Calculators/Sakrekenaars: Yes/Ja

Requirements for this paper/Benodigdhede vir hierdie vraestel: Other resources/Ander hulpmiddels:
Answer scripts/ Multi-choice cards (A5)/
Antwoordskrifte: Multikeusekaarte (A5):

Attendance slips (Fill-in paper)/ Multi-choice cards (A4)/

X
Presensiestrokies (Invulvraestel): Multikeusekaarte (A4):

Scrap paper/ Graph paper/

Rofwerkpapier: Grafiekpapier:

Type of assessment/ Assessment test 2 Qualification/ BA/B.Com/LLB

Tipe assessering: Assesseringstoets 2 Kwalifikasie:

Module code/ IURI 313 Duration/ 1½ hour

Modulekode: Tydsduur: 1½ uur
Module description/ Law of Succession Max/ 50
Modulebeskrywing: Maks:
Examiner(s)/ Prof A Gildenhuys Date/ 18/04/2023
Eksaminator(e): Ms C Lanser Datum:
Adv S Serumaga-Zake
Internal/Interne N/A Time/ 08:00
moderator(s): Tyd:
External moderator(s)/ Ms S Driver
Eksterne moderator(s):

Submission of answer scripts/Inhandiging van antwoordskrifte: Ordinary/Gewoon

MEMORANDUM – 2023 – ASSESSMENT 2

IURI 313 1/12

INSTRUCTIONS

• Please take note that this is a "fill-in assessment paper". Fill in the blanks provided in this paper with
the appropriate answer(s). When finished, submit the completed paper to the invigilator. Check your
work for accuracy and completeness before submitting it.
• Please remember to complete the student information block on page 1 above. You need not put
your name on this fill-in assessment paper for anonymity purposes. It will be sufficient to use only your
student number. However, you are welcome to provide both your name as well as your student
number, and you will not be prejudiced should you do so. Your student number should always be
provided on all pages.
• The attendance slip on the last page must be completed and handed in upon request of the invigilator.

IURI 313 2/12

QUESTION 1 [10]

1.1 Tom validly executed a will in 1995 that was witnessed by Anna and Ben. He now wants to
ANSWER: execute an amendment to that will by altering the amount of a legacy to his daughter.

G Choose the correct statement/combination of statements:

A. Tom can cross out the original amount and insert the new amount. He must sign
next to the amendment. The original witnesses should also sign next to the
amendment.
B. Tom can cross out the original amount and insert the new amount. He must sign
next to the amendment. New witnesses may be used since the amendment is seen
as a new act of testation.
C. Tom is not allowed to amend the will. He should execute a new will with a revocation
clause.
D. Tom can add a codicil with the following contents: I refer to my will dated 5 March
1995. I direct that the amount of R5 000 in clause 3 shall be increased to R20 000,
and I hereby confirm my said will of 5 March 1995 in all other respects. Tom should
sign the codicil, but no other formalities are required.
E. Tom could add a codicil with the following contents: I refer to my will dated 5 March
1995. I direct that the amount of R5 000 in clause 3 shall be increased to R20 000,
and I hereby confirm my said will of 5 March 1995 in all other respects. The codicil
must comply with all the applicable formalities of section 2(1)(a) of the Wills Act 7
of 1953.
F. A+D
G. B+E

1.2 Testator John executed a valid will in 2018. In 2023 he decided that he wanted to change
ANSWER: the name of one of the beneficiaries. He used a correction pen (“Tippex”) to erase the name
and wrote in the new beneficiary’s name. Will this amendment be valid? Choose the correct
B
statement:

A. Yes, provided he signed next to the amendment.

B. Yes, provided he and two witnesses signed next to the amendment.
C. Yes, provided a Commissioner of Oaths attached the certificate required by section
2(1)(a)(v) of the Wills Act 7 of 1953.
D. No, because one is not allowed to use “Tippex”. The will should have been retyped
and re-executed.
E. No, because a testator/testatrix may never amend his/her will.

