ERF MASS TUTORIAL (TUT 4 + 5 MEMO)

QUESTION 1 [4]

Tanya and Veronica are married. Tanya makes a will with Veronica as sole
beneficiary. The will reads: “I hereby leave Veronica everything, regardless of what
the future holds, out of appreciation for all the sacrifices you made working double
shifts and raising our five children in order for me to complete my medical studies
during our early years together. I will forever be grateful.”

Tanya and Veronica sadly divorce because Tanya is never home. Tanya dies of a
heart attack two weeks after the divorce. Veronica approaches you for legal advice.

How will the will be implemented? Substantiate in full

This scenario deals with section 2(b) of the wills act. In this scenario where testator
dies and 3 months without divorce it deals as of spouse pre deceased the deceased.
The question is dealing with whether a T's former spouse will be able to inherit in
terms of a will.

→ Sec 2B of the Wills Act applies (1)

If the T dies within 3 months after the dissolution of their marriage, the will is
implemented as though the ex-spouse predeceased T (1) unless a contrary intention
is shown in the will (1).

APPLY THE AUTHORITY TO FACTS:

→ Based on the wording "regardless of what the future holds" indicates contrary
intention (1).
→ THEREFORE: Veronica will still inherit (1).

Without the words "regardless of what the future holds" Veronica would not inherit.
QUESTION 2 [8]

T has a will dated 2 December 2018 in terms of which his second wife, W and her
three (3) children from her first marriage, inherit his substantial estate in equal
shares. Upon T’s death on 27 August 2019, an A4 folio page was found on his
kitchen table stating:“I hereby declare that I am of sound mind and memory. I don’t
want my last will dated 2 December 2018 to be my will any longer. I want to die
without a will”.The A4 folio page is “fortunately” signed by T with his full signature, 1
cm below the mentioned statement and dated 2 August 2019. It is undoubtedly T’s
handwriting and signature that appear on the page.
T’s two (2) children A and B, from his first marriage with V, approach you for legal
advice, showing you the abovementioned A4 folio paper. Advise them on the
following:

2.1 Whether the actions by T amount to a valid act of revocation (3)

→ The question deals with whether the actions done by the T amount to a
recognised method of revocation.
→ One of the methods of express revocation is T concluding a revocatory
document (1).
→ The revocatory document MUST comply with the formalities of Sec 2(1)(a) of
the Wills Act (1).

APPLY THE AUTHORITY TO FACTS:

T made a revocatory document, but it does not comply with therefore it is not a valid
act of revocation (1)

2.2 Whether there is anything they can do to ensure T’s will is revoked. (5)

→ Sec 2A of the Wills Act applies (1)

→ Mention the 3 options in the Sec (1).

APPLY THE AUTHORITY TO FACTS:

→ In this case, T drafted (and partially executed) another document (1)
→ And this document was intended to revoke his will (1).
→ Intention is clear from wording of the document and the fact that
he signed it (1).
QUESTION 3 [10]

Tyrone, a multimillionaire who owns various luxurious properties, has a valid will in
place dated 7th August 2011, whereby he bequeaths 70% of his estate to his wife,
Gia, and 30% to his children, Daniel and Walter, in equal shares. Tyrone’s favourite
asset is his Ferrari, and he rarely leaves the house without “giving it a spin.” On
Tyrone’s 42nd birthday, however, Tyrone he has a mid-life crisis and decides to sell
his Ferrari and go on a year-long sabbatical where he hopes to learn how to live a
more “modest” life. He travels through Tibet and becomes a monk. Upon returning
home, Tyrone tells his family that they will begin living a less materialistic life. He
then goes on to validly execute another will, on the 10th of July 2022, whereby he
leaves the whole of his estate to various charitable organisations. He successfully
revokes his will dated 7th August 2011. Six months pass and Tyrone becomes bored
of his “modest” life. He decides that it is no longer for him. Upon this realisation
Tyrone decides to throw a huge party to apologise to his family for putting them
through so much. At this party, Tyrone takes his will dates 10th August 2022, rips it to
shreds and says to his wife: “Sweetie, I’m sorry for all the mess I’ve caused. But
look, I’ve destroyed my new will! The old will stands!” Tyrone goes on to pass away
two weeks later.

Answer the following questions:

3.1 What is the legal position regarding the destruction of Tyrone’s 2022 will, in
this instance? (5)

→ The question is dealing with methods of revocation and intention to revoke.

→ Destruction of a will is a valid act of revocation (1)
→ However, with revocation, one must always have the intention
→ (animus revocandi) to revoke. (1)
→ In Le Roux v Le Roux (1),
→ The Court Held: If you revoke a will with the wrong assumption that it will
revive your previous will, you lack animus revocandi
THEREFORE: Tyrone lacked the intention to revoke as he revoked his will on the
assumption that it would revive his previous will which is wrong. (1)

3.2 Has Tyrone successfully revived the 2011 will? Substantiate with reference
to authority. (5)

Golden PREVIOUS rule re revival: NO AUTOMATIC REVIVAL OF WILL UPON

DESTRUCTION (EXPRESS REVOCATION) OR ORAL REVOCATION OF LAST
WILL. (1)

→ In Moses v Abinander/ Wessels v The Master (1)

→ The Court held: That in order for a will to be revived the testator has to do the
following-list 3 requirements (1).

