The Law of Succession in South Africa - (Chapter 7 Capacity To Benefit Under A Will or On Intestacy)

Chapter 7 [*]
Capacity to Benefit under a Will

or on Intestacy
Section
1. Introduction
2. Guardians, Administrators and Curators
3. Persons Marrying Minors Without Consent
4. Unworthy Persons and the Principle that No One May
Derive a Benefit from His or Her Unlawful Act
5. Children Born out of Wedlock, Incest and Adultery
6. Adopted Children
7. Persons Witnessing, Signing or Writing Out a Will and
Their Spouses
8. The Consequences of the Disqualification to Inherit
Page 136
1. Introduction
1.1 The general rule is that all persons, minors and even
children conceived but not yet born, [1] natural or juristic, [2]
and regardless of their general legal capacity, [3] can validly
Copyright © 2023. Juta & Company, Limited. All rights reserved.
take benefits conferred upon them by will or on intestacy.

Under the common law certain persons were, however,
disqualified from taking benefits, and legislation in the
various provinces and South-West Africa [4] provided in
addition for certain statutory disqualifications. The Wills
Act, [5] which repealed this legislation, re-enacted these
statutory disqualifications with certain modifications but left
Hofmeyr, G., and M. Palekar. The Law of Succession in South Africa, Juta & Company, Limited, 2023. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/unisa1-ebooks/detail.action?docID=30532920.
Created from unisa1-ebooks on 2024-03-30 01:37:25.
the pre-existing common law unchanged. The Law of
Succession Amendment Act, [6] which applies to wills
executed on or after 1 January 1954, in respect of which
the testator was alive on or after 1 October 1992, [7]
repealed [8] ss 5 and 6 of the Wills Act (which dealt with the
disqualifications attaching to witnesses) and modified the
common law to some extent. The common-law
disqualifications, in so far as they have not been covered by
the Law of Succession Amendment Act, remain of
application. Inasmuch as the law which is not covered by
the Wills Act as amended by the Law of Succession
Amendment Act and which, in respect of the latter Act,
applies to wills in respect of which the testator died before 1
October 1992, is unlikely to apply in the future, that law will
not be dealt
Page 137
with, and reference should be made to the second edition of

this work and the 1994 Supplement to it. What follows
represents the law as it exists today and, in respect of the
amendments brought about by the Law of Succession
Amendment Act, the law in regard to wills in respect of
which the testator was alive on or after 1 October 1992.
1.2 It has been pointed out [9] that the capacity to inherit is
the ability to acquire a vested right as distinct from the
capacity to enjoy that right and that this distinction
becomes relevant when considering the position of, for
example, a minor beneficiary (including a nasciturus), [10] a

mentally disabled beneficiary, [11] a prodigal, [12] or a
beneficiary whose legal standing is impaired, such as an
insolvent. [13] While beneficiaries such as these are capable
of acquiring a vested right to an inheritance, they cannot
acquire the unrestricted enjoyment of the inheritance.
Page 138
1.3 Capacity to take a benefit must exist at the time of
vesting [14] and when the beneficiary accepts. [15]
1.4 The onus is on the party who alleges that another
party is disqualified from taking a benefit to prove such
allegation. [16]
2. Guardians, Administrators and

Curators
2.1 In terms of art 12 of the Placaat of Charles V, [17]
bequests and gifts of immovable property or monetary
returns or rental for life or longer on immovables were
invalid if made by a person under the age of 25 years in
favour of such person’s guardian, curator or administrator
or the children of any of them, or in favour of such person’s
godparents or concubine. [18] The Placaat did not in terms
extend to the wife of the guardian, curator or administrator,
and there were conflicting views amongst the Roman-Dutch
writers on whether or not the prohibition should be
construed to include wives. [19] Moreover, the Placaat did not
specifically refer to movables, and a further conflict existed
as to whether the Placaat should be afforded an extended
interpretation so as to include movables. [20] Voet states that
the prohibition did not apply to bequests made to the
prohibited class of persons after the guardianship had come
to an end, [21] and suggests that
Page 139
to the extent to which the bequest did not exceed what the
guardian would have received on intestacy, the bequest was
valid. [22]
2.2 The extent to which, if at all, art 12 of the Placaat is
still part of our law has never been decided. In Spies v
Smith [23] this question was left open, but it was held, on the
assumption that the Placaat had been received into our law
and was still in force, that the Placaat could not be given an
extended interpretation so as to apply to majors under
curatorship and that the prohibition would apply in modern
law to persons under 21 years and not under 25 years. [24]
The age of majority is now 18 and not 21. [25]
3. Persons Marrying Minors Without

Consent
3.1 The rule that a person who has married a minor
without the consent of the minor’s parents or guardian or
the court cannot take a benefit from the minor whether by
will, gift or otherwise, even if the necessary consent is
obtained after the marriage, [26] no longer applies. [27]
Page 140
4. Unworthy Persons and the

Principle that No One May Derive a
Benefit from His or Her Unlawful
Act [28]
4.1 A beneficiary may be precluded from taking a benefit
under a will or on intestacy because of specific conduct that

makes him or her unworthy, in a legal sense, [29] of taking
any benefit from the deceased. The principle underpinning
the disqualification is that to allow the beneficiary
concerned (the indignus) to take the benefit would offend
against public policy. Moreover a beneficiary may be
precluded from taking a benefit because of the overarching
principle that no one should be allowed to benefit from his
or her unlawful conduct or derive a benefit from conduct
which is punishable. [30] The latter general principle, also
clearly based on public policy, is well established in our
law. [31] The Roman-Dutch authorities, on the basis of the
above principles, provide numerous grounds [32] upon which
a beneficiary was considered unworthy to inherit, many of
which would be considered obsolete today. [33]
4.2 Our courts have more recently held, in respect of the
concept of unworthiness, that this should not be limited to
the specific grounds of conduct mentioned by the Roman-
Dutch authorities, but is applicable in analogous
circumstances, or even as a general overarching doctrine
enabling the courts to disqualify a beneficiary on grounds
other than those specified by the Roman-Dutch authorities,
on the basis
Page 141
of the current norms of public policy. This development is

considered below. [34] The specific grounds referred to by
the Roman-Dutch writers which have been considered by
our courts are dealt with first.
4.3 A person who unlawfully causes the death of a person
cannot take a benefit under that person’s will or intestate
estate. [35] Thus a murderer cannot benefit under the will of
the person whom he or she has murdered. [36] Van
Leeuwen [37] states that not only the killer but also those
giving counsel or assistance to the killer are considered

unworthy and disqualified. Voet [38] includes under the
description of unworthy persons those who have negligently
brought about the death of the testator, and in Casey v The
Master [39] McLaren J held that this remains our law on the
grounds of principle and public policy. [40]
Page 142
4.4 Where the killing is justified, such as in self-defence,

