit from someone other than his victim. ‘The person who negligently caused the death ofthe deceased Common law dictates that a person who has negligently caused the death of the deccased is incompetent to inherit fiom the deceased. Casey v The Master 1992 (4) 505 (N) in this case a husband accidentally killed his wife witha firearm whilst slightly under the influence of alcohol, The Court held that he could not inherit from his wife as his conduct was morally reprehensible ‘The blameless killer of the Testator -insene persons have the right to inherit as they cannot be held accountable for their actions. A spouse married in community of property, who murdered the other spouse-A husband who kills his wife to whom he is married in community of property only receives half ofthe estate by virtue of the marriage in community of property and is not entitled to inherit from his wife's half share A person who conceals a testator’s will can also not inherit fom the testator. Yassen v Yassen 1965(1) S.A.438. 1 ‘A Person who unduly influenced the testator in order to receive a benefit in terms of his will 3.7. THE CAPACITY TO WITNESS A WILL A person qualifies to be a competent witness toa will when he is » ») ® 14 years and above ‘Abie to give evidence in a Court of law [Able to write as he has to sign the will and is not allowed to do so by the making of a mark 4, CONTENT OF WILLS 4,1, There are two types of beneficiaries namely: d) Legatees- these are persons who inherit a specific asset or bequest. This specific asset is called a legacy. Heits- these are persons who inherit all the assets or a share of the assets or the residue of an estate ‘This is known as an inheritance.‘Thus legatees are in a more privileged position in that they’ inherit specific assets and if after the specific assets have been distributed anything remains then only ate the heirs to inherit, if nothing remain then the heirs will receive nothing, Heirs can be found in both intestate and testate succession however legatees are only found in testate succession, It is important to note that legatees only inherit after the creditors have been paid and only after all the legates bave received their legacies can the heirs receive their inheritance if there is anything left, ‘The Jegatee does not inherit the debts ofthe testator unlike an heir who has to inherit the debt as well in order o inherit Heirs may be forced to account for those assets they have received from the testator during his lifetime, this called collation, whilst the legatees ate never obliged to do so. A testator may also leave a pre-legacy to 2 Tegatee which is a special bequest which enjoys preference over all other bequests. A legacy may be subjected to a bequest price which isa stipulated price thatthe legate has to pay before he can inherit his legacy. He then has a choice to accept or refuse the legacy as one cannot take a benelit under a will without taking the burden it imposes. 4.2 Failure ofa lacy ‘A legacy falls in the following circumstances: a) Where ademption (Ademptio) takes place, this is where the testator alienates the object of his legacy luring his lifetime. This is said (o be a tacit revocation of the legacy. Barrow v The Master 1960 (3) SA 253 (E) 257 ) Where the legatee dies before the legacy vests in him, ©) Ifthe legatee repudiates the legacy @) Ifthe legatee is incompetent of inheriting under the will ©) Ifthe bequeathed thing is lost or destroyed 1) Ifthe festator’s estate is insolvent 8) Ifthe asset bequeathed as a legacy prior fo the testator's death is acquired by the legatee 1h) Ifa legacy is bequeathed for'a specific purpose and it becomes impossible e.g. «farm is bequeathed to 8 religious institution where it is subject to an option to purchase in favour of a third party. Fx Parte Adams NO 1966 SA 135 (C). Where a legacy fails it falls back into the estate and itis then awarded to the Heirs, 4.3, CONDITIONAL AND UNCONDITIONAL BEQUESTS. ‘A bequest can be made subject 10 a condition which is an unknown certain event whereas an unconditional bequest would be a bequest without any conditions attached however it may be subject to atime elause. A time clause can be either terminative or suspensive, A suspensive time clause is where the beneficiary will only enjoy the benefit at certain future time. Eg. J Teave my farm fo my son but he is not to take it before he is ‘A bequest subject to a rosolutive time clause is one in which the beneficiary's rights are terminated when a certain future time arrives. Fg. Heave my house fo my wife when she dies i is 10 go 1o the Cancer Association. A conditional bequest is one which depends on a future event which is uncertain, inthe sense that it may or may not occur in order for a condition to be valid it should not be illegal. There are two types of conditions namely: 8) Resolutive conditions This is where the condition is made to terminate ifa particular uncertain future event takes place Eig J leave my house should she remarry my house should belong to the cancer association. Is not certain if the widow will remarry but if'she does not the house remains hers end if she does romany she loses the house. A resolutive condition is of no effect if there is no hand over to someone else on the fulfillment of the condition, Ruskin v Sepie 1966 (2) SA 306 (W)¥) Suspensive conditions This is one where the beneficiary does not get a vested finally established right to the benefit bequeathed unless and until a particular uncertain future event has taken place. E.g I leave my house 10 iy wife is she wins the national tennis game. Any inheritance which is subject to a suspensive Condition vests in the heir only on the happening ofa future, uncertain event. Van der Merwe v Van der Mersvo's Exccutors 1921 TPD 9 at 14-19. 44, MODUS ‘A testator is fice to burden a bequest with « liability and the beneficiary is then expected to do something oto deliver something, Eg. my son inherits my house however my’ wife has the righ! fo live therein until her death. Wt is important to note that this burden is called a mods. Inthe ease of a modular clause, the beneficiary receives his vested right immediately but subject to the accompanying condition. Wessels v DA Wessels en seuns 1987 {G) SA 530 (1). In the case of conditonel bequest, the vesting of rights is postponed until the condition hes teen complied with, A modus has a big infhience on the vesting of the bequeathed benefit in the heir or legatee concemed, unlike in a suspensive condition, “There is a presumption inlaw that when one is not sure whether a provision in a will fs @ modus or suspeasive coniion itis a modus since @ modus is unconditional. Jewish Colonial Trust LTD v Estate Nathan 1940 AD 163 at 177 45, DIRECT SUBSTITUTION This is where the testator appoints a beneficiary to inherit a benefit end atthe same appoints another beneficiary to take the place of the frst mentioned heir or legatee. Eg. J bequeath my farm to Peter but if Peter carmot or will not inherit J bequeath my farm to Anna, Substitution may take place either in the sltemative {Giect substitution) or one beneficiary after the other (Fideicommissary substitution). 4.6. FIDEICOMMISSARY SUBSTITUTION “This occurs where @ testator directs that one person inherit his assets on the condition that it must pass to someone else at a certain future date or at the occurrence of a specified event, this process creates @ fideleommissom. Eg, 1 bequeath mp farm to Ben and on Ben's death f bequeath my farm t0 Carlos. The frst successor is called the fiduciary and every beneficiary to whom the benefit passes afler a certain time or upon the fulfillment of a certain condition is called a fideicommissery. The difference between fideicommissary substitution and direct substitution is that with fideicommissary substitution there és always a succession of beneficiaries whilst with direct substitution either one or the other inherits, they do not succeed each other once ‘one of them inherits, the other loses all hope of ever inheriting ‘There is a presumption against fideicommissary substitition in favor of direct substitution because fideicommissary substitution creates a burden on the fiduciary as it limits his ownership except that of the eventual fideicommissary. Ifthe fideicoumissary dies before the fiduciary the fideicommissum expires and the fiduciary becomes the owner however he may not alienate the property unless the court directs otherwise 46.1, THE FIDEICOMMISSUM. 'A fideicommissum is ereated when a testator leaves his property to a fidueiary subject to the burden of handing Cover in full ownership to a fideicommissary at a certain time or upon fulfillment of a condition. 4.6.2. Restrictions on fideicomissa Before 1965 fideicomissa would be created for en unlimited number of generations. Ex Parte Barrand 1929 TPD 276, BC Pade Botha 1956 (4) SA 471(C); Schoeman v O*Neil 1965 (3) SA 359 (A). However in terms of the provisions of Section 7 of the Immovable Property Act 94 of 1965 this is now limited to two successive Eenerations in the case of immovable property. Fideicomissa over movable property are still effective for as jong as the testator wishes. The courts have the power fo remove or modify restrictions on the alienation of ”mmovable property both at common Jaw and by statute. a) Common Law ‘Common Jaw prescribes that a sale or mortgage may be authorized for reasons of necessity and only with the consent of the beneficiaries and only if they are all majors itis sufficient however if they are sinors that the Master of the High Court as upper guardian of all minor children may consent on their bbohaifif the sale or mortgage of the property is for their benefit. Ex Parte Marais 1960 (2) SA 197 (G), arte Paudas 1965 (1) SA 52 (W) b) Statutory Law ~The Immovable Property Act ‘The following sections provide that the court has the statutory power to remove or modify burdens on property, including fideicommissa: 1) Section 2(1) A beneficiary can apply to court for the removal or modification of the restriction on the ground that such removal or modification will be to the advantage of any present or future beneficiaries. Ex Parte Murison 1967 (2) SA 617(0) 2) Section 3 Where the Court finds that the sheres of the immovable property are too small for beneficial occupation or beneficial use is prevented by a prohibition against subdivision, or because circumstances have arisen which the testator did not foresee the court may remove or modify any such restriction or give any other appropriate order, Ex Patte Stianack 1974 (2) SA 69200) 3). Seotion 3(1)(4)—The Court may remove or modify a restrict in the interests of the persons referred to in Section 2(1) . n if it will be inthe public interest or 4.63. VARIOUS FORMS OF FIDEICOMMISSA 8) Conditional Fideicommissa This is where the testator leaves property to one beneficiary subject to the condition that if a particular uncertain future event takes plac, the property isto pass to another beneficiary. If the uncertain future event does not take place then the beneficiary will remain the owner and when he dies then the | property will remain part of his estate. E.g.