IURI 313 3/12

 1.3 Testatrix Susan validly executed two wills during her lifetime, respectively in 2020 and 2022.
ANSWER: The 2022 will did not expressly revoke the 2020 will. Which of the wills will be given effect
to?
E
A. The 2022 will.
B. Both will be invalid, and the rules of intestate succession will apply.
C. The 2020 will.
D. Both wills will be valid. They must be read together and reconciled as far as
possible. If the wills cannot be read together, effect will be given to the 2020 will.
E. Both wills will be valid. They must be read together and reconciled as far as
possible. If the wills cannot be read together, effect will be given to the 2022 will.

1.4 There are two essential elements for the revocation of a will, namely animus revocandi and
ANSWER: a legally recognised act by which the intention to revoke is manifested. What are the legally

E recognised acts?

A. Acts in terms of the common and customary law.

B. Acts in terms of both customary and statutory law.
C. Acts in terms of the customary law.
D. Only statutory acts.
E. Acts in terms of the common law.

1.5
Albert validly executed a will in which he appointed his wife, Jennifer, as his sole heir. He
ANSWER: also appointed her as the executor of his estate. Jennifer was not involved in the execution
C of Albert’s will. Which one of the following statements regarding Jennifer’s position is
correct?

A. Jennifer may only inherit in terms of the will if she rejects her appointment as
executor.
B. Jennifer may only inherit in terms of the will if she would have been an intestate heir
should Albert have died without a will.
C. Jennifer may inherit in terms of the will because her appointment as executor has
no influence on her capacity to benefit under the will.
D. Jennifer may only inherit in terms of the will if she brings an application to this effect
before the High Court and the court finds in her favour.

1.6
The following person(s) will automatically be disqualified from inheriting:
ANSWER:

H A. A person who caused the death of the testator

B. A person of unsound mind
C. An indignus
D. An insolvent
E. The nasciturus
F. A + C
G. A + B + C + D + E
H. None of the above.

IURI 313 4/12

 1.7
Which of the following clauses will be regarded in terms of the common law as being contra
ANSWER: bonos mores?
E
A. “I leave my house to my wife. Should she remarry, she shall pay to each of my 4
children a sum equal to 1/5 th of the value of my estate as at the date of my death.”
B. “I leave my estate to my daughter, Fergie, on condition that she remains unmarried
after my death. Should she marry, half of the estate should go to the SPCA. ”
C. “I leave my estate to my daughter, Cassandra, on condition that she should divorce
that lazy husband of hers within one year of my death. If she does not divorce him,
my estate should go to the SPCA.”
D. A + B + C
E. B + C

1.8
William stipulated in his will that his wife, Kate, should inherit R250 000; his daughter,
ANSWER: Charlotte, should inherit R100 000; and the residue of the estate should go to his son, Philip.
C William did not provide in his will for his daughter, Macy. Macy was born out of William’s first
marriage to Susan. Susan and Macy were involved in a serious motor vehicle accident in
which Susan was killed. Macy suffered major head injuries. Even though Macy is an adult
and married, William supported Macy financially since her husband is not able to do so.
Choose the correct statement:

A. Macy will have no claim for maintenance against William’s estate since she is an
adult and married.
B. Macy will possibly have a claim for maintenance against William’s estate. Should
she be successful in her claim, the legatees, namely Kate and Charlotte, will,
however, receive preference above Macy’s claim for maintenance, followed by
Philip as residual heir.
C. Macy will possibly have a claim for maintenance against William’s estate. Should
she be successful in her claim, her claim for maintenance will receive preference
above the legatees (Kate and Charlotte), followed by Philip as the residual heir.
D. The provisions of the Maintenance of the Surviving Spouses Act 27 of 1990 will
determine whether Macy will have a maintenance claim or not.