there is clearly no disqualification. [41] The killer must have
had a blameworthy state of mind. Thus, where the killer is
mentally disturbed at the time of the killing and not
criminally responsible for his or her actions, the killer is not
precluded from inheriting from the person killed. [42] The
fact that the testator does not die of the injuries inflicted by
the killer immediately but lives for some considerable time
before dying and does not revoke the bequest does not
have the effect of enabling the killer to take a bequest from
the testator. [43]
4.5 A killer may, however, take a benefit from an heir or
legatee of the person he or she has killed, as it is only
unworthiness in relation to the deceased which
Page 143
has the effect of disqualifying the killer from taking a

benefit from the deceased. [44] However, the rule that a killer
is not precluded from inheriting from the heir of the victim
is subject to an exception. Where the victim and the victim’s
heir are persons closely linked by ties of relationship or
marriage (conjunctissimae personae), a crime against the
one is regarded as an attack against the other. In that case,
the killer will be considered disqualified from inheriting from
either on the ground of unworthiness. [45] This exception is
generally cited where the conduct directed against the

conjunctissimus is homicide and the applicability of the
exception in such a case has, as pointed out, been endorsed
in our law. However, there does not appear to be any
reason why this exception should not apply to other forms
of misconduct directed against a conjunctissimus. [46] It
seems that only the testator’s spouse, parents and children
are considered to be conjunctissimi and that the testator’s
brothers, sisters and grandchildren or more remote relatives
would not be included. [47] In exceptional circumstances, the
class might be widened to include, for example, a
grandchild who had been brought up by a grandparent. [48]
4.6 The general principle that a person may not be
enriched by his wrongful conduct is clearly applicable to a
beneficiary who unlawfully kills the testator. There must,
however, be a causal connection between the killing – the
wrongful act – and the enrichment. [49] It has been held that
where a father killed his child’s grandparents (the child
being heir to the grandparents), on the death of the child,
the father would not be precluded from taking a benefit
from the estate of the child, as the cause of the father’s
enrichment was not the killing but the death of the child. [50]
On the other hand, it has been held that the rule which
precludes a beneficiary who has unlawfully killed a person
from taking a benefit under the victim’s will or the victim’s
intestate estate is one of public policy, and there is no
compelling reason why the rule should be limited to benefits
accruing directly
Page 144
from the estate of the victim. It has accordingly been held

that a killer is precluded from taking pension or insurance
benefits to which the killer would otherwise have been
entitled. [51]
4.7 A spouse married in community of property is not

precluded from taking his or her half-share on the death of
the other spouse where such spouse has wrongfully caused
the death of that other spouse; the survivor’s half share
accrues to the surviving spouse by reason of the marriage
and not because of the other spouse’s death. [52] On this
basis, by parity of reasoning, it would appear that the
application of the accrual system in a marriage by
antenuptial contract would not be affected by the rule. [53]
However, in Leeb v Leeb, [54] it was held that on the basis of
the public policy rule that no one can be enriched by his or
her crime, a court may declare the murderer’s benefit from
the joint estate of the spouses forfeited. It was held
Page 145
that in regard to the forfeiture, the court could take into

account the respective contributions of the spouses to the
joint estate. It has been suggested that the same approach
should be adopted in regard to claims under the accrual
system in cases of marriages out of community of property
with the accrual system. [55]
4.8 In Marais v Botha [56] it was held that a person charged
with conspiracy to kill the deceased was prohibited from
becoming an executor in the deceased’s estate, and in Pu v
Ranchod [57] it was held to be contrary to public policy for a
person to be appointed an executor in the estate of a
person he or she has killed or has been accused of killing. It
may be against public policy, having regard to the special
nature of the office of an executor, [58] for an executor to be
appointed to administer the estate of a deceased where the
executor has merely been charged with conspiracy to kill
the deceased or has been accused of killing the
deceased. [59] However, the ordinary rule is that before a
beneficiary can be disqualified on the grounds of
unworthiness, the conduct relied upon must be proved in

the proceedings to declare the beneficiary unworthy in the
ordinary way. [60] In Smit v The Master of the High Court,
Western Cape [61] the unlawful conduct was proved in the
case to declare the offending person unworthy (the
indignus) and it was held, correctly it is submitted, that the
indignus, who had conspired to kill the deceased, was not
entitled to be an executor in the deceased’s estate or to act
as a trustee in the trusts created in the deceased’s will.
Page 146
4.9 The question arises whether an unworthy person is

entitled to claim support from the estate of a spouse,
parent or child who the unworthy person has killed. In Ex
parte Hauptfleish [62] an application was granted for the
payment of a sum of money out of the estate of the
applicant’s mother to provide funds for the applicant’s legal
defence after he was charged with her murder. In Caldwell v
Erasmus [63] Blackwell J refused a similar application but did
so on the ground that the reciprocal duty of support which
exists between husband and wife and parent and child is
restricted to necessaries and that on the facts of that case,
the cost of providing the applicant with counsel was not a
necessary. It was not suggested that an indignus who was
indigent would be precluded from receiving maintenance on
the grounds of unworthiness. In Smit v The Master of the
High Court, Western Cape [64] the judge held that the
indignus was not entitled to claim support from the estate
of her spouse on the ground that it constituted a benefit to
which she was not entitled because of her unworthiness.
This issue may yet give rise to debate in the future. [65]
4.10 In Taylor v Pim [66] it was held that where a
beneficiary had caused the deceased’s descent into an
immoral and degraded life by having an adulterous
relationship with her, had encouraged her to drink

intoxicating liquor which ultimately caused her death, and
had neglected to provide her with medical attention, such
beneficiary was unworthy and disqualified from taking any
benefits under her will.
4.11 In Ex parte Steenkamp and Steenkamp [67] Steyn J
referred to the fact that in Roman-Dutch law a beneficiary
who committed adultery with the testator’s wife was
considered unworthy. The judge posed the question whether
the fact that adultery was no longer a crime in our law
affected this ground of unworthiness but expressed no view
in this regard.
Page 147
4.12 Voet’s view [68] that a beneficiary who has concealed

the testator’s will is unworthy was considered in Yassen v
Yassen. [69] The court appeared to accept that such conduct
would make the beneficiary unworthy but pointed out that
Voet’s view in this regard was based on the premise that
the document concealed was a valid will. It was, however,
not necessary for the court to pursue this issue as the
plaintiffs were, in any event, non-suited on the ground that
it had not been proved that the document which was
concealed or destroyed – if there was indeed such a
document – was a will. [70] Concealing, destroying or
altering an invalid will can have no effect on the succession
and cannot result in the perpetrator being enriched.
4.13 Voet states that if a person by the use of fraud or
duress prevents a testator from making a will, such person
is unworthy and disqualified from taking a benefit under an
earlier will or on intestacy on the basis that such person
should forfeit all gain which he or she would otherwise
derive from his or her actions. [71] This ground of
disqualification has never been considered by our courts. [72]
However, having regard to the policy consideration that no

one should be permitted to benefit from his or her wrongful
act, it can confidently be predicted that Voet’s statement
will, should the occasion arise, be implemented by our
courts if the necessary causal connection is proved. The
same writer states that this principle applies equally to a
person who by fraud or duress causes a testator to make a
will or a particular
Page 148
bequest in such person’s favour. [73] In this latter case,