“I leave my farm to my wife and should she remarry the farm is to go to my son, b) The si sine liberis decesserit Clause (if someone dies without children) ‘This is where a testator bequeaths his property to another and stipulates that ifthe beneficiary dies after {he testator without leaving any children the property of the estate must pass toa third person, Eg. [leave my farm to my sister, is she dies without leaving any children then the farm must go to my son. ‘The children mentioned in the clause need not be descendants of the deceased where the si sine liberis decesserit clause is concerned. lx parte van Tonder 1978 (3) SA 369 (E), Du Plessis v Strauss 1988 (2) SA 105 (A). ©) The Fideicommissum Residue ‘This is where the testator bequeaths property to @ beneficiary, subject to the condition that as much of it as may be left at the time of the beneficary’s death is to devolve upon another person. Eg. I leave my entire estate to my wife and whatever is left upon her death must be awarded to our children, The Novella 108, a statute of Justinian dating from the 6" century AD, states that the fiduciary may only alienate % ofthe property and the other Y% must bo let forthe fideicommissaries. However where 18the fiduciary has an implied power of alienation and the fideicommissary devolution only applies to what remains afier the death of the fiduciary the intention of the testator takes precedence over the Novella 108. If the fiduciary provides security for tho eventual payment of the compulsory quarter, be may alienate the whole fideicommissary property. Firebrace v The Master 1960 (2) SA 368 (E) ‘The fideicommissum residue therefore constitutes an exception to the general rule that the fiduciary ray not alicnate the fideicommissary property 4.64, THE FIDUCIARY ‘The fidueiary may not alienate or mortgage the fideicommissary property except where he obtains the cooperation of all the fideicommissaries where they are all majors. However a fiduciary may alienate his fiduciary interest. The offeet would be that ownership will pass to the buyer however the original tenminative ‘condition will still be effective. Thus the buyer would lose all his rights to the property on the death of the original fiduciary. Bx parte Wessels 1949 (2) SA 99 (0) 104, ‘The fideicommissary property does not form part of the joint estate where the fiduciary is married out of community of property however the interest there from coés form part of the joint estate of the fiduciary. Bamett y Rudman 1934 AD 203, Ex Parte Pierce 1950(3) SA 628 (0) 631-632. Where the testator survives the fiduciary the fideicommissary acquites a vested right in the property on the death of the testator. Ex Parte Die Standard Bank 1974 (2) SA 310 (T) 4.6.5, THE FIDEICOMMISSARY ‘This is the person who inherits after the fiduciary, he need not be alive at the time of the testator’s death, however he should be alive or at least conceived atthe time the fideicommissary property is to e transferred 10 him. Where the fideicommissary dies before the fideicommissary property can be transferred to him then the fideicommissum falls away and the heirs ofthe fideicommissary has no claim as the property then becomes the property of the fiduciary wino then has fall ownership ofthe fideicommissary property, 47, USUFRUCT A vsufruct is created when a testator gives a right to the income of a specified asset to a person and the right of ‘ownership to someone else. The person who acquires the right to use the property is called the usuifiuetuary and the person who acquires ownership is called the dominus or remainder man, Eg. [leave my farm (o my son however my wife is to have lifelong usuffuet of the farm, “The son is entitled to ownership of the farm however he may not enjoy it until the testator’s wife dies. If the son predeceases the wife of the testator then the heirs of the son has the right of ownership however they do not have the right of use as this still vests with the testator’s wife. The son’s right is unconditional although he does not Ihave the right of enjoyment whilst the testator’s wife has a limited real right, 4,8, DISTINCTION BETWEEN FIDEICOMMISSUM AND USUFRUCT Although a fideicommissum and a usufiuct appear to be similar, there are fundamental differences between the ‘ovo institutions. ‘The basic principle is thet in a fideicommissum, ownership vests in the fiduciary and later passes to. the fideicommissary when the condition is fulfilled or if it is not fulfilled, then it forms part of the estate of the fiduciary. In a usufruct, the usuftuctuary never has ownership, only a real right in the property. Ownership of the property 9remains in the bare dominium holder who cannot be the usufructuary. If the usutructuary does become owner, then the usutruet ceases by merger, The basie question to be answered in a doubtful cas is therefore whether the testator intended the ownership to vest in the second bencficiaty at the time ofthe testator's death or at some later time, If ownership is intended to vest as atthe date of death then a usufiuet and nota fiduciary interest is ereated. If ownership is intended to vest inthe first holder immediately subject to the condition that ifhe dies before the second holder, it will not fall into his estate but wil pass to the second holder, then the bequest will be a fideieommissum, Although if itis not clear whether a fiduciary substitution or a direct substitution was intended, then there is a presumption against it being a fideicommissum, however there is no such presumption if there is doubt as to ‘whether a fiduciary interest or a usnfiuct was intended, 5. PRIOR TO THE DRAFTING OF WILLS Before drafting a will for your client, itis advisable to take several matters into consideration 5.1. CONSULTATION ‘The following aspects should be bome in mind when your client consults you to drawy up his will, a. Provide sufficient time for the consultation. b. Let the client feel at ease and win his confidence. © Give the client the opportunity to ask questions, 4. Answer the elients questions without bombarding him with technical terminology; communicate with hima as far as possible on a basis of equality. Explain the importance of the will and emphasise that it is a free testamentary disposition and also explain what his rights are, £. __iseuss the choice of an executor and the question of provision of security by the executor. & Discuss the implications of a testamentary trust where minor children are involved, h, Discuss the choice of guardian or guardians where minor children are involved, The client would like to know wi discuss the professional fee with him, tthe preparation of the will will cost hi i ‘Wam your client not to revoke the will or amend it in any way on the do-it-yourself basis, k, Point out o your client the importance of puting the will in safe custody and advising members of the family where itis being kept. Ascertain the wishes of the testator. i Exactly what does he want? ii, Cam his wishes be implemented in practice? Are his wishes in the best interest of his beneficiaries? 5.2. GET CLARITY ON THE STATUS OF YOUR CLIENT, 2%a Competency to make a will (Section 4 of the Wills Act No 7 of 1953). D Marital status, Unmarried, Married (place and date). In community of property Cut of community of property. “Marriage in terms of foreign laws-details of factors applying to the marriage, Common law marriages. Hindu or Muslim marriages. ‘Traditional eustomary unions of black people. Place and date, “Apart fiom the customary union have they also contracted a civil marriage and if so where, when, with whom and what isthe matrimonial regime of this marriage? d.—_ Previous matriages. If the client was previously married, obtain full deteils as set out above a5 well as the following, information: Dissolved by death. Does the will of the predeceased spouse contain any conditions which will affect the ability of the ‘lent to make a will or his fnsneial position and ifso to what extent? (Obtain a copy of the previous will. ich have been registered Does the will of the predeceased spouse contain any limiting conditions w against the ttle deed ofthe client Dissolved through divorce, Does the final divorce order, or the settlement agreement between the partes, contain any conditions which might affect the financial position of the client or the preparation of the proposed! new will? {obtain a copy of the divorce order and the settlement agreement if applicable). 5.3, A COMPLETE INVENTORY OF THE CLIENT'S ASSETS, It must be considered that apart from a complete account of the clen's assets a complete statement of his Tiabilfes and obligations must also be made. It is useful to write down other information with regard to the ‘clients personal and financial position which although not necessary for preparing the will bu may be useful for the eventual administration of the estate, 6. DRAFTING OF WILLS Freedom of Testation is the freedom fo execute a will in compliance with the prescribed formalities whereby @ testator ean leave his assets to whomever he pleases, “The Wills Act preseribes the formalities to be complied with in order for a Will o be valid. The Wills Act does not prescribe the content of a valid Will. The validity of a Will, will not be affected by the inclusion or non- jnelusion of any clause. There is accordingly no clause which must appear in a Will for it to be valid i.e Ey‘vomination of an executor, nomination of an heir, attestation clause, ete. There is no requirement that the will »must be dated but for practical reasons in order to determine the last Will of a deceased, ths is advisable, 6.1. JOINT WILLS AND MASSING A joint Will isa document containing the Wills of two or more persons set out in one document for convenience. I isthe separate Wills of the partes and consequently each Testator is a liberty fo revoke or alter bis Will without the knowledge or collaboration ofthe other ‘Testator. It may operate as the Will ofthe first- dying and it may also operate as the Will of the survivor, fa joint Will provides forthe consolidation of some or ll ofthe property ofboth testator into one unit forthe Purposes ofa joint disposition toa third paty upon the death ofthe frst-dying, or upon the death ofthe survivor, and also confers a benefit out ofthe property of the first-dying upon the survivor, then, ifthe survivor adiates, itis said that a massing has been effected ‘There is a presumption against massing but one must be careful not to create a situation imputing a massed estate such as where: ‘The first-dying disposes not only of his own property but also of that of the survivor; and ‘*The survivor accepts some benefit under the Will ofthe frst-dying Testator, ‘Then it will be said to be a "massed estate" 6.2. VESTING Unless there isa clear indication to the contrary in the Will, every bequest is presumed to be unconditional and vests in the beneficiary on the testator’s death. ‘Vesting gives the beneficiary the right to claim the benefit from the estate which is only payable after the executor’s Liquidation and Distribution Account has lain free from objection for inspection ive,(dies cedii) ‘occurs immediately after death but time for payment (des venit) is only due after compliance with section 35(12) of the Administration of Estates Act. B.g, Ifa cash legacy is bequeathed the legatee will not be cntitled to interest from date of death until date when he is entitled to claim payment unless the testator has specifically 50 directed in the Will 6.3, PROHIBITIONS AND FORFEITURES A prohibition or forfeiture is in itself ineffective unless it becomes enforceable against the beneficiary penalised, and it can only be enforced if the Will provides for a substitution of another beneficiary on the breach of the Condition, If there is no substitution or "gift-cover" the prohibition or forfeiture is said to be "nude" and wil hhave no effect. G4. PER STIRPES AND PER CAPITA Per stinpes means a distribution by representation e.g, where the bequest is left to the issue per stizpes of A and 8, one balf must be divided among the children of A and one half among the children of B. If either A or B has died leaving children, those chikdren will receive a pro rata share of what their parent (A or B) would have received had be (A or B) been alive at date of death ie, IA is survived by 3 chien, his children will receive a 3¥ of the % share that he (A) would have received (a sixth share each). Per copita means a distribution in equal shares among the persons entitled to take e.g, where a bequest is left to the children per capita of A and B, all the children of A and B share the bequest equally, 1fa ehild has 2predeceased that child's share is lst. It is the number of children in the class who are alive at date of death that ‘will participate to the exclusion of any person not inthe class or remoter descendants 65, ADIATION AND REPUDIATION Every beneficiary has aright to decide whether or not he wishes to inherit. Choosing (or electing) (0 inh ‘known as adjation, and declining or rofusing to inherit is known as repudiation. 