1.9
Choose the correct statement/combination of statements regarding the meaning of the
ANSWER: maxim “Voluntas testatoris sevanda est”:
A
A. The will expressed by the testator must be adhered to.
B. The testator has complete testamentary capacity.
C. The legislator may not infringe upon the testator’s freedom of testation.
D. A + B
E. A + C
F. A + B + C

IURI 313 5/12

 1.10
In Ex parte Steenkamp and Steenkamp 1952 1 SA 744 (T) the following people were
ANSWER: identified as being conjuctissimae personae of the testator, namely the testator’s:
F
A. grandparents
B. parents
C. spouse
D. children
E. A + B + C + D
F. B + C + D
G. C + D

QUESTION 2 [10]

Combine the statement/legal principle/quote in column A with the corresponding judgment in column B. For
example 1B, 2A etcetera.

Column A Column B

Crossman v The Master of the

With reference to section 2(3) of the Wills Act 7 of
High Court, Johannesburg
1 1953: The court held that a completed and signed "Will
[2021] ZAGPJHC 443
Application" pro forma document (and the surrounding
G A
circumstances) indicated that the deceased did not
intend the document to be anything other than a
drafting instruction.
Pillay v Ganga NO (5444/2019P)
With reference to section 2(3) of the Wills Act 7 of
[2023] ZAKZPHC 23 (3 March
1953: The court held that a handwritten document
2023)
named "Notes on Will" was indicative of instructions
2
that the deceased wished to have included in his will:
J "… that the deceased anticipated that another
B
document will, in due course, be prepared and placed
before him for his consideration and approval. It does
not appear that the written document had been written
with the intention required by s 2(3), and consequently
cannot be brought within its terms."
Roos v Saaiman 2018 6 SA 279
The court held that a photograph of a note which was
(GP)
written by the deceased, forwarded to his brother-in-
3
law and accompanied with the following message, "…
E here are some thoughts regarding an updated will C

which has not been legalized yet…" did not comply

with the requirements of section 2(3) of the Wills Act 7
of 1953.

IURI 313 6/12

 Blom and Another v Brown and
With reference to section 2(3) of the Wills Act 7 of
Others [2011] 3 All SA 223 (SCA)
1953: The court held that: "… such factors as those
upon which the third to fifth respondents seek to rely
for the submission that the deceased had changed his
4 mind and intended … that the third respondent should
be the sole beneficiary of his estate are not relevant in
A D
determining what the deceased's intention was at the
time of writing the rejected will. Subsequent conduct,
such as what is relied upon by the respondents herein
is only relevant in so far as it throws light on what was
in the mind of the deceased at the time of writing the
rejected will."
Marshall v Baker NO [2020]
The court held that physical destruction of a revoked
5 ZAWCHC 13 (25 February 2020)
will is not necessary for purposes of section 2A of the
C Wills Act 7 of 1953, where the testatrix’s animus E

revocandi was clearly conveyed in her communication

to the bank.
Ex Parte Pretorius (Franklin
The court found that the applicant forged the
intervening) [2017] 2 All SA 558
6 document she wanted the court to declare as her (WCC)
husband’s will. The court also found on a balance of
I F
probability that she participated in the plot to kill the
deceased; thus, it would be unconscionable to allow
her to benefit from the deceased’s estate.
7 Estate Late Elaine Ilsia Williams
The court held that section 4A(2)(a) of the Wills Act 7
G v Hendricks [2021] ZAWCHC 66
D of 1953 is not subject to the inapplicability of section
(19 APRIL 2021)
4A(2)(b) of the Wills Act 7 of 1953.
Van Heerden v Picton and
With reference to section 2(3) of the Wills Act 7 of
Others [2021] JOL 51575 (KZP)
8 1953: The court held that the "Affidavit" document at
issue appeared to be an agreement between the
B H
deceased and her parents and not that of a person
expressing their intention that the document be their
will.
Smit v The Master, Western
With reference to the onus of proof required in section
9
Cape and Others [2022] 4 All SA
4A(2)(a) of the Wills Act 7 of 1953, the applicant could
F I 146 (WCC)
not show the absence of undue influence. He
accordingly remained disqualified to inherit.