however, the testator will not have exercised his or her free
will, and the will or bequest will, in any event, be invalid on
that account. [74]
4.14 Prior to the recent decisions in Makhanya v Minister
of Finance, [75] Pillay v Nagan [76] and Danielz v De Wet [77] it
was not clear whether the courts would be prepared to
extend the specific categories of conduct recognised by the
Roman-Dutch authorities as conduct precluding a
beneficiary from inheriting. The view that the courts were
free to do so has its source in the decision in Taylor v
Pim [78] and the reference in that case to the French writer
Domat, [79] who stated that the causes which may render an
heir unworthy are not limited and depend on the
circumstances of each case. [80] In Ex parte Steenkamp and
Steenkamp [81] Steyn J, after a review of the authorities,
stated inter alia that he was not prepared to hold that
Taylor’s case and its reliance on Domat constituted clear
authority that the court could do so.
4.15 However, in Makhanya, where the deceased was
murdered by his wife and the issue was whether the
deceased’s wife was entitled to receive certain statutory
pension benefits accruing to the deceased’s estate, it was
held that she was precluded from receiving these benefits.

The judge referred to the rule that a person who murdered
another was precluded from taking a benefit under that
person’s will and on intestacy. This rule, said the judge,
should, on the basis of
Page 149
public policy, be extended to include the instant case where
the benefits took the form of pension benefits. In Pillay v
Nagan [82] it was held, by analogy with the case where a
legatee concealed a will in order to deprive an heir of an
inheritance, that a person who forged a will in order to
deprive his brothers and sisters of inheriting on intestacy
was unworthy and was precluded from inheriting under the
deceased’s intestate estate. The judge referred to Taylor v
Pim [83] and Domat [84] and was clearly of the view that it
was open to the court, on the grounds of public policy, to
disqualify as unworthy a person on a ground other than one
referred to in the authorities. In Danielz v De Wet [85] the
deceased’s wife was the beneficiary under certain life-
insurance policies taken out by the deceased during his
lifetime. She had organised and assisted in facilitating an
assault on the deceased, who died as a result of the assault
and was thus found guilty of certain criminal offences. In
the civil proceedings, it was accepted that the assault was
the cause of the testator’s death. In this case, the court
went further than finding that the specific grounds of
unworthiness referred to by the Roman-Dutch authorities
could be extended by analogy. The court held that these
grounds were not static and that the common law should be
developed to include additional grounds, namely, grounds
that currently offended the boni mores of society.
4.16 It thus appears from the decided cases that three
possible bases [86] can be relied upon to find that a
beneficiary is precluded from taking a benefit from a
deceased estate or that a benefit may not accrue to the

beneficiary from another source. [87] The first is the
overarching principle that no one can benefit from his or her
wrongful conduct. [88] The second is constituted by the
specific grounds of unworthiness referred to by the Roman-
Dutch authorities which have been applied by our courts.
The third is the series of decisions in Makhanya, Pillay and
Danielz above, which have held that unworthiness is not
limited to the specific grounds of unworthiness hitherto
recognised in our law but can, on the basis of public policy,
be extended to include analogous or new grounds. However,
these cases overlook the fundamental principle that no one
can benefit from his or her wrongful conduct; this principle
could have been applied, rendering
Page 150
it unnecessary to resort to extending the existing grounds

of unworthiness. [89] Moreover, in Pillay, the perpetrator
could have been held to be unworthy because of the specific
ground of unworthiness referred to by Grotius [90] It is
submitted that this applies equally to a person who forges a
will. More importantly, none of these cases referred to the
decision in Ex parte Steenkamp v Steenkamp. [91] In Pillay
and Danielz, Domat was cited with apparent approval,
without any discussion of the comments about this author
in Steenkamp. [92] On the other hand, these decisions
introduce flexibility that is consistent with the fact that the
underlying basis of unworthiness is itself the flexible notion
of public policy. [93]
5. Children Born out of Wedlock,

Incest and Adultery
5.1 Children born out of wedlock (previously referred to as
‘illegitimate children’) are today not precluded from

inheriting under the wills of their parents or anyone else.
The position is now governed by s 2D(1) of the Wills Act [94]
which provides that unless the context of the will indicates
otherwise, the fact that any person was born out of wedlock
shall be ignored in determining his or her relationship to the
testator or another person for the purposes of a will. In
regard to
Page 151
intestacy, this is now [95] regulated by the Intestate

Succession Act, [96] which provides that having been born
out of wedlock shall not affect the capacity of one blood
relation to inherit the intestate estate of another blood
relation. These statutory provisions include children born
out of wedlock as a result of incestuous [97] or adulterous
relationships. Moreover, as adultery is no longer a crime, an
adulterine child may take a benefit, [98] and persons who
have committed adultery may inherit from each other. [99]
Thus extramarital children of any kind now enjoy the same
status as children born in wedlock in regard to testate and
intestate succession. [100]
5.2 Notwithstanding the provisions of s 2D(1), it is clear
that a bequest excluding extramarital children from being
able to inherit will not ordinarily withstand a constitutional
challenge. [101]
6. Adopted Children
6.1 In the case of intestacy, an adopted child is deemed to
be the natural descendant of his or her adoptive parent or
parents, [102] and the adoptive parent is deemed to be the
ascendant of the adopted child. [103] Thus, succession occurs
as if the adopted child was a natural child.
Page 152
6.2 In the case of testacy an adopted child can, if

nominated in the will as a beneficiary, take under the will of
his or her adoptive or natural parent or anyone else. [104]
Where an adopted child or more remote descendant is
nominated, the question may arise whether the testator
intended to include an adopted child or descendant. In this
regard, s 2D(1) of the Wills Act [105] provides inter alia that
in the interpretation of a will, unless the context otherwise
indicates, an adopted child shall be regarded as being born
from his or her adoptive parent or parents.
6.3 In regard to the application of constitutional principles
to adopted children, see chapter 18 § 5.11 below.
7. Persons Witnessing, Signing or