6.6, LIMITATION ON FREEDOM OF TESTATION 646.1. Farm Property ‘The provisions of the Sub-division of Agricultural Land Act No. 70 of 1970, limit the transfer ability of farm property to more than one person without the consent of the Minister of Agriculture. Therefore an estate evolving testate or intestate on 2 or more beneficiaries cannot permit the transfer of farm land to the beneficiaries jointly or in undivided shares. The Act prohibits co-ownership subject to ministerial approval. A Redistribution Agreement may be concluded or the farm property must be sold. t may be sold to & Trust or company resulting in one legal owner of which the heirs may be beneficiaries or sharcholders and thas retain ‘heir interest in the property. Transfer Duty will however be payable as a result ofthis. as 6.62. Proceeds From Pension I Section 37C of the Pensions Fund Act 24 of 1956 provides that any benefit payable by a Pension Fund in respect of a deceased member does not form part of the member's estate, If within a year of the member's death the ftnid discovers a dependant of his, the benefit has to be paid to the dependants (in proportions deemed equitable by the business manager of the fund). If no dependant is located ‘and the member has designated in writing a nominee, who is not a dependant, payment shall be made to the rominee subject to the condition that if the liabilities of the estate exceed the assets, the difference, up to the value of the benefit, shall be paid to the estate to create solvency and only the balance, if any, goes to the rominee. 663, Fideicommissum In Perpetuity. Section 6 of the Immovable Property (Removal or Modification of Restrictions) Act No 94 of 1965 limits the number of fideicommissa that may be created in respect of immovable property which, notwithstanding the terms of a Will, is limited (0 two successive fideicommissaties, ic. the property will be transferred to the third beneficiary who will then acquire full ownership notwithstanding the creation of subsequent fidefcommissa, The prohibition only applies to immovable property. 6.64. Offending provisions in wills and testamentary trusts Namibian Law recognises freedom of testation. Your will may deal with your assets as you please and you may leave it to whorasoever you please. The bequest in a Will however may not be illegal, impossible, immoral or against public policy (Oosthuizen vs Bank Windhoek Ltd NO 1991 (1) SA 849 (NHC)) and be unconstitutional (Minister of Education and Another vs Syffets Trust Ltd NO 2005 (4) SA 205 (C)), In the Spfiets ease, a testamentary Trust provided for bursaries to students of European descent excluding Jews and females. The Court found that the current public policy, and not that which prevailed in 1920 when the Will was executed, ‘was relevant and that the limiting provisions constituted discrimination based on race and gendes and was unfair to public policy. The Court ordered that the Trust Deed be amended by the deletion of the discriminatory provision. It is also submitted that a provision in a Will which excludes the jurisdiction of the court by ‘specifically providing that any beneficiary approaching the court for assistance would forfeit his benefit in terms 23of the Wil, be invalid as being contrary to public policy (Barclays Bank DC & O NO ys Anderson 1959 (2) SA 478.(0) 6.7. Massing ‘Massing takes place when two or more people makes a joint will or mutual will in which they add a part or whole of their respective estates to cach other's estate and jointly disposes thereof. It is important to ascertain that the testator intended massing to take place as there is a legal presumption against massing, meaning that if any doubt exists as to whether massing should take place or not, massing will nt take place. See D’Olyly- John vs. Lousada 1957 (1) SA 368 (N) 373. In order for massing to take effect it is imperative that the first dying testator should have disposed of his or her ‘own estate as well as the estate ofthe survivor. Ex Parte Gouws. . There are two types of massing : a) Common law massing b)_ Statutory massing (Section 37 of the administration of Estates Act 66 of 1965) 6.7.1. Common law massing In the case of common law massing the surviving party or parties need not obtain a limited interest and fall ownership of the estate assets can pass over (o the survivor(s). Eg, a couple married in community of property’ mass their joint estate worth N§ 500 000 in a joint will, The farm worth S300 000 is bequeathed to the surviving spouse and the residue ofthe joint estate to their child, If the surviving spouse adiates, she acquires full ownership of the farm and not a limited interest, The child will inherit the NS 200 000 residue of the estate, free from any limited interest. ‘Common faw as developed by the eourts applies to cases which do nat fll within the scope of Section 37 (i.e. ‘massing in @ will of any only testator) 6.7.2. Statutory Massing Statutory massing takes place where: 4) A joint will nominate ultimate beneficiaries in rospect of the joint property. 'b) The surviving testator(s) receives a limited right over the massed property ; and ©) The surviving testator(s) adiates the benefit, fements in order for Section 37 of the Administration of Estates Act 66 of 1965 to ‘The following are req operate: 1, The survivor must adiate 2. The survivor should receive a limited interest such as a usufiuet or a fidetcomn massed property. 3. There must be a joint or mutual will. 4. There must be two or more parties to the joint or mutual will and they need not be married to each other. 5. The property of each testator must be consolidated and all or part thereof must be disposed off by the mutual will ‘The survivor must accept the benefit bequeathed ‘The deposition must take place after the death of the first dying testator. ‘The survivor relinquishes his share in their massed estate. sum in respect of the m4. CLAUSES IN WILLS ‘The Wills Act does not prescribe the content of a Will. There is no clause that must be included or excluded to validate a Will, A Testator is given freedom of testation subject to the condition that the clause does not impose tn impossible illegal or immoral condition which is contra Bona mores, Such clauses will be taken as being pro non script. When interpreting a will, care must be taken in determining what the intention of the testator was in a given ‘case. To this end the drafting of the will itself will be paramount and the drafters of wills are urged to use plain Tegal language that can adequately express the intention ofthe testator without having 1o make use of extrancous evidence or rules. Bear in mind that when interpreting a will, words can only be read in by necessary implication (Lichenberg, NO v MGK Bedryfamaatskappy (Ems) Bpk 2002 4 All SA 322 (SCA)). What is stated below are some examples of clauses that may be ineluded in a Will. 1. ‘THE HEADING “The Will wil usually contain a heading citing the testator by his name and also by’a pseudonym o alias or other name by which he is generally known. It;may contain his identity number. The Will must be identified as that of the deceased. 74.2 REVOCATION AWiill should contain a revocation clause: eg. " [revoke all previous Wills". [Where there is no written revocation all the previous Wills of the deceased will apply. A later Will in conflict ‘with an earlier Will, by implication, revokes the earlier provision on the assumption that the later Will Tepresenis the testator’s ast Wishes. Clauses that are not inconsistent with each other, or in conflict will al apply: A testator may also revoke his Will by destroying the Will, provided thatthe act of destruction is intended to revoke the Will aninus revocad. “There isa presumption that a testator has destroyed his Will animus revocandl if it was known to have been in his possession but cannot be found aftr his death, or is found to be destroyed. There fs however no such prestimption if the Will was in the keeping ofa third person. The presumption is rebuttable 7,13. THE APPOINTMENT OF EXECUTOR / TRUSTEE ‘Testators very often nominate a family member, such as the spouse or a child, as the executor of the estate. Sometimes a testator will nominate his attomey, or accountant, to act as the executor or co-executor of the state, Where a family member, snd not the attomey, has been nominated as the executor, unless the family mnember (parents, surviving spotise, or child) is able to satisfy the Master that they have the skill and ability to ‘administer the estate, the Master will require security unless such family member is assisted by an attomey or Someone with the requisite skill 1o assist with the administration of the estate, In such a case the attorney acts as agent and attends to the administration under Power of Attorney. The attorney usually will agree to Jimit his fee to the executor’s fee prescribed by tariff but is not obliged to do so. It is advisable, by Will, to include a substitution in the event of the nominated executor being unable or "unwilling to eet or having been appointed cease for any reason to act. 228 "I nominate "A" and failing him "B" and "C" or the survivor of them, to be the Execwtors of my Will and Trustees of my Trust." 7.1.4. SECURITY Every executor must provide security to the satisfaction of the Master for the proper performance of his functions. If any default is made by the executor in the proper performance of his duties, which results in the estate suffering any loss, the Master may enforce the security and recover from the executor and his sureties the Joss to the estate. ‘The Master may waive the obligation of providing security where the nominated executor is the parent, surviving spouse or child of the deceased or where the will specifically dircctshimn to do so (section 23). Please be mindful that the Master's waiving of the obligation is simply to suspend the obligation of providing security, because, on the executor of his surety’, insolvency, emigration or for any good reason, the Master may, before or after the grant of Letters of Execuiotship, call for security and failure to provide security, will result in Letters of Bxecutorship not being granted or the executor being removed (section 54 (1)(b)(i). e8 “The Master of the High Court is directed to dispense with the necessity of my Executor furnishing security for the adiinistration of my estaie" 7.15. PROFESSIONAL FEE ‘The Executor occupies a fiduciary position and must not therefore engage in a transaction by which he will personally acquire an imerest adverse to his duty. Its for this reason that the executor who acts on behalf of the ‘state ina professional capacity cannot charge fees for the work he may perform in that capacity, ‘Ths it has been held that an executor isnot entitled to fees for acting for the estate in his capacity as attomey, ‘auctioneer or accountant. So strict isthe prinesple that even ifthe estate is successful in a legal action and costa fate awarded against the other party, they canmot be recovered by the attormeyiexecutor except for his disbursements. Ifany fees are recovered by the executor they must be paid into the estate, Meyerowitz par 14.6 ‘The’ Will may make provision to include a professional fee for work attended to by the executor in his profession i.c. an executor who is an accountant and who completes the tax retums of the deceased or an executor who is an attorney and litigates on behalf ofthe estate, 4 "I direct that my Executor shall be entitled to charge in addition 10 the Executor's remuneration for his administration of my estate his professional fees for professional work attended to in that profession during the course of his administration." Section 39(4) of the Administration of Estates Act provides that an Executor whois a conveyancer may charge his conveyancing fee in addition to his Executor’s fee in attending to the registration of, er the endorsement agains the Title Deeds of immovable property in the estate. 