THEREFORE: Although Tyrone had the intention to revive his will (1), it has been
unsuccessful in reviving as there is NO automatic revival of wills.
QUESTION 4 [10]

Viviane assists her husband, Tim, to draft his will by writing the will out in her own
handwriting, according to his instructions. As per this will, Viviane is to receive 50%
of Tim’s estate upon his death. The will is subsequently validly executed. Tim then
passes away.

4.1 Discuss the legal position regarding Viviane’s inheritance of 50% of Tim’s
estate. Substantiate with reference to authority. (4)

According to Sec 4A(1) of the Wills Act (1), A person who writes out someone else's
will in their own handwriting is disqualified from inheriting from such will (1).

THEREFORE: Viviane wrote the will out in her own handwriting, and this disqualifies
her from inheriting 50% of Tim's estate (1).

4.2 Is there anything Viviane can do to ensure she still inherits the 50%?
Substantiate in full. (6)

→ Viviane can apply for one of the Sec 4A(2) of the Wills Act
→ exceptions (1).
→ She can either apply for a court order declaring that she did not
→ unduly defraud/influence the testator (1)
→ Or she can prove that she is an intestate heir (1).
→ In Blom v Brown (1)
→ The Court Held: That even an intestate heir can apply for the first exception
which deals with court order declaring that they did not unduly
defraud/influence the testator (1).

However, in order to apply for the latter exception, Viviane will have to show that her
benefit in terms of Tim's will is the same or less than what her intestate
share would be (1).
QUESTION 5 [10]
T, a multimillionaire, executes a valid will. The following clauses appear in T’s
will:

1. I leave the family home to my son, A, on his death the family home must go to
my grandson, B, on B’s death the family home must go to my great-
grandchildren on the male descendent line. Should there be no male
descendants, the family home must go to the closest living male relative.
2. The rest of my estate must be placed in trust for the purposes of creating a
bursary scheme for those wanting to study an LLM in the United Kingdom.
The beneficiaries of this scheme are limited to white South Africans. Should
this be impossible to implement, the trust beneficiaries must instead be ABC
Charity for Animal Conservation.

Answer the following questions:

5.1 Is clause 1 valid? Substantiate fully. (5)

The question is dealing with whether freedom of testation prevails in private

bequests regarding a clause that is potentially discriminatory.
→ In King v De Jager (1),
→ The Court Held: That there is no distinction between public and private wills
→ A private will/trust must not be against public policy where the bequests
unfairly discriminate against beneficiaries, as this will be unconstitutional (1).

APPLY THE AUTHORITY TO FACTS

→ In casu, T unfairly discriminated against his beneficiaries based on gender
due to words such as "male descendent line" (1)

THEREFORE: The clause will be invalid and unenforceable (1).

5.2 How will clause 2 be implemented? Substantiate fully. (5)

The question is dealing with how will FOT prevail in a clause dealing with charitable
that is potentially discriminatory.
→ In the Syfrets (1) case,
→ The Court Held: That aT cannot unfairly discriminate whether direct or indirect
against their beneficiaries especially in the public sphere (1).
→ However, in the BOE Trust case (1),
→ The Court Held: In the event of there being a substitute beneficiary, freedom
of testation should prevail (1).

THEREFORE: The trust will go to ABC Charity for Animal Conservation as it is a

substitute beneficiary (1).
QUESTION 6

On 30 April 2022. Mr and Mrs Love-Lives-Here executed a valid will in which they
stipulated the following: "We hereby mass our respective estates and stipulate that
the whole massed estate pass to the survivor of us. On the death of the survivor, the
estate must pass to our son, Lovemore."

They consult with their family attorney. Siba, to explain what the implications of such
a clause. Siba immediately recognises the clause as an example of estate massing
in terms of section 37 of the Administration of Estates Act.

As Siba, advise them by discussing the following: Refer to case law where
applicable. Half marks are applicable

1. When massing of estates in terms of Sec 37 occur?

→ Massing only occurs upon adlation by survivor (1)

2. What the nature of the survivor's rights are if they adiate?

Survivor =
→ Fiduciary (½)
→ Owner of property and can use and enjoy the fruits of it, but ownership limited
in duration and extent (½);
→ May not dispose of assets (½);
→ Must use and enjoy it, maintaining its essential qualities (½)

3. The legal position of Lovemore and the nature of her rights if the survives
Adiates

Lovemore =
→ Fideicommissary (½)
→ In Barnhoorn v Duvenage (½) it is inferred that the Fideicommissary has a
Personal right (½)
→ All of this subject to resolutive condition that the Survivor adiates (½). Vested
right, but not in the sense that it forms part of his estate.