Writing Out a Will and Their Spouses
7.1 Section 4A(l) of the Wills Act [106] provides that any
person who attests [107] and signs a will as a witness, or who
signs a will in the presence and by the direction of the
testator, or who writes out the will or any part thereof in his
own handwriting, and the person who is the spouse of such
person at the time of the execution of the will, is
disqualified from receiving any benefit under that will. [108]
Page 153
7.2 A person who writes out a will can only do so ‘in his
own handwriting’. The use of these words was presumably
intended to make it clear that the disqualification does not
apply to a person who types out a will [109] or who dictates a
will. Nor will a person who writes out a draft which is
subsequently typed or written out by someone else be
disqualified, as it seems that the word ‘will’ in the section

does not include a draft. [110]
7.3 Under the common law, the disqualification attaching
to the writer of the will did not apply where the testator
confirmed the bequest after the execution of the will. [111]
Confirmation will no longer serve to enable the writer of the
will to take a bequest in the will in the writer’s favour.
Section 4A(2)(a) specifically sets out the circumstances
which enable the court to declare a person entitled to take a
benefit despite the prohibition set out in s 4A(l) and, by
implication, excludes any other circumstances.
7.4 Under the common law, the disqualification attached if
at least that portion of the will conferring a benefit on the
writer was written out by the writer, [112] unless the bequest
was confirmed. Section 4A(1) speaks of ‘any part’ of the
will. It is thus clear that whether or not the writer wrote out
that part of the will which conferred a benefit on the writer,
if the writer wrote out any part, the writer will be
disqualified from taking any benefit under the will.
7.5 The general principle set out in s 4A(1) is subject to
the qualification and exceptions set out in s 4A(2), which
provides as follows: [113]
(a) a court may declare a person or his or her spouse at
the time of the execution of the will to be competent
to receive a benefit from a will if the court is
satisfied that that person or spouse did not defraud
or unduly influence the testator in the execution of
the will; [114]
Page 154
(b) a person or his or her spouse who, in terms of the

law relating to intestate succession, would have
been entitled to inherit from the testator if that
testator had died intestate, will not be disqualified to

receive a benefit from that will, provided that the
value of the benefit which the person or spouse
concerned receives does not exceed the value of the
share to which that person or spouse would have
been entitled in terms of the law relating to intestate
succession; [115]
(c) a person or his or her spouse who attests and signs
a will as a witness will not be disqualified from
receiving a benefit from that will if the will
concerned was attested and signed by at least two
other competent witnesses who do not receive any
benefit from the will concerned.
7.6 In Blom v Brown [116] the testator dictated his will to his
wife, who wrote it out. The issue was whether the testator’s
wife was disqualified from inheriting. It was argued that
s 4A(2)(a) was applicable only to non-family members and
that s 4A(2)(b) was applicable only to family members so
that the wife would not be entitled to rely on s 4A(2)(a) and
could inherit no more than her intestate portion in terms of
s 4A(2)(b). The argument was rejected. It was held that the
distinction contended for was neither logical nor compatible
with the plain language of the section. Where a beneficiary
is entitled to inherit pursuant to s 4A(2)(a) the beneficiary
is entitled to inherit his or her full inheritance in terms of
the will and is not limited to his or her intestate portion. [117]
7.7 Section 4A(3) provides that for the purposes of sub-ss
(1) and (2)(a) and (c) the nomination in a will of a person
as executor, trustee or guardian will be regarded as a
benefit to be received by such person from that will. Section
6 of the Act, prior to its repeal, referred to both an
‘administrator’ and a ‘trustee’. Section 4A(3), which does
not refer to an ‘administrator’, does not, however, introduce
any change, as a testamentary administrator is a
trustee. [118]
Page 155
8. The Consequences of the

Disqualification to Inherit
8.1 Under the common law, where a beneficiary is
disqualified from inheriting, no rights vest in the beneficiary
and the bequest is not transmitted to the beneficiary’s
heirs. [119] The common law has in this respect to some
extent been modified by s 1(7) of the Intestate Succession
Act [120] and s 2C(2) of the Wills Act, [121] so that a
descendant, in the former case of a disqualified person, and
in the latter case of a disqualified descendant, are
substituted as beneficiaries. [122]
[*] This chapter was originally contributed by Gys Hofmeyr and revised by
him for the second and third editions.
[1] Grotius 2.16.2. Under the common law a nasciturus, that is, a child in
ventre matris (a child conceived prior to the death of the deceased but not yet
born) is treated as alive for the purpose of inheriting if the inheritance is to
the benefit of the child and the child is subsequently born alive. See De Waal
and Schoeman-Malan Succession § 6.2.1 and chapter 21 §§ 8.5 and 8.8
below. Even where the nasciturus survives only momentarily after birth, the
nasciturus is capable of inheriting, and the inheritance is transmissible to his
or her intestate heirs: Jamneck et al Succession 110. In regard to testate
succession this rule has now been encapsulated in s 2D(1)(c) of the Wills Act
7 of 1953: see chapter 21 §§ 8.5 and 8.8 and chapter 22 § 3.4 below. This
does not preclude a testator from conferring a benefit on a person not yet
conceived: De Waal and Schoeman-Malan Succession 111, who give the
example of a fideicommissum.
[2] Voet 28.5.2. However, only a natural person can inherit on intestacy. In
regard to testate succession, a group of persons not having legal personality,
for example, a syndicate, can inherit provided the intended beneficiaries can
be identified.
[3] Thus infants, prodigals and mentally incapacitated persons are not
disqualified.
[4] Attesting Witnesses Act 22 of 1876 (Cape) s 3; Wills Ordinance 14 of
1903 (Transvaal) s 3; Wills Ordinance 11 of 1904 (Orange Free State) s 3;

Law 2 of 1868 (Natal) s 7; Proclamation 23 of 1920 (South-West Africa) s 3.
[5] Act 7 of 1953.
[6] Act 43 of 1992.
[7] Section 15.
[8] Section 8.
[9] Jamneck et al Succession § 7.2.
[10] The natural guardian of a minor is, subject to the terms of the will (if
any), entitled to receive movable property to which the minor is entitled:
s 43(1) of the Administration of Estates Act 66 of 1965. This is subject to
s 43(2) of the Act in relation to money to which the minor becomes entitled
and the provision of security. In regard to immovable property inherited by
the minor, this is not transferred to the minor’s guardian but is registered in
the minor’s name: s 25 of the Deeds Registries Act 47 of 1937 read with ss 39
and 43 of the Administration of Estates Act 66 of 1965.
[11] While a beneficiary of unsound mind is capable of acquiring an
inheritance, if such person is declared by a court to be of unsound mind or to
be mentally incapable of managing his or her affairs, a curator bonis may be
appointed by the court to manage such person’s affairs. Thus, an inheritance
accruing to such a person under curatorship will be administered by the
curator. If no curator has been appointed and the person acquires an
inheritance, application may be made to court to appoint a curator. See
further s 43(6) of the Administration of Estates Act 66 of 1965.
[12] Where a person has been declared by the court to be a prodigal, that
declaration and the concomitant interdict will limit the manner in which the
prodigal can deal with his or her property, including an inheritance.
[13] Sequestration does not prevent the insolvent from inheriting but an
inheritance accruing to an insolvent cannot be dealt with by the insolvent – in
the absence of a contrary provision in the will, it falls into the insolvent’s
estate and must be administered by the insolvent’s trustee: s 20 of the
Insolvency Act 24 of 1936. As to the effect of repudiation by the insolvent,
see chapter 2 §§ 3.9ff above.
[14] Thomas v Clover 2002 (3) SA 85 (N) at 92G. In testamentary
succession, this generally occurs on the death of the testator, but may be
postponed by the testator. Where the deceased dies without leaving a valid
will, vesting occurs on the death of the deceased. Where a will becomes
inoperative subsequent to the deceased’s death, vesting occurs when it is
established that this has occurred. See chapter 11 § 2 below.
[15] Thomas v Clover 2002 (3) SA 85 (N) at 92G. Voet 30–32.10 states
that a beneficiary must, in addition, have capacity at the date of execution
but, as pointed out by Lee and Honoré Succession § 590, this requirement
must be regarded as obsolete. Voet’s view, moreover, would appear to conflict
with the general rule that a will speaks from the date of the testator’s death
(when vesting would normally take place) and not from the date of execution:
see chapter 4 § 4.2 above and chapter 21 § 4.1 below.