7.16. ASSUMED EXECUTOR ‘An Executor may not substitute or surrogate any other person to actin his place (Section 52). ‘An Exceutor may however, i'specfically authorised thereto by Will which has been registered and accepted by the Master, assume (co-opt) another as his co-exeeutor. It is not a common Jaw right and unless there is a Will Which specifically gives the right of assumption, Section 52 shall apply. 2g. "Tgive my Executor the right of assumption’. 267.1.1, EXECUTOR’S REMUNERATION - REGULATION 8 VAT is payable on the executor’s fee where the executor is registered as a VAT vendor. A difficulty arises where the executor is not liable for VAT but the agent (in this case the attorney) is registered as a VAT vendor. It is submitted the executor may be personally liable to pay the additional charge. (Meyerowitz Par 14.5) ‘The Executor is entitled to remuneration fixed by Will failing which the remuneration is determined according to a tariff. The tariff charge for the Executor’ fee is 3,5% of the gross value of the assets reflected in the Liquidation Account. The Executor is farther entitled to a fee of 6% of the gtoss value of income eamed after date of death, The Master miay "for special reasons" reduce or increase the Executor’ fee as prescribed - Section 51. Collie vs The Master 1972 (3) SA 623 (AD)) 748 DUTIES ‘The Executors and Trustees may be the same persons although their functions are different. The Executor is concemed with the administration and liquidation and the distribution of the estate property. The Executor ‘determines, values and validates the assets and liabilities ofthe estate which are then reflected in the Liquidation ‘and Distribution Account which the Executor must-draw. The difference between the assets and liabiltes.is distributed to the beneficiaries determined by Testate or Intestate Succession, If a beneficiary is a Trust, the Fxecutor will discharge his duties by transferring the assets to the Trustee who will then attend to the dninistration of the Trust in terms of the provisions, powers and conditions of the Trust whether same be intervivos or created by the Will. 7.1.9. LEGACIES ‘The net estate of n deceased person is distributed (after payment of the administration fees, Tiablites, Estate Duty and then future maintenance claims), by first paying pre-legacies and then the legatees. A legacy is the bbequest of specific property, movable or immovable, to a specified person/s, Trust or charity eg. "I bequeath the following legacies: 1) Asa pre-tegacy the sun of RY 000,00 t0 mp wife "NOTENOUGH SUE"; 4) The sum of RS 000,00 0 my cousin HAP TENGRAND; i iii) The swan of R2 000,00 to HARDIWORK CHARLENE on the condition that she is in my employ at the time of my death; iv) The sum of RI 090,00 to my uncle VERY SUPRISED The sunt of RS00.00 to my nephew "HAPPY HAFFAGEE". Interest is not payable on cash legacies unless the will makes provision for same. 7.1.10, THE HEIRS ‘The heirs succeed to the residue of the estate, It is in fact ftom the heirs share of the estate that payment of all expenses are paid including administration expenses, debts, maintenance, pre-Jegacies and legacies. eg. "| bequeath the residue of my estate to my wife failing her to the childen bora of our marriage by representation per stipes." 277.1.11, SIMULTANEOUS DEATH ‘We are living in dangerous times. Families are travelling by motorcer, by train and by aeroplane and accidents as a result thereof are common. Testators are often not satisfied to let the person whom he nominated as heir in his estate, determine in_ his own will how the assets inherited from the deceased should dev if the heir dies simultaneously with the testator or shortly thereafter. Spouses very often non sole beneficiary and should they die simultaneously in a motorcar accident, both estates ate intestate. The draftsman is very often requested to insert a clause in the will fo cover such an eventuality. A good example of problems which may oceur in case of simultaneous death of two spouses in the same disaster, is found in the case of Greyling NO v Greyling NO and others 1978(2) S.A. 144. The testators a husband and wife who were anarried in community of property had a joint will in which they stipulate that ifthe husband should be the first dying their one son will inherit all fixed property and farming implements subject to the usuffuet of his wife while she would inherit the remainder ofthe estate, Inthe following clause they stipulated that should the wife be the first dying the Iusband would inherit everything. In the following clause they merely stipulated that should they die simultaneously the estate will be divided on a particular basis between the childven. The couple were on occasion travelling alone and were involved in a serious motor accident. Mrs Greyling died instantaneously while Mr Greyling died in the ambulance on the way to the hospital. In Namibian law it is accepted that if two people died in the same disaster and there is no proof who died firs, it is considered that they have died simultaneously. In the Greyling case there was evidence to prove that they did not die simultaneously but the one after the other. This state of affairs had the result that the Greyling children got divided into two camps and the court was approached to interpret the word "gelyktydig* or simultaneously as it was used by the testators in the particular clause in the joint will, The court ultimately decided that with the ‘word “simultaneously” the testators have foreseen their simultaneous death in the same accident and that they \wanted to arrange their affairs accordingly. Should the "common disaster clause" used in the will have been described more properly this drawn out court case which must have been an expensive process, would have been avoided. When considering the eventuality of the testators dying sinutancously it should be borne in mind that where, as in most cases, the survivor has been nominated as executor, provision should be made for an_alternative executor. ‘There is no presumption in our lav arising from age or sex as fo survivorship nor is there any presumption of simultaneous death. The question is one of fact depending upon the evidence. Suivivarship is essential to inherit and is all important in determining beneficiaries. Ex parte Graham 1963(4) SA. 148. Although a joint willis the separate will of both testators, these wills are normally drawn up in such @ way as to be only the will of the first dying, the following suggestion can be used in order to provide for the death of the survivor as well. The nomination of executors will have to be worded so as to provide for the appointment in the estate of the surviver. ‘Survivorship is essential to inherit and is all important in determining the beneficiaries. e.g. "hn the event of our simultaneous death ar should the survivor of us die as a result of the same ‘calamity or accident which has been the eause of death of the first dying of us, or in the event of the survivor of us dying prior to the due date of distribution and receipt of payment of the fist dying’'s estate, or in the event of the swrvivor of us dying without having execuled a farther Will, then and ta any of the aforesaid evens, we hereby direct that our respective estates or the estate of the survivor of sus as the case may be, shall devolve upon ow children born of ou marriage by representation per stinges". or 28“hy the event of our simulianeous death or should the survivor of us die within a period of 180 days of the granting of Leters of Executorship in the estate of the frst dying of us, then our respective estates ‘ave o devolve as fellows: J. the Testator,, nominate my mother and father oF the survivor of then to be the heirs of my estate; ‘1 the Testatrix, nominate my aunt LUCKY DAME and failing her my cousin SECOND FIDDLE to be te heir of my estate" 74.12, FIDEICOMMISSA AND USUFRUCTS Both a usufiuctusry and fiduciary have the use and right to enjoy the property and to the fruits thereof, usually for the duration of their lives, and in both cases the property is ultimately to be enjoyed by another upon the happening of an event or the fulfilment of some condition. Both are entitled to the use of the property but either is generally allowed to alienate or otherwise dissipate the property unless a fide/commissum resid is ‘reated and in this event at least one quauter of the estate will devolve on the fideicommissary heir (unless the Will provides to the contrary). ‘The usufiuctuary heir can never acquire ownership of the property over which the usuffuct is granted. The usuftuetuary heir is given the tight to the use and to the fruits of the property but the property (bare dominium) is bequeathed to another. ‘A fiduciary however may acquire ownership of the property ifthe fideicommissary dies prior to the condition of vesting oceurring, [A fideicommissum residui creates the presumption thatthe fiduciary heir may alienate or dispose of %'s of the property during his lifetime but he is bound 0 transmit a % share of the property (or its value) to the fdeicommissary heir. It is important to note that the fiduciary heir is entitled to alienate the property only during his Hfetime, He cannot dispose of the property by Will. Where the testator wishes the heir to enjoy full rights of ‘ownership and the full use of the estate in his ifetime, this may be done by creating a fideicomnissum resi With clear and unambiguous terms thus negating the presumption of travsfer appearing the minimum of a Y to the fideicommissary heir. FIDEICOMMISSUM RESIDUI: ‘Ve appoint the survivor of us to be the sole and imiversal heir of the frst-dying, with full and absolute power to altenaae all or any portion of the estate - subject to the condition thal upon the death of the survivor whatever ‘shall be left of the esiate, ifany, shall devolve upon the children born of ow marriage failing whom their issue by representation per stirpes."" FIDEICOMMISSUM : "4 bequeath my estate fo A subject tothe condition that on A's death my estate will devolve on B." USUFRUCT: 1 appoint the children born of my marriage to CORAL JAY as the heirs of my estate subject fo the usufruct of CORAL JAY wil her death or remarriage”. In terms of section 44 of the Estates Act, a fiduciary or a usuffuctuary, even if such fiduciary or usufructuary is the natural guardian, must furnish security to the Master if the ultimate heirs are minors. Under common lave, major fideicommissary or bare-dominium heirs can demand that the fiduciary or usufiuctuary furnish security 2»{or the ultimate payment of the amounts duc to them. It is therefore advisable forthe fiduciary or usufructuary to be exempted from furnishing security. “My wife shall not be required 10 furnish security for the payment of the amounts due to our children or their issue." NB: There is a general principle that Testementary Bequests are unconditional and accordingly there is a sebuttable presumption against the creation of a fideicominissum. 7.4.13 HEIRS TO INHERIT FREE OF COMMUNITY AND ACCRUAL SYSTEM €-8 "Should any person who will benefit under this my Will be married or marty or remerry at any time in the Sature in community of property or subject to any law of accrual, or be invalved in ay permanent relationship. 