[16] Yassen v Yassen 1965 (1) SA 438 (N) at 441G–H; Casey v The Master
1992 (4) SA 505 (N) at 507C–D; Thirion v Die Meester 2001 (4) SA 1078 (T)
at 1091D–E.
[17] The Perpetual Edict of 4 October 1540 Groot Placcaet-boeck (The
Hague 1658–1796) 318. For the reasons for this prohibition, see Voet
28.5.10.
[18] Groot Placaet-Boeck (The Hague 1658–1796) 318. For the reasons for
this prohibition, see Voet 28.5.10.
[19] See the authorities cited in Voet 28.5.8 and Spies v Smith 1957 (1) SA
539 (A) at 551.
[20] Voet 28.5.9 and the authorities cited in Spies v Smith 1957 (1) SA 539
(A) at 551.
[21] Voet 28.5.11.
[22] Voet 28.5.8.
[23] 1957 (1) SA 539 (A).
[24] At 551A–552. The South African Law Commission in its Report on
Project 22 Review of the Law of Succession § 4.40 concluded that there were
so few cases in which the grounds of disqualification in art 12 would apply
that special legislation to repeal it was not justified. However, the opportunity
was not taken to determine the unanswered question of whether art 12 is part
of our law. According to Van der Merwe in Van der Merwe and Rowland Erfreg
225 our courts may possibly restrict the application of art 12 to cases where
there has been undue influence, a view supported by Schoeman (1992) 25 De
Jure 38 at 41.
[25] Section 17 of the Children’s Act 38 of 2005.
[26] Placaat of Charles V of 4 October 1540 (Perpetual Edict) art 17; GPB
319. The ages of minority under the Placaat were, in the case of females,
under 20 years and, in the case of males, under 25 years. In modern law, the
prohibition would apply to males and females under the age of 18 years: s 17
of the Children’s Act 38 of 2005. The Placaat was in this respect referred to
and applied in Mostert v The Master 1878 Buch 83 at 85 and Ex parte Dineen
1955 (4) SA 49 (O) at 54A–B. See further Grotius 2.16.5; Voet 23.2.11 and
28.5.7; Van Leeuwen CF 1.3.4.51.
[27] Article 17 was repealed by s 37 of the Matrimonial Property Act 88 of
1984. Section 34 of that Act inserted s 24A into the Marriage Act 25 of 1961,
which states that a marriage by a minor is not void for want of consent by his
or her parents or guardians but makes provision for the dissolution of the
marriage by the court in certain circumstances. Section 24(2) of the
Matrimonial Property Act states that if the marriage is not dissolved, its
patrimonial consequences are those that would follow if the minor was of age
when the marriage was entered into. Any antenuptial contract in terms of
which the accrual system is included is deemed validly executed.
[28] See generally De Waal and Schoeman-Malan Succession 116ff;
Jamneck et al Succession §§ 7.4ff; LAWSA 2 ed vol 31 para 278; Lee and
Honoré Family, Things and Succession para 593; Pace and Van der
Westhuizen Wills and Trusts para A10; Van der Merwe and Rowland Erfreg
238ff; Du Toit 2012 Stell LR 137; De Waal and Zimmerman in Mostert and De
Waal Essays CG van der Merwe 169.
[29] A general unworthiness such as faults of character or conduct will not
disqualify a beneficiary: Smith v Bird 1924 NPD 381 at 383; Lee and Honoré
Family, Things and Succession para 593; De Waal and Schoeman-Malan
Succession § 6.3.1; Cronje and Roos Casebook 181. The unworthiness must
relate to a particular deceased (Van der Merwe and Rowland Erfreg 239) or in
some cases to his or her conjunctissimae personae (§ 4.5 below).
[30] See the authorities referred to in Ex parte Steenkamp and Steenkamp
1952 (1) SA 744 (T) at 752G–H.
[31] Principal Immigration Officer v Bhula 1931 AD 323 at 330; Parity
Insurance Co Ltd v Marescia 1965 (3) SA 430 (A) at 435A–B; Leeb v Leeb
[1999] 2 All SA 588 (N) at 594.
[32] Notably Voet 34.9; Van Leeuwen RHR 3.3.9–20.
[33] Taylor v Pim (1903) 24 NLR 484 at 492; Danielz v De Wet 2009 (6) SA
42 (C) para [38].
[34] See §§ 4.14–16 below.
[35] The South African Law Commission in its Report on Project 22 Review
of the Law of Succession §§ 4.8–4.12 (see also its Working Paper 19 Project
22 §§ 2.24–2.28) concluded that, in practice, if the beneficiary is tried for the
alleged crime, the executor awaits the decision of the trial court. If the
beneficiary is not tried, the executor should investigate the matter and make
his or her own decision, leaving it open to review and objection by interested
parties. In Ferreira v Die Meester 2001 (3) SA 365 (O) an objection to the
estate accounts was lodged with the Master on the grounds that a beneficiary
was responsible for the death of the deceased and was hence disqualified
from inheriting from the deceased. The court held inter alia that it was
doubtful whether the Master had the capacity to make a finding that someone
caused the death of another; that capacity vested only in a court. It is
submitted that this finding is equally applicable in regard to other grounds of
unworthiness; only a court can declare a person unworthy and disqualified to
inherit.
[36] See, for example, Ex parte Steenkamp and Steenkamp 1952 (1) SA
744 (T); Ex parte Wessels and Lubbe 1954 (2) SA 225 (O); Nell v Nell 1976
(3) SA 700 (T).
[37] RHR 3.3.9.
[38] Voet 34.9.6.
[39] 1992 (4) SA 505 (N) at 510F–G.
[40] In coming to his conclusion, McLaren J adverted to Caldwell v Erasmus
1952 (4) SA 43 (T), Taylor v Pim (1903) 24 NLR 484, and the general
principle that no person may benefit from his or her own crime or from
conduct which is punishable. See Van der Walt and Sonnekus 1981 TSAR 30
and the view expressed in the note in (1913) 30 SALJ 460. McLaren J was
mindful of the fact that the application of the rule to all cases of negligence
(for instance, the negligent driving of a motor vehicle) may be harsh, but was
of the view that this matter should enjoy the attention of the legislature,
which should make provision for the relaxation of the rule (at 510H–511A).
The basis of the unworthiness rule is public policy, and where the conduct is
not morally reprehensible, it has been suggested that it should not constitute
a ground of unworthiness and, it may be added, if the courts are prepared to
extend the grounds of unworthiness on the basis of public policy, they should
be prepared to limit the grounds on the same basis. Thus de lege ferenda the
decisive question in each case would be whether or not the negligent conduct
can be considered to be so morally reprehensible that to allow the perpetrator
to inherit would be against public policy. But this does not appear to offer a
complete answer to the problem because our Roman-Dutch authorities are
clear that if the conduct is punishable, it will give rise to disqualification.
Negligent driving may be punishable, but not morally reprehensible. Indeed, it
may be said to be against the policy of our law to fail to implement the
testator’s will and disqualify the offender in these circumstances. It thus
seems that the solution is for our courts to hold that the Roman-Dutch
authorities are in this respect no longer applicable, failing which legislative
intervention may be required. See further LAWSA 2 ed vol 31 para 278 n 2
and the reference to Cronje and Roos Casebook 188. In June 1991, the South
African Law Commission in its Report on Project 22 Review of the Law of
Succession had recommended a general power to relax the rule, but this
recommendation was not accepted. See generally Van der Merwe and
Rowland Erfreg 104–5; De Waal and Schoeman-Malan Succession 117;
Jamneck et al Succession 114; Schoeman (1994) 57 THRHR 114; Van der
Walt and Sonnekus 1981 TSAR 30 and 1992 TSAR 147; Skeen (1993) 110
SALJ 446 (the author contends that the Maintenance of Surviving Spouses Act
27 of 1990 does not alter the position); McLennan (1996) 113 SALJ 143. Van
der Merwe in Van der Merwe and Rowland Erfreg 104–5, after dealing with the
uncertainty in regard to the question of the extent to which the negligent
killing of the deceased gives rise to unworthiness, states that it appears that
negligently causing the death of a conjunctissimus of the deceased (see § 4.5
below) will not result in the killer being unable to inherit from the deceased.
No authority is cited in support of this proposition. Given the rationale of
identifying a conjunctissimus with the deceased, if the conduct is sufficiently
morally reprehensible so that it offends public policy to allow the perpetrator
to inherit, it is difficult to understand the logic of a distinction in this respect
between conduct directed against the deceased and conduct directed against
a conjunctissimus.
[41] Voet 34.9.7.
[42] Ex parte Meier 1980 (3) SA 154 (T); Gafin v Kavin 1980 (3) SA 1104
(W). See also Van der Walt and Sonnekus 1981 TSAR 30 at 43–5.
[43] Voet 34.9.6.
[44] See Van der Merwe and Rowland Erfreg 239; Ex parte Steenkamp and
Steenkamp 1952 (1) SA 744 (T) at 748C–749C.