2% evil union resulting in their partner claining acquiring any rights to their estate, then nonwitistandiig such community of property or acerual or permanent relationship or civil union, the benefis payable 10 hint tunder this Will, including any interest, income or profs from such benefit shall devolve and belong fo him personally and shell not form part of any such community or accrual or the righs and claims of any parmer in 4 permanent relationship or civil union” 7.1.14, COLLATION Collation is based on the presumption that testators wish to benefit their descendants equally in life and in death ‘This presumption is rebutable, and the testator should indicate in his or her will if he or she wishes to rebut this presumption. This is normally done by stating tht a specific beneficiary should or should not collate ‘The only persons obliged to collale are the direct descendants of the deceased who are heirs ab intestalo, of ‘who would have been the deceased's intestate heirs had there been no Will. ‘The following benefits must be collated: 2. Benefits received by a child as pat of his inheritance b, Benefits received forthe promotion of a child's ocupation or business ©. Benefits given with a vow to a marrage { ‘The following benefits need not be collated: 8. Gifts given out of generosity b. Benefits received by a child for services rendered ‘e. Expenses incurred by the parents for the maintenance and education of their childten The abovementioned benefits must however be collated if they are out of proportion to the estate of the deceased. It should be noted that the benefits to be collated or not collated are all dependent on the intention of the testator which is decisive, Collation takes place by operation of the Law and consequently it is unnecessary to provide in the Will that heirs should collate, Ifthe Testator does not wish collation to take place he must specifically say'so, eg, "There shall be no collation". there is a likelihood of dispute or doubt es to what must be collated, this should be stated: 28, "I direct that my son JOHN and my daughter MARY shall collate rhe sum of RS 000.00 each which I gave to them as wedding gifts. Save for these amounts I direc that neither of them nor any of my other children shell collate any other gifts or amounts which I may have given to them.” 30‘Where no collation is to take place this should be stated : eg. "There shall be no collation” 7.1.18, APPOINTMENT OF GUARDIANS “The Matrimonial Affairs Act 37 of 1953 prevents a parent of a minor who does not have sdle guardianship by testamentary disposition from appointing any person as the guardian of the minor unless such parent was the sole natural guardian immediately before his death (section S(3Xb)) Where a parent who does have sole guardianship has appointed another as guardian, the court, upon the application of the other parent, made after the death of the ‘Testator, may make such order in regard to ‘guardianship ofthe minor as the Court may deem in the interest of the minor. Exg. "On the death of the survivor of us, we nominate AB and CD or, filing ether of them, the other of them, to be the GUARDIANS of our minor children." We direct that our Guardians be exempt from furnishing any form of security of whatsoever nature for the fulfment oftheir duties as such" 7.1.16, FUNERAL DIRECTION ‘A Testator should be asked what he requires shall be done with his body upon his death and should he indicate a preference, a specific elaise should be inserted in his Will. Where a Testator has not provided funeral directions the heir shall determine the manner, time and place ofthe funeral as to who may bury the deceased (See Fanti vs Boto and Others 2008 2 ALL SA 533 C). EXAMPLE! 1 civect that upon my death my body shall be cremated and my ashes shall thereafier be seattered upon my fern HAPPY HOME." "9 direct that upon my death my body shall be utilised by the University of Namibia for the prapose of medical research as the medical faculty of that University may in its entire discretion decide, and I further direet that after such utilisation my remains shall be cremated." "1 direct that upon my death my body be buried in the Pioneerspark Cemetery, Windhoek, alongside that of my deceased wife AB and itis hereby recorded that I have purchased for such purpose Plot No. 103 in the said cemetery.” "1 bequeath any usable tissue andor organs to any hospital or institution selected by my family 10 be used for ‘organ transplant and for such other purpose as they may deem ft" 7.1.17, A TESTAMENTARY TRUST A Testamentary trust can be a very useful instrament in a will where the testator wishes to regulate: the ‘administration of a beneficiary's inheritance for a specific period, or for a specific reason, after the testator’s dleath. For example, it may happen that the testator’ heirs are still minors at the time of the testator's death, In ‘order to avoid having the minors’ postions being paid into the Guardian's Fund, the testator may wish to create a ‘ust upon his death in order for his trustee(s) to administer the minors’ portions until they reach the age of majority, or at some later date (many testators provide that the trust will (eminate on the beneficiary's 25" birthday), The advantage of a Testamentary trust is thatthe trstees will care for the beneficiary in the absence of the festator and provide for his needs at a time when he may require assistance through immaturity or disability 3It is important to note that the clause in the will in terms of which the trust is created, is in effect the trust deed of the trust. It must contain all the necessary powers and duties of the trustees, If these are not included in the will the trustees will be at 2 serious disadvantage. This may prejudice the administration of the Trust or result in ‘ High Court Application for an order entitling the ‘Trustee fo do what the will should have provided for. Where a valid Testamentary trust has been created in a will, the Master will register the trust only after the nominated trustees have applied for their Letters of Authority to act as trustees of the trust in question. Testamentary trusts are subject to the same requirements as biter vivos truss (trast ereated in a lifetime of a person) when it comes to the registration thereof by the Master and accordingly the Trustee has no rights until such time as the Letters of Authority are granted, See the example of a will below, which contains an example of a Testamentary trust, 712. THE LIVING WILL ‘The law recognises a paten’s right to decide whether he wants to live or die and accept treatment or deny it Informed consent by a patient is required for any treatment. Patients who have executed a "living Will” will have definite instructions regarding the type of treatment fo which they'will not consent, thereby exercising their Jegal prerogative to lay down limits to what may be done to them, A Living Will is an, advance directive in which a person expresses his directives by refusing consent to any medical treatment arid attention which will keep him alive by artificial means when he is no longer competent to express his instruction In Namibia there is no law regarding the validity of Living Wills, 8. GENERAL COMMENTS 8.1, FAILURE OF BENEFICIARIES ‘What happens to the share of a beneficiary who predeceases the deceased or for any other reason is unable to inherit will depend on the intention ofthe testator as reflected in the will read as @ whole ‘he possibilities are as follow Direct substitution, ‘The testator ean state in his will what must happen should a legatee o heir fail, For example, "Lappoint A" as my heir, filing which I appoint "B" Although there is a presumption against a fdeicommissum, the wording ofthe will where direet substitution js contemplated must be such that it cannot be interpreted as being a fideicommissum, b. Jus Accrescendi, (right of accrual). Jus Accrescendi is the right of co-heirs or co-legatees to succeed to the share of the heir or legatee who cannot inherit. Whether Jus ecerescondi js applicable or not will depend on the testator’s intention from the wording used in his will. The case of Winstanley v Barrow 1937 AD 75 laid down guidelines to determine whether Jus accrescendi will be applicable. To determine whether the testator intended accrual to take place one has to consider the following: 282, {) —_oinder Re Tantum Gloinder of the ‘This occurs where the testator gave the same thing {0 two or more persons in different bequests in bis will Eg the testator leaves his house to his son in clause 1 of his will and the same house to his daughter in clause 2 of the will. The testator in fact intended accrual to take place because if his son or daughter can for some or other reason not inherit the one of them vill get the house and if both of them can inert then they will be co owners. Thus the interest ofthe son and daughter are joined by the thing, Joinder re et verbis(joinder by the thing and by the words) sere the testator in a single bequest bequeaths the same thing to two or This oceurs| ‘more benefici s. Eg | leave my house to Susan and Paul jointly. iif) Joinder verbis tantu ‘This is where separate benefits are left to different beneficiaries ina single bequest. Eg. eave my half ofmy farm to A and the other half fo B or i leave my farm to A and B equally. In this case the interests of the beneficiaries are separated and there is thus & presumption against accrual. These presumptions must yield, however, if it appears from the will read as a whole that the testator intended otherwise. In the case of Lello v ales. 1971(2) S.A. 330 it was held that although the bequest was "in equal shares" ( bis tantum) it was clear that the testator did not intend that the laws of intestate succession should apply end jus aeerescendi was applicable, & “Section 115(bis) of Act 24 of 1913. ‘This little known section of the 1913 Act was not repealed when the Estates Act of 1965 came into force in 1970 and is therefore still part of our aw: ‘This Section reads as follows. % Desendants of predeceased chitd of testator entitled fo benefit under w 15bis, Whenever according to the ferms of the will of a testator who dies after the date of commencement of the Administration of Estates Amendment ‘Ordinance, 1961, a predeceased child of that testator would have become entitled to any benefit under that will if he had survived the testator, the lawful descendants of that child shall be entitled per stirpes to that benefit unless the terms of the will indicate a contrary intention.” ‘This can be regarded as an exception to the Jus Accrescendi nu. ‘Aithough the provisions of this section are wide enough to include childven of Rehoboth Basters ‘who predeceased the testator, it is not certain whether or not they were in fact applied fo those estates, However wit the passing of Act 15 of 2005, and the repeal of Proclamation 36 of 1941, Section 115(bis) will apply to all estates in Namibia where applicable. 4, Intestate succession, Where neither a/ bf of cf above apply, the general rule is that legacies that fail, fall into the residue of the estate and ifa residuary heir feils, his share would devolve on the intestate heits of the testator. NB, NOT THE INTESTATE HEIRS OF THE DECEASED HEIR. ADOPTED CHILDRENIn terms of section 74 of the children's Act 33 of 1960 a child shall by virtue of an order of adoption be deemed in law to be the Jegitimate child of the adoptive parents, Provided that the adoptive child shall not by virtue of the adoption: ‘) inherit under a will executed prior tothe date of adoption unless the instrument cleerly states thatthe property shall devolve on such adopted child. IF your client has adopted children or considers adopting children, inelude a clause in the will to the effect that “children” shall include any adopted children, Inherit any property ab mtesiaro from the relatives of his adoptive parents ‘An order of adoption terminates al the rights and legal responsibilities that exists between an adopted child his biological parents and their relatives except the right to inherit from them ab intestatio, The adoptive chi now the legitimate child of his adoptive parents and as such they are entitled to inherit from him ab insta, 83, CHILDREN BORN OUT OF WEDLOCK Under common law, children out of wedlock cannot inherit under a will or intestate succession unless their fathers* will clearly stipulated that they should inherit, The Common Lavy was followed in Namibia until the decision in the case of Lotta Frans v Inge Paschke & others Case no (P) |_1548/2008, where the Court held on the 11° July 2007 that all children born out of wedlock are entitled to inherit fom their biological fathers by Will or intestacy. This decision was made applicable to all estates since independence which is 21 March 1990 ‘meaning it had retrospective effect, However the Children Status Act 6 of 2006 ,which only came into ‘operation on the 3" of November 2008, in section 16 states that children bom out of wedlock are only entitled to inherit from their fathers provided their fathers passed away after the Act came into operation, Currently the ‘Master's office are using the judgment of Lotta Frans to administer the estates where fathers passed away before 3 November 2008 and this has not been challenged. 84, SAFE CUSTODY Discuss the safe custody of the original will and duplicate ori the status of a signed duplicate original Is with the client and explain b, ‘The client mst be wamed, not to atfend persosially to alterations or deletions on the will or on the duplicate original under any circumstances . ‘Your client should tell his famity members where the original will is being kept in safe-keeping, 1 has happened that an estate of a deceased has been administered as intestate only to have the will discovered after the estate has been finalised, resulting in the estate having to be reopened If minors are involved and_fixed property has been transferred into their name on intestacy, it will require an application to court to rectify the position. PERIODIC REVIEWIN( G OF THE WILL ‘The client must be informed about the importance of having his will reviewed on a regular basis. Circumstances change as the time goes by and it is not "touting" to periodically got in touch with your client and ask him to call for a follow up consultation. Wills should be revised at least in the following instances: 4, Change in status of the testator and/or beneficiaries, b. Birth or death of children of the testator. Purchase or sale of major assets, 8.6. ADEMPTIO. a4‘There is a presumption tha, if testator alienates an asset that has been specilly bequeathed, he has revoked that bequest. A good reason for the revision of the will. A bequest, for example of "My Toyota Sedan motor car no N1234W" will lapse if the testator trades this vehicle in, for example, for a Ford station wagon no N76543W, even intention thatthe legatee should get this vehicle. 8.7. CONCISE NOTES REGARDING THE INTERPRETATION OF WILLS, the interpretation of wills revolves around the single concept namely to determine the true intention of the testator as it appears from the words used in his will. Words are interpreted according to their general grammatical meaning (*dictionary meaning and technical terms such as "usufiuct", “fideicommissum", "trusts" ete according to their legal technical meaning). However the rules just mentioned must also in some cases make way for the actual intention of the testator and this can be explained as follows: ‘The whole question regat One of the important aids used to determine the intention ofthe testator is the "scheme" of the will as a ‘whole; words. expressions or phrases are not seen in isolation, but against the background of the total structure of the whole will. The "physical construction of the willis therefore taken into account, ratters such as the division into paragraphs, punctuation, the place of a stipulation in the will in relation to other stipulations etc, Furthermore, if it is evident from the scheme of the will that a word, expression or phrase a it would be interpreted in the normal grammatical or technical sense as the basic rules require, will ead to absurd results which clearly does not agree with what the testator had in mind, then the grammatical and technical meaning of the word need not be followed and expression is given to the word which will be in fine with the obvious intention of the testator. On this basis the courts have on numerous oceasions determined that a usufruct has been created although the testator used the word fideicommissum in his will {A farther important principle in interpreting wills is that should it clearly appear from the will what the testator’ intention was, no evidence “aliunde" (that is evidence outside the will), may be used to add, amend or to do away with contents of the will. Such evidence, also known as "parol evidence", is only allowed when the intention of the testator is not clear and itis therefore necessary to determine what the intention was and when the court is not ina position to reach a decision by just looking at the will, Extrinsic evidence (alliunde evidence) is for example allowed to determine the meaning of illegible or incomprehensible words or phrases or of abbreviations, initials, nicknames, technical and scientific expressions, foreign words, words used in the context of certain commercial practices or which may be used in relation to certain groups, places, ethnic instances or religious matters os where normal words. in the context of the will were obviously used in a certain sense by the testator. Thus intrinsie evidence can therefore be used to prove that the testator has meant with the words "my wife" the woman with whom he fived together atthe time of his death without being legally married to her, or "the brother of my daughter" a strange son which he allowed for many years to stay with him in his house and whom he brought up as his own child, ee Evidence was allowed in the past that the word "ram is not a male sheep but in facta certain type of ‘water pump. The court is entitled to place itself in the position in which the testator was atthe time ‘when he made the will and then out ofthe arm chair postion to be able to look at all relevant facts and circumstances which was known fo the testator, inorder to determine what the testator had in mind by using certain words and expressions. The so called "armchair evidence" is always allowed. Furthermore “alliunde” evidence can also be used to determine the contents of a will where the will has been lost or destroyed in error. ‘The interpretation of wills must be distinguished from the rectification or amendment ofa clear mistake ina will. A good example of rectification can be found in the case of Bx parte Blasberg 1979(2) S.A. 589. 35A key judgement in the modern South Affican law regarding the rectification of wills fs found in the case of Aubry-Smith v Hofineyer NO 1973(1) S.A. 655. In an extraordinary decision in Administrators estate Richards v Nichol and another 1996(4) S.A. 253 the Courts varied the terms of a will to take the effects of inflation into consideration, ‘The last impostant point: the court cannot rectify the will ifthe testator himself forgot or for one or other reason neglected to include a certain stipulation in the will. It isa basic rule thet the court cannot make a new wil for the testator. If there are no words or phrases that can be interpreted as is the ease ‘here the testator left out certain stipulations there is nothing capable of being rectified. Therefore: Consult comprehensively with the client and make sure what he wants and also be aware of language usage and the technical terminology applicable to the law of succe A final consultation before signing where the whole will is discussed with the elient in order to determine that it contains his wishes, is most important. It may be a good idea before the willis finally signed to draw up a test distribution account, using the information ebtained fiom your elient, to ascertain whether the will as drawn isin fact practical, and Will cary out the testatoy’s intention. For example in one instance the testator, who had donated say, $1 000.00 to one of his children wanted his two children to share equally and stated ". the $1 000.00 inust be deducted from the award to "A" and given to "B"", Ia test had been done it would have been clear thatthe result of this clause would be that "B* would recsive $2 000.00 more than "A" and not $1 (000.00 as the testator intended. 88. LANGUAGE OF WILLS A will may be drawn up in any language that the Testator wishes Lt should be bourne in mind however that if the will is not drawn up in the Official Language ie English, a translation of the will must be lodged with the ‘Master when the estate is reported 89. THE USE OF WORD PROCESSORS. In these days of computerisation, most firms have aécess to word processors. These can be used to great advantage in drawing up wills for your elients or for amending will already executed. ‘The various clauses of wills are more or less standard and if these are saved separately, they can be recalled and strung together to suit your elients requirements, with only the additional details of names, amounts and/or details of legacies needing to be added. In this way errors and omissions of important provisions can be avoided, w client's will can be printed out and be teady for I, the testator has died ‘The most important advantage of this procedure is that yi signature within a few minutes, It has happened that due to delays in drawing up a before his will could be signed, It would be a good idea if copy of your clients will, ved on computer disk, is kept with the original or copy in your files. Minor alterations can then be easily and quickly made atthe testaor's request and again much time can be saved in having the amended document ready for signature, 268.1 52 34 $4.1 Ttis-a special term and con 0, EXAMPLE OF A WILL, LAST WILL OF DONNA WANNADIE widow of Windhoek, PREAMBLE. Unless it appears otherwise from the context, words importing the masculine gender will include the ferninine and visa versa, and words importing the singular will include the plural and visa versa. REVOCATION OF FORMER WILLS. Trevoke all previous wills. APPOINTMENT OF EXECUTOR AND ADMINISTRATOR. | nominate ANTONIO ANNA, or failing him my sister, TOSCA VERDI and JOHN SIMM, or the of them as executor of my will and administrator ofthe trust. 1 give my exceutor and administrator the power of assumption and the Master ofthe High Cour is directed to dispense with the necessity of furnishing security in respect of his administration, or the administration ‘of any person assumed by or succeeding him. APPOINTMENT OF HEIRS 1 bequeath my entire estate to my children, failing whom thei n Clause (5) below. issue per stitpes, subject to the Trust created CREATION OF TRUST Ian heir has not attained the age of 25 (TWENTY FIVE) years, such heirs share of my estate shall not ‘vest in him but shall be paid over to my nominated Administrator, upon trust for the following intents and purpose: INVESTMENT OF TRUST FUNDS 5.2.1 My Administrator shall be entitled to retain the trust assets inthe same form as they are handed to him or in sole diseretion may convert same into cash at such time and in such manner as he may deem fit and investor re-invest the proceeds thereof in such sect sof any nature, as he may forin time to time in his absolute discretion decide with the specific power to acquire immovable property, morgage same or grant mortgage bonds, it being my intention that my Administrator shal} be absolute unfettered in his choice of investments and shall have the power to vary such investments as he shall think fit USE OF CAPITAL AND INCOME DURING OPERATION OF THE TRUST. trator shall utilise so much of the income accruing tothe trust estate(after deductions ofall fees, ments and if any, taxes) as he in his sole discretion may deem necessary for the maintenance, n, advancement in life, will being and travel of an heir, subject however to the condition thet no ici shall receive more than his proportionate share of the income. 