[45] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at 749F–
750F.
[46] Compare Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at
749E–H.
[47] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at 751H–
752A; Hahlo (1952) 69 SALJ 136 at 137.
[48] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at 752A–C.
[49] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at 753A–G;
Nell v Nell 1976 (3) SA 700 (T) at 704H–705; Thomas v Clover 2002 (3) SA
85 (N) at 93C–E. Note the tests applied in Steenkamp at 753C–H to
determine whether the necessary causal connection existed: compare Danielz
v De Wet 2009 (6) SA 42 (C) at 49H–J.
[50] Ex parte Steenkamp and Steenkamp 1952 (1) SA 744 (T) at 753. See,
however, the criticism by Hahlo (1952) 69 SALJ 136 on the question whether
there was, on the facts, a sufficient causal connection in this case.
[51] Makhanya v Minister of Finance 2001 (2) SA 1251 (D), previously
reported in [1997] 2 All SA 227 (D); Danielz v De Wet 2009 (6) SA 42 (C).
See further § 4.15 below.
[52] Ex parte Vonzell 1953 (1) SA 122 (C) at 126B–E; Nell v Nell 1976 (3)
SA 700 (T); Casey v The Master 1992 (4) SA 505 (N) at 506H–J. See Hahlo
(1953) 70 SALJ 1 for criticism of Vonzell and see further Schwarz 1953 Annual
Survey 66–7. In Nell, the spouses had been married in community of
property. The wife had murdered her husband. It was held (at 704H–705A)
that although the wife had accelerated the termination of the dissolution of
the marriage with the consequent results, she had received no more than she
was entitled to by reason of her marriage to the deceased in community of
property and there was, accordingly, no causal connection between the crime
and the benefit which the wife received. It was thus held that the court could
not order her to forfeit any benefits flowing from the marriage in community.
See Hahlo (1976) 93 SALJ 376 for criticism of Nell. Murray 1976 Annual
Survey 252–5 considered the result unsatisfactory and suggested that there is
scope in our law for reaching the opposite conclusion: if public policy is an
overarching touchstone which can be applied to establish unworthiness (see
the last note to § 4.16 below) public policy might be invoked in this regard to
prevent the wrongdoer from being benefited.
[53] This result also seems unjust and unsatisfactory (see the immediately
preceding note) insofar as it enables the wrongdoer to benefit from the
wrongful act. Apart from broad considerations of public policy, it may be
suggested that s 9 of the Matrimonial Property Act 88 of 1984, which allows
the court to declare forfeited a right to share in the accrual of the estate of a
spouse on divorce, could be invoked where a spouse causes the marriage to
be dissolved by unlawfully causing the death of his or her spouse (compare
Schoeman (1992) 25 De Jure 38 at 49 n 96). However, the South African Law
Commission in its Report on Project 22 Review of the Law of Succession §§
4.3–4.6 concluded that benefits under matrimonial property law should not be
forfeited; there are sufficient sanctions, it believed, both civil and criminal.
[54] [1999] 2 All SA 588 (N) at 595. Thirion J pointed out that a spouse
through whose fault the marriage ends in divorce forfeits the benefits of the
marriage in community of property and that there seems to be every reason
why a spouse who chooses to obtain his or her freedom through murder
rather than divorce should be in no better position.
[55] De Waal and Schoeman-Malan Succession § 6.3.3.1; Jamneck et al
Succession 118.
[56] 2009 JDR 0020 (C).
[57] 2005 JOL 15767 (ZH) at 5. See the authorities cited in the first note to
chapter 2 § 2.5 above.
[58] See chapter 2 § 2.5 above.
[59] These considerations would also apply to a trustee.
[60] It is not necessary to obtain a criminal conviction in order to have a
beneficiary declared unworthy. Indeed, a finding in criminal proceedings that
the beneficiary has been found guilty of the offence alleged to constitute
unworthy conduct is not admissible in subsequent civil proceedings as proof of
the conduct in question. This rule of evidence, which comes to us from English
law, and which has come to be known as the rule in Hollington v Hewthorn
after the case of that name in the English Court of Appeal ([1943] 2 All ER
35), has been criticised but is part of our law (see, for example, Ex parte
Vonzell 1953 (1) SA 122 (C) at 125; Danielz v De Wet 2009 (6) SA 42 (C)
paras [16]–[18]; Leeb v Leeb [1999] 2 All SA 588 (N) at 599) although it has
been suggested that its effect has been mitigated by a court’s discretion to
admit hearsay evidence in terms of s 3(1)(c) of the Law of Evidence Act 45 of
1988: see Wood-Bodley (2010) 127 SALJ 605 at 608. Similarly, if the
beneficiary is found not guilty of the conduct in question in criminal
proceedings, this does not preclude a finding in subsequent civil proceedings
that the conduct occurred and that the beneficiary is accordingly unworthy to
inherit.
[61] Smit v The Master of the High Court Western Cape [2022] 4 All SA 146
(WCC).
[62] 1925 (1) PH G11 (C).
[63] 1952 (4) SA 43 (T).
[64] Smit v The Master of the High Court Western Cape [2022] 4 All SA 146
(WCC).
[65] For instance could it be successfully argued that, in some
circumstances, to refuse an application for maintenance by an indignus would
leave the applicant destitute and that this would be against public policy. Or
that where the indignus had caused the deceased’s death, because the
indignus ordinarily had a legally recognised claim for maintenance both before
and after the deceased’s death, the indignus had not been enriched. However,
see Jamneck et al Succession 3 ed 118.
[66] (1903) 24 NLR 484.
[67] 1952 (1) SA 744 (T) at 749F–H.

[68] Voet 34.9.2.
[69] 1965 (1) SA 438 (N).
[70] The South African Law Commission in its Report on Project 22 The
Review of the Law of Succession §§ 4.46–4.49 recommended legislation
providing that anyone who conceals or destroys a will intending to derive a
benefit to which such person is not entitled from the estate of a person is
disqualified from inheriting from that person. The recommendation was not
accepted. A person who conceals, destroys, falsifies or damages a document
purporting to be a will commits an offence (s 102(1)(a) of the Administration
of Estates Act 66 of 1965) and may be disqualified from inheriting on the
basis of the general principle that no one may derive a benefit as a result of
his or her wrongful conduct. In addition, such person may be held unworthy
because of the specific ground of unworthiness referred to by Grotius 2.24.24
(citing D 34.9.6), namely, where the beneficiary ‘de erffenisse berooft’
(‘defrauds the inheritance’ according to Maasdorp’s translation at 120). It is
submitted that this applies equally to a person who forges a will.
[71] Voet 29.6.1. Moreover, this writer held the view that the person so
acting was liable in damages to the person who suffered loss as a result of his
or her actions (Voet 29.6.2).
[72] If a person who conceals a will is recognised in our law as unworthy
and disqualified (see § 4.12 above), the disqualification should be equally
applicable to a person who seeks to prevent an act of testation by fraud or
duress. This submission, which appeared in the first edition of this book, was
quoted with apparent approval in Pillay v Nagan 2001 (1) SA 410 (D) at
424G–H. See the last note in § 4.12 above.
[73] Voet 29.6.1.
[74] Chapter 8 §§ 3ff below.
[75] 2001 (2) SA 1251 (D).
[76] 2001(1) SA 410 (D).
[77] 2009 (6) SA 42 (C).
[78] (1903) 24 NLR 484.
[79] Le Lois Civiles 2 para 2550.
[80] Taylor v Pim (1903) 24 NLR 484 at 493.
[81] 1952 (1) SA 744 (T). In this case it was submitted, relying inter alia on
the dicta in Taylor v Pim (1903) 24 NLR 484 at 493 and the reference in that
case to Domat relied on by counsel in support of this submission, that the
specific grounds of unworthiness referred to in the authorities were not
exhaustive but could be extended according to the demands of our law and
the notions of public policy of our time. However, Steyn J stated (at 750F–
751A) that the reference to Domat appeared to have been made in passing,
that it was not a ground for the decision, and that it had not been necessary
to extend the existing grounds of unworthiness to reach the court’s decision.
The judge held that he could not regard the judgment as clear authority for
the extension contended for. In regard to counsel’s further reliance on