5.3.21 further give to my administrator the power fo make advances to an heir out of capital for such purposes as hhe may deem reasonable or desirable giving him full diseetion as to what advances he makes from time to time, and such heir's estate shall not be obliged fo refund any such advances should the heir die before attaining the age of 25 (tventy five) years. PROHIBITION OF DISPOSAL OF RIGHTS IN TRUST. of the creation of this trust that no heir shall be entitled 10 alienist, pledge, cede, mortgage or deal with his capital or his income or other interest or benefits thereunder in any way whatsoever, and any such attempted alienation or dealing shall be null and void as far as my ”administrator is concerned, Testator.. Witness Witness 52 IF the estate of an heir is surrendered or declared insolvent or made subject to any like process, the right of {he heir to any benefits from the trust shall immediately and entirely and ipso facto be deemed to have ceased, and shall vest in the other heirs provided for in my will or his trust as the case may’ be, to all intents and purposes as if the heir concerned had died, 5.4.3 Notwithstanding the foregoing, my administrator shall have the power in his sole and absolute diseretion and at such time or times as fhe may deem fit, to epply income or if that be insufficient, capital for the Iiaintenance, support of or otherwise for the benefit ofthat heir concerned, his spouse, ifany, and any issue ofthat heir. 5.5 PAYMENT TO HEIRS, 5.5.1 As soon as an lier attains the age of 25(twenty five) years his share of the trust shall then be capitalised and the capital and interest together with accumulated income, less advances made in terms of Clause 5.3 above, shall devolve upon him entirely to deal with as he deems fit, 5.5.2 1m the event of an heir dying before attaining the age of 25 (twenty five) yeats then on his death the share which he would have been entitted shall devolve upon his issue, iPany, subject tothe trust, failing which to the surviving heir or his trust as the ease may be, 5.5.31 give to my administrator the power to defer the payment of any bequest or inheritance for a period not exceeding 12 (twelve) months fiom the date of such bequest and/or inheritance is due in order to avoid iguidating my or the trust's business interest or other assets or investments at the time when he, in his discretion, considers it inadvisable to do so. 5.6 LIMITATION OF ADMINISTRATOR'S LIABILITY. i My administrator shall not be liable to make good to any heir of my estate any loss occasioned or sustained | fiom any cause however arising except such loss as may be arise from or be occasioned by his own personal dishonesty or other wilful misconduct, 5.7 PAYMENT IN CASH OR KIND. My executor and administrator shall be eniled to pay or make over any amount due fo a beneficiary in cash or in kind whether forthe purpose of allocating assels or forthe purpose of payment to a beneficiary, to distibute the assets of my estate in such manner as he considers fit in accordance with the valuations made or obtained by him in his discretion which valuation shall be final and binding upon all persons affected theseb 5.8 HEIRS TO INHERIT FREE OF COMMUNITY. Should any person who will benefit under this my will be married in community of property or subject 10 any law of acerual, then notwithstanding such community of property or accrual, the benefits payable 10 hhim under this will shall devolve upon and belong to him personally and shall not form part of any such ‘community oF accrual. 59 GENERAL PROVISIONS. ‘Any beneficiary under this will shall be entiled to repudiate the whole or a part only of his inheritance or legacy without affecting his right to the remainder of the inheritance or legacy, and notwithstanding, shall remain entitled to any other benefits provided for in this will 5.10 COLLATION, 38‘There shall be no collati ‘THIS DONE AND SIGNED AT vv 09 this the day of presence of the undersigned witnesses all bcing present at the same time. Testator..... i Witness. Witness. 20, 39EXAMPLE OF A LIVING WILL LIVING WILL. ‘TO MY FAMILY AND MY PHYSICIAN: 1, the under my Living Will 1, NON-REVOCATION OF PREVIOUS DISPOSITIONS ‘This Living Will does-not in any way revoke or vary any Will or other testamentary disp ed, presently of Windhoek, after careful consideration, make the following declaration which I call 2. INTERPRETATION In this Living Will, unless a contrary intention clearly appears - "doctors" means one or more medical practitioners who may, from time to time, be called upon to give a prognosis of my condition; . "systems" means any mechanical or artificial life support systems or the use of drugs. 3. The time may come when I can no longer make decisions for my own future. In such event if my physicel andlor ‘mental condition should deteriorate to such an extent that there is no reasonable prospect of my recovery fiom physial illness or impairment which is expected 10 cause me severe distress or to render me incapable of rational existence, I request that Ibe allowed to die. I further direet that: No systems be used i died; : order to keep me alive in circumstances where, but forthe use of such systems, I would have The given whatever quantity of drugs are required to keep me fiee from pain or distress even if the moment of death is hastened thereby. AS WITNESSES Texpressly direct that my doctors and members of my fanily who carry out my wishes in terms of Clauses 3 and 4 above shall be fully exonerated and exempt from all blame or liability howsoever arising asa result oftheir use of or their failure to use or their decision o terminate the use of any drugs or any systems, 1 do not consent to any form of tube feeding. IN WITNESS HEREOF, (have hereunto set my hand at 100 thiS the wcsransny GY OF smenng Bey i the presence of the undersigned witnesses, all being present atthe same time, «AS WITNESSES: Address For any additional information comtact:- SAVES- The Living Will Society PO Box 1460 Windhoek Tel: (061) 266-851 aD. INTESTATE SUCCESSION. COMMON LAW RULES OF INTESTATE SUCCESSION, ‘After this session the student should be able to: Define the following subject terminology: Ascendants. Descendants. Collaterals. Parental, Per Stipes. per Capita, Representation, Degree of relationship. Child's Share, Have a good knowledge of the various statutes constituting the Namibian laws of intestate succession ie. The Political Ordinance of 1580, b. The interpretation of 1594, The Octrooi of 1661, ‘The Intestate Succession Ordinance of 1946 (as amended). Section 74 of the Children's Act 33 of 1960, ‘Thie Native Administration Proclamation No 15 of 1928 (section 18(2)) Administration of Estates (Rehoboth Gebiet) Proclamation No 36 of 1941* (schedule 2) Be able to divide an estate in terms of the provisions ofthe above statutes, 29. INTRODUCTION ‘There are three systems of intestate succession applicable in Namibia namely, 4) The Common Law Rules, as amended by the Intestate Succession Ordinance 12 of 1946 ')_ Intestate Suecession roles for Rehoboth Basters ©) Customary laws of certain Black Namibians 9.1. Blood Relation Groups ‘There are three blood relation groups namely: 1, Ascendants: these are the ancestors of the deceased and they include parents, grandparents, great grand- parents 2. Descendants: these are people that descent from the deceased and they include children, grandehildren, ‘great-grandehildsen 3. Collaterals; these are people related to the deceased through at least one common ascendant and collaterals can be of full or half blood. 3.1. Collaterals of full blood: these people are related to the deceased through two common ancestors, eg. brothers, aunts, uncles. 3.2.Collaterals of the half blood: related to the deceased through one common ancestor such as half brothers and half sisters 9.2. Parental (Parenteel) A parental is every group of parents and their descendants. E,g. ‘The deceased and his descendants form the first parental and the second parental consist ofthe deceased's parents and thelr descendants ete, 93. Stirps (Stipes) A person has as many stipes as he has surviving children or predeceased children who are survived by descendants. 94. Representation ‘This takes place when the child of a predeceased blood relation is called to be heir in place of the relative who would have inherited had the predeceased person survived the deceased. Representation usvally takes place in intestate succession except for Section 1 15bis of Act 24 of 1913. Ex. where the deceased leaves behind 2 children and a child from a predeceased daughter. Balance for Distribution NS 120 G00 . The estate will be divided equally amongst the deceased three children and the predoceased daughter's child will then stand in for her mother and inherit equally with the 2 living children of the deceased. They will exch receive an amount of NS 40 000. Degrees of Consanguinity ‘The degree of consanguinity is calculated by counting from the deceased fo the ascendant or descendant, Each geueralion counts as one degree. E.g. Mother and Daughter are related to each other in the first degree whilst grandmother and granddaughter are related to each other in the second degree. It is important to remember never to count the deceased. In respect of collaterals one has to count from the deceased through to the common ancestor athen down to the relation. Step relations cannot inherit intestate from a deceased person since they are not blood relations of the deceased. 9.6. Succession per capita In this ease no representation tekes place and the persons in the nearest degree of consanguinity to the deceased inherit, in equal shares, tothe exclusion ofthe rest of the deceased's relatives, 9.7. Chita's share A child’s share is calculated by counting the number of stirpes the deceased has plus I. This is normally the case where the surviving spouse and children arc to inherit. The surviving spouse is than added as a child to the number Of children the deceased left and the balance for distribution, depending on whether the deceased is married in or out of community of property, is then divided amongst them in equal shares. Note that if the deceased was married in community of property then the surviving spouse’s half share is frst taken from the balance for distribution before the child’s share ean be determined, Ex. where the deceased is married in community of property to the surviving spouse and he leaves 2 children and a balance for distribution in the amount of NS 150 000.The surviving spouse will receive NS 75 000 by virue of the ‘marriage in community of property . Plus a child’ share which would be calculated by adding the surviving spouse 43 4 child to the number of children left by the deceased which would amount to 3 and then divide the remaining balance for distribution between them equally which would amount to NS 25 000, Thus the child’s share would be NS25 000, 10, ‘THE INTESTATE SUCCESSION ORDINANCE NO 12 OF 1946 (AS_AMENDED BY ACT 15 OF 1982) 10.1 SECTION 1(1) (8), MARRIED I MUNITY OF PROPERTY WITH DESCENDANTS. Where a deceased leaves behind a spouse to whom he is marsied in community of property and descendents , the spouse wil inherit a child's share or as much as together with her half share by Virtue of her marriage in community of property does yat exceed NSSO 000. Example 1 ‘Surviving spouse and 2 children. Balance for distribution NS. 240 000 ‘The Surviving spouse will receive halfby virtue of the marriage $120 000 ; Plus a child's share NS 40.000 cach child will receive NS 40.000 ( child's share plus half by virive ofthe matriage exceeds NSS0 000) Example 2 Surviving spouse and 2 children batance for distribution