Mathaeus Paroemiae 6.8 the judge held that he would hesitate to accept the
writer’s proposition that the grounds of unworthiness could be extended as a
matter of interpretation. It was, however, not necessary for the judge to make
any ruling on either submission. In Yassen v Yassen 1965 (1) SA 438 (N) at
441B–F the court showed little enthusiasm for Domat’s view.
[82] 2001 (1) SA 410 (D) at 424H–J. See further the last note to § 4.12
above.
[83] (1903) 24 NLR 484.
[84] Les Louis Civiles 2 para 2550.
[85] 2009 (6) SA 42 (C).
[86] Compare Barnes and Thompson 2014 Acta Juridica 123 para 1.
[87] For example, a pension or insurance benefit accruing to the beneficiary
from a nomination made by the deceased: see § 4.15 above.
[88] The only possible uncertainty relating to this principle is whether the
wrongful conduct embraces conduct gravely inimical to the deceased but
falling short of a criminal or civil wrong. Cronje et al Erfreg 15 think that it
does.
[89] See the comments of Knoetze 1998 TSAR 781 to this effect in relation
to the decision in Makhanya and the same view expressed by Barnes and
Thompson 2014 Acta Juridica 123 at 129 in relation to the decisions in Pillay
and Danielz. The latter authors point out in addition that the view that the
existing grounds of disqualification can be extended on the grounds of
contemporary public policy gives rise to an additional overarching touchstone
that can be resorted to in order to establish unworthiness. This, state the
authors, is undesirable and creates uncertainty.
[90] Grotius 2.24 .24. See the last note to § 4.12 above.
[91] 1952 (1) SA 744 (T).
[92] In this case, it was submitted, relying inter alia on the dicta in Taylor v
Pim (1903) 24 NLR 484 at 493 and the reference in that case to the French
writer Domat relied on by counsel in support of this submission, that the
specific grounds of unworthiness referred to by the authorities were not
exhaustive but could be extended according to the demands of our law and
the notions of our time.
[93] Both Pillay and Danielz were considered by Wood-Bodley (2010) SALJ
30. The author argues (at 37) that the approach in Steenkamp stultifies the
law and favours the view taken in Pillay where the extension was in respect of
analogous grounds rather than the recognition of new grounds, constituting ‘a
radical departure’ from the status quo adopted in Danielz.
[94] Act 7 of 1953.
[95] Under the common law, children born out of wedlock could not inherit
under their father’s intestate estate but could inherit under their mother’s
intestate estate: Van der Merwe and Rowland Erfreg 107–9.
[96] Act 81 of 1987 s 1(2). See chapter 23 § 3.19 below.
[97] Incestuous children were in Roman-Dutch law precluded from taking
benefits under the will of their father and in North Holland were precluded
from taking benefits from either their father or mother; such children could,
however, benefit to the extent necessary for their maintenance: see the
authorities cited in Green v Fitzgerald 1914 AD 88 at 108. Voet 28.2.14 took
the view that incestuous parents could not take benefits from the children
born of their incestuous union except possibly to the extent of their necessary
maintenance. In the view of the same writer (Voet 28.5.6) and Van Leeuwen
RHR 3.3.10, persons committing incest could not inherit from each other. It is
not clear whether these prohibitions form part of our law.
[98] Green v Fitzgerald 1914 AD 88.
[99] Estate Heinamann v Heinamann 1919 AD 99.
[100] See Jamneck et al Succession § 7.2.4.
[101] See the Constitution ss 9 and 10 and the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000; and compare King v De
Jager 2021 (4) SA 1 (CC) and Wilkinson v Crawford 2021 (4) SA 323 (CC).
[102] Intestate Succession Act 81 of 1987 s 1(4)(e). See further the
Children’s Act 38 of 2005 s 242(3). In Flynn v Farr 2009 (1) SA 584 (C) it was
held that s 1(4)(e) applied only to a legally adopted child and not to a child
simply treated as the parent’s own child.
[103] Intestate Succession Act 81 of 1987 s 5.
[104] De Waal and Schoeman-Malan Succession § 112.
[105] Act 7 of 1953.
[106] Act 7 of 1953. Section 8 of the Law of Succession Amendment Act 43
of 1992 repealed ss 5 and 6 of the Wills Act and s 7 of the former Act inserted
s 4A(1). The section eliminates the prohibition in the now repealed s 5 of the
Act in terms of which ‘any person claiming under’ a witness or signatory for
the testator or his spouse at the time of signing was precluded from taking a
benefit. The prohibition had been held inapplicable to anyone directly
substituted under the will for the witness or signatory or his or her spouse
(Ridley v Registrar of Deeds, Natal 1988 (2) SA 262 (N)) but otherwise its
meaning was obscure.
[107] The word ‘attest’ is tautologous. It is no more than a synonym for the
word ‘sign’; a witness does not even have to know that the document he or
she is signing as a witness is a will. See Kahn Huldigingsbundel Paul van
Warmelo 128 at 129. The South African Law Commission in its Report on
Project 22 Review of the Law of Succession § 2.68 felt that too much would
be read into the omission of the word ‘attest’ in s 2(l)(a)(iii) of the Act and for
that reason the word ‘attest’ had to be retained in s 4A(l).
[108] The disqualification does not make the witness incompetent. The
competence of the witness to act as such is determined by s 1 of the Wills Act
7 of 1953. See De Waal and Schoeman-Malan Succession 123 n 85 who
criticise the decision in Venter v The Master 2005 JDR 1333 (T) where this
distinction was not made. The authors point out (at 122) that the section
contains no provision regarding a commissioner of oaths so that it can thus be
deduced that a commissioner of oaths is not disqualified.
[109] Under the common law, the disqualification may have extended to a
person who typed out the will. See Arkell v Carter 1971 (3) SA 243 (R) at
246A–B but see Murray 1971 Annual Survey 223. In regard to the current
position, there seems to be no logic in disqualifying the person who writes out
a will but not disqualifying the person who types it or dictates it.
[110] Compare Smith v Clarkson 1925 AD 501.
[111] Benischowitz v The Master 1921 AD 589; Smith v Clarkson 1925 AD
501; Van Rensburg v Van Rensburg 1963 (1) SA 505 (A).
[112] Ex parte Searle 1941 SR 92.
[113] For a detailed analysis of s 4A see De Waal and Schoeman-Malan
Succession 122–4 and Jamneck et al Succession 122–3.
[114] Thus, one or both of the spouses can be released from the
disqualification. In Theron v Master of the High Court [2001] 3 All SA 507
(NC) and Beukes v Master of the High Court Pretoria [2014] JDR 0708 (GNP)
the section was successfully invoked; in Longfellow v BOE Trust Ltd [2010]
ZAWCHC 117 the reliance on the section failed. The prohibition is against the
persons referred to benefiting and does not affect their capacity to act as
witnesses and hence the validity of the will: De Waal and Schoeman-Malan
Succession 122.
[115] Unlike the situation where s 4A(2)(a) is invoked, the court is not
required to make a declaration. Section 4A(2)(b) applies automatically: Blom
v Brown [2011] 3 All SA 223 (SCA) para [19].
[116] [2011] 3 All SA 223 (SCA) paras [20] and [21]. See further De Waal
2011 Annual Survey 1048–9.
[117] Beukes v Master of the High Court Pretoria 2014 JDR 0708 (GNP)
paras [26]–[28].
[118] Thomas v Clover 2002 (3) SA 85 (N). In this case, it was pointed out
that as executorship is a benefit, the disqualification applies equally if the
person nominated as executor is precluded from inheriting for any other
reason under the common law. Section 4A(1) now makes it clear that only the
spouse at the time of the execution of the will is disqualified.
[119] Compare Caldwell v Erasmus 1952 (4) SA 43 (T) at 46D–E.
[120] Act 81 of 1987.
[121] Act 7 of 1953.
[122] See De Waal and Schoeman-Malan Succession 125.
Page 157

The Law of Succession in South Africa - (Chapter 7 Capacity To Benefit Under A Will or On Intestacy)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

The Law of Succession in South Africa - (Chapter 7 Capacity To Benefit Under A Will or On Intestacy)

Uploaded by

Copyright:

Available Formats

Chapter 7 [*]

Capacity to Benefit under a Will

take benefits conferred upon them by will or on intestacy.

with, and reference should be made to the second edition of

example, a minor beneficiary (including a nasciturus), [10] a

2. Guardians, Administrators and

3. Persons Marrying Minors Without

4. Unworthy Persons and the

under a will or on intestacy because of specific conduct that

of the current norms of public policy. This development is

giving counsel or assistance to the killer are considered

4.4 Where the killing is justified, such as in self-defence,

has the effect of disqualifying the killer from taking a

generally cited where the conduct directed against the

from the estate of the victim. It has accordingly been held

4.7 A spouse married in community of property is not

that in regard to the forfeiture, the court could take into

unworthiness, the conduct relied upon must be proved in

4.9 The question arises whether an unworthy person is

relationship with her, had encouraged her to drink

4.12 Voet’s view [68] that a beneficiary who has concealed

However, having regard to the policy consideration that no

bequest in such person’s favour. [73] In this latter case,

held that she was precluded from receiving these benefits.

deceased estate or that a benefit may not accrue to the

it unnecessary to resort to extending the existing grounds

5. Children Born out of Wedlock,

‘illegitimate children’) are today not precluded from

intestacy, this is now [95] regulated by the Intestate

as if the adopted child was a natural child.

6.2 In the case of testacy an adopted child can, if

7. Persons Witnessing, Signing or

disqualified, as it seems that the word ‘will’ in the section

(b) a person or his or her spouse who, in terms of the

testator had died intestate, will not be disqualified to

8. The Consequences of the

1903 (Transvaal) s 3; Wills Ordinance 11 of 1904 (Orange Free State) s 3;

see chapter 4 § 4.2 above and chapter 21 § 4.1 below.

Steenkamp 1952 (1) SA 744 (T) at 748C–749C.

[67] 1952 (1) SA 744 (T) at 749F–H.

the extension contended for. In regard to counsel’s further reliance on

You might also like