NS 60 000 + Surviving spouse will receive halfby virtue ofthe marriage N30 000 (@s child's share is NS10 G00 together with the half share by Virtue of the marciage is less than NSO 000 she will inherit NS20 000 to bring the amount ro NSO 000) S20 000 Each child will receive NS 5.000 Example 3 “4‘Surviving spouse and I child Balance for distribution NS40 000 Surviving Spouse will receive half by virtue ofthe marriage NS 20 000 the remaining NS 20 000) NS 20.000 Le. ifthe balance for distribution is NS50 000 or les the surviving spouse will be the sole heir 10.2. SECTION 1(1)(b) ED OUT OF COMMUNITY OF PROPERTY WITH DESCENDANTS In terms of this sub-section, where a deceased leaves a surviving spouse to whom he was married out of community of property and descendants the surviving spouse will be entitled to a childs share or an amount of NS 50 000 ‘whichever isthe preater Example 1 Surviving spouse plus 3 children balance for distribution NS240 000 Surviving spouse will inherit Ns«0.000 Children will each inherit NS60.000 (the cil’ share exceeds $0 000) Example 2 Surviving spouse plus 2 children balance for distribution NS120 000 Child's share is NS40 000, As this i less than $50 000 surviving spouse wil inher N$50 000 Children will each inherit 835.000 Example 3 n NS 40.000 ‘Surviving spouse plus 2 children balance for distribut A this is less than NS 50 000, the survivor will be the sole heir. 10.3, SECTIONI()(c) MARRIED_IN_OR_OUT_OF COMMUNITY _OF PROPERTY WITHOUT DESCENDANTS BUT LEAVING A PARENT, BROTHER OR SISTER. In terms of this sub-section, where a deceased leaves a surviving spouse, whether married in or out of ‘community of praperty, no descendants and a parent, brother or sister the surviving spouse will inherit one half of the deceased's estate or NSSO 000 whichever isthe greater. ‘The balance wil then devolve in erms ofthe Common Law. Example 1 ‘Surviving spouse married in community of property pls mothe. Balance for distribution N§240 000 Surviving spouse will eccive by % by virme ofthe marrage NS120.000 Surviving spouse will inert half of the deceased's estate oF $0 000 whichever is greater NS.60 000 ‘Mother will inherit NS 60.000 45Example 2 Surviving spouse married out of community of property plus mother. Balance for distribution NS240 000. ‘Surviving spouse will inherit % of deceased's estate NS120 000 Mottier will inherit 1NS120 000 Example 3 Surviving spouse married in community of property plus mother. Balance for distribution NS120 000. Surviving spouse will receive % by virtue ofthe martiage NSO 000 As ¥ (ic. NS 30 000)oF deceased share is less than $0 000 she wil inert 1850 000 Mother will inherit 10.000 Example 4 ‘ Surviving spouse marred out of community of property phis mother. Balance for distribution NS120 000, Surviving Spouse will inherit Ys of deceased's estate 60 000 Mother wil i NS60 000 Example $ Surviving spouse married out of community of property plus mother. Balance for distribution NS4S 000, Surviving spouse will inherit the whole estate S45 000 Example 6 ‘Surviving spouse married out of community of property plus half brother on mother's sid and a full sister, Surviving spouse will inherit % share of deceased's estate N60 000 Halfbrother will inherit 4 of mom's share NSIS 000 { Full Sister will inherit % of mom's & share of dad’s full share NS45 000 104. SECTION 1(1) (d) NO DESCENDANTS, PARENTS, BROTHERS OR SISTERS THEN SURVIVING SPOUSE WILL BE SOLE HERR 4 cases not covered in sections (a) (b) or (e), the surviving Spouse be the sole her. In the above sub: sections references to the child, patent jorother or sister means a child, parent zbrother or sister who are entitle to inherit from the deceased Yain= Ss) 2) Haet- 654, The intestate successor ordinance only determines the shate ofa surviving spouse. Any balance after the surviving spouse has taken her share will devolve in teims of the common lav rules of inestate succession fe, the POLITICAL ORDINANCE OF 1580 andthe OKTROOL OF 1661, BM info > Ss P/BIS. 4 Wher pen above apply 46u. 12. 1d, 1s. COMMON LAW RULES OF INTESTATE SUCCESSION |. WHERE THE DECEASED LEAVES NO SURVIVING SPOUSE BUT LEAVES DESCENDANTS ‘The descendants inherits the whole estate where there is no spouse, Representation is allowed. Example: A deceased leaves a predeceased spouse, a surviving child, a predeceased child who left 3 surviving children, Balance for distribution NS 120 000. ‘The surviving child will receive ¥ of the deceased's estate NS 60.000 ‘The predeceased child's % share will go to his surviving children in equal shares NS 20 000 WHERE THE DECEASED LEAVES NO SPOUSE OR DESCENDANTS BUT LEAVES BOTH PARENTS WHO ARE STILL ALIVE ‘The parents will inherit tothe exclusion of any other family member. Example: A deceased leaves a sister, both parents and predeceased child with no children. Balance for distribution NS 90 000 ‘The parents will inherit the whole estate in equal shares (ie. NS 45 000 each) to the exclusion of the sister of the deceased, |. WHERE THE DECEASED LEAVES NO SPOUSE AND NO DESCENDANTS BUT LEAVES ONE. PARENT WHILE THE DECEASED PARENT LEFT DESCENDANTS. In this case the surviving parent inherits one half of the deceased's estate and the descendants of the predeceased parent the other halfin equal shares Example: a deceased leaves a mother and twvo half brothers on his predeceased father’s side, Balance for distribution NS 240 000 ‘The Mother will receive N$120 000 5 ‘The half brothers will each receive NS 60.000 i WHERE THE DECEASED LEAVES NO SPOUSE OR DESCENDANTS BUT LEAVES ONE SURVIVING PARENT WHILE THE DECEASED PARENT DID NOT LEAVE ANY DESCENDANTS, In this case the surviving parent will be the sole heir. Example: where the deceased leaves @ mother and grandmother. Balance for distribution NS 100 000, The mother will be the sole heir and will inherit the whole estate in the amount of NS 100 000 to the exclusion of the deceased's grandmother. WHERE THE DECEASED LEAVES NO SPOUSE DESCENDANTS OR PARENTS WHILE ONLY (ONE OF HIS PREDECEASED PARENTS LEFT DESCENDANTS, In this ease the descendants ofthe predeceased parent will be the sole heirs. Example: the deceased leaves two half sister fiom his mother side and a cousin from his predeceased father’s side, Balance for distribution NS 80 000 ‘The two half sisters will each receive NS 40 000 to the exclusion of the cousin of the deceased. ”116, 2. 12 12.2. WHERE THE DECEASED LEAVES NO SPOUSE, DESCENDANTS, PARENTS OR DESCENDANTS OF THE PARENTS. In this case the nearest blood relation will qualify to inherit. Example: where deceased leaves only a brother of his predeceased father, this uncle of the deceased will inherit the whole estate as he i the nearest living blood relation. ADMINISTRATION OF ESTATES (REHOBOTH GEBIET) PROCLAMATION 16 OF 1941, Although the Administration of Estates (Rehoboth Gebiet) Proclamation No 36 Of 1941.inas been repealed by the Estates and Succession Amendment Act of 2005, Schedule 2 of the proclamation has heen reinstated as far as members of the Rehoboth Baster Community is concerned. This schedule deals with their rules for intestate succession, Who is a member of the Rehoboth Baster Community? Section 29 of the proclamation describes a Rehoboth Baster as follows: “Member of the Rehoboth Bastard Community" shall mean and include any person who, by reason of his birth or parentage, possesses full burgher rights fn the Gebiet under the lows and constitution of ‘the Rehoboth Bastard Community. or any non-European person whase application 10 be accepted as a burgher of the Gebiet has been approved in accordance with the las and constitution of the Rehoboth Bastard Community, or the wife of any born on accepted burgher, or any legitimate child of any parents both of whom are members of the Rehoboth Bastard Community as aforesaid, oF any illegitimate ebild whose mother is member af the Rehoboth Bastard Comunity as aforesaid" AAs the Advisory Couneil for the Rehoboth Gebiet no longer exists, only persons born of Rehoboth Basters can obtain the status as Rehoboth Basters INTESTATE RULES APPLICABLE TO REHOBOTH BASTERS, ‘Schedule 2 of the proclamation provides as follows” “hen in any estate vo valid will is left by the deceased the assets thereof shall be distributed among the heirs in the manner following:- ) (@) Where the deceased is survived by a wife or husband and ehildren, Half of the estate shall devolve upon the surviving spouse, and the other half upon the surviving spouse and the children tr equal shares. Children of pre-deceased children shall suceced 10 the shaves of thetr deceased parent per stinpes. ®) Where the deceased is survived only by children The whole estate shall devolve upon the children in equal shares children of predeceased children succeeding 10 the shares of deceased parent per stirpes. (©) Where she deceased leaves only a wife or husband, Half of the estate shall devolve upon the swaviving spouse, who shall also be entiled to onecthird Of the remaining half. The remaining two thirds of the remaining half shall devolve in equel shares won the niother and father of the deceased. or if there be only a mother or a father surviving. such mother or father shail receive the whole of the remaining nvo-thirds of one half of the estat. Should both parents of the deceased have pre-deceased hin, then the remaining two-thirds of one" half of the estate shall devolve in equal shares upon the brothers and sisters ofthe deceased, 48Provided that in any ease the- surviving spouse of the deceased shall be entitled 10 the fall sufiuet ofall the assets in the estate until such tine as he or she dies or re-marries @)~—_MWhere the deceased leaves no surviving spouse or children. The entire estate shall devolve upon the family ofthe deceased in accordance with the rules set out ‘in paragraph (6) hereof. © Ineases not falling under paragraphs (a). (6). (¢) or (@). The matter shall be placed before the Magistrate anid Advisory Connell, who may give suel directions in regard to the disposal of the assets as may seem 10 them proper. In the absence of an “Advisory Council” the Magistrate will now have to determine who the intestate heits are under Sub-seclion (c). No guidelines have been given to assist the Magistrate in this regard but he may look to the ‘Common Law rules for guidance, Another problem will be the fact that many of these estates will now be administered under the supervision of the Master. Will she now be the person to give directions under this sub-section? ‘NOTE that the intestate succession rules will apply to a Rehoboth Baster whether he/she is resident in the district of Rehoboth or not, ‘The distribution of an estate under these provisions can be summarised as follows: A WHERE A DECEASED LEAVES A SURVIVING SPOUSE AND CHILDREN. __ Ii this case the deceased will inherit ¥ of the deceased’s estate and the surviving spouse and children will ‘inherit the remaining ¥% in equal shares which will constitute a child's share. Example 1: A deceased leaves a surviving spouse to whom he is married in community of property and 2 children, Balance for Distribution NS 240.000 ‘The surviving spouse will receive: ‘A by virtue of the marriage in community of property NS 120 000 of the deceaséd’s estate in terms of Schedle 2 NS 60000 AA child's share in terms of Schedule 2 NS 20000 cach receive achild’s share per stinpes --NS-_20000 ‘The two children or their issue wi Example 2: A deceased leaves a surviving spouse to whom he is married out of community of property and 2 children. Balance for Distribution NS 120 000 TThe surviving spouse will receive: 4 of the deceased's estate NS 60 000 A child’s share in terms of Schedule 2 z NS 20 000 ‘The two children or their issue will receive a child's share per stirpes NS 20 000 B WHERE A DECEASED LEAVES NO SURVIVING SPOUSE ONLY CHILDREN In this ease the children of the deceased or their issue will each receive a child's share per stirpes to the °