Osman v Nana NO [2021]

10 The rationale for the inclusion of section 4A in the Wills
ZAGPJHC 47 (28 APRIL 2021)
Act 7 of 1953 (statutory disqualification) was
H J
formulated by the court as: “… the fact that someone
who stands to benefit from the death of a testator in

IURI 313 7/12

 terms of a will, and who is involved in the drawing of
the very will in which that benefit is declared,
ineluctably invites speculation that he or she may have
improperly influenced the testator in the framing of his
final testament, more particularly so where the will is
executed at a moment of crisis in the testator’s life.”

QUESTION 3 [8]

You (John Khumalo) validly executed a one-page will on 19 June 2021. Please find the said will on page 9
of this paper. The residential property situated at 1 Church Street, Lichtenburg, is bequeathed to your son
(Joe Khumalo) in clause 3.2 of the said will. You had a huge fight with Joe on 31 December 2022, and your
relationship has since deteriorated to such an extent that you now want to amend clause 3.2 in order to
bequeath the said property to your daughter, Jolene Khumalo.

What is expected from you: Amend clause 3.2 of the will (on the will itself (page 9 of this paper)) in full
compliance with the requirements prescribed in section 2(1)(b) of the Wills Act 7 of 1953. Take note that you
will be using an amanuensis to amend clause 3.2, seeing that you lost the use of your arms due to injuries
sustained in a motor vehicle accident on 15 May 2022. Fabricate names and other details and include
additional information where necessary.

Question 3 - Notes for markers:

1. Amendment made – “son, JOE KHUMALO” crossed out and insertion of “Jolene Khumalo”. (1)
2. Amanuensis to sign next to the amendment – advisable that the amanuensis should sign the name of the
testator. (1)
3. Signature/initials of witness 1 (need not be the same witness as with the original execution of the will) (1)
4. Signature/initials of witness 2 (need not be the same witness as with the original execution of the will) (1)
5. Commissioner of Oaths certificate – signed in his/her capacity of Commissioner of Oaths must be clear.
(1)
6. Commissioner of Oaths certificate – must indicate that the Commissioner has satisfied himself/herself as
to the identity of the testator. (1)
7. Commissioner of Oaths certificate – must indicate that the Commissioner has satisfied himself/herself
that the amendment was made at the request of the testator. (1)
8. Signed by the Commissioner of Oaths. (1)

IURI 313 8/12

 LAST WILL AND TESTAMENT

This is the last will and testament of

JOHN KHUMALO (581011 1234 083)

Presently domiciled at 1 Church Street, Lichtenburg

1. REVOCATION OF PREVIOUS WILLS

I hereby revoke all previous wills, codicils and other testamentary writings made by me.

2. APPOINTMENT OF EXECUTOR

I nominate CC SHEFFIELD of the firm SHEFFIELD & BABCOCK ATTORNEYS of Lichtenburg to be the
executor of my estate with the power of assumption. I exempt every executor, whether appointed under this
will or assumed or substituted, from the furnishing of security to the satisfaction of the Master for the due and
faithful performance of his/her duties as such.

3. LEGACIES AND BEQUESTS

3.1 I bequeath R100 000.00 (ONE HUNDRED THOUSAND RAND) to the SOUTH AFRICAN CANCER
ASSOCIATION. {1}
daughter, Jolene Khumalo

3.2 I bequeath the residential property situated at 1 Church Street, Lichtenburg to my son, JOE KHUMALO.

{2}
John Khumalo
3.3 I bequeath the residue of my estate to my wife, THANDI KHUMALO. {3}
Witness 1’ initials/signature
{4}
Witness 2’s initials/signature
SIGNED by me at LICHTENBURG on this 19th day of JUNE 2021 in the presence
of the undersigned witnesses who signed in my presence and in the presence of each other, all being present
at the same time.

JT John Khumalo
WITNESS 1 TESTATOR

SThompson
WITNESS 2

I, NAME OF THE COMMISSIONER OF OATHS, of 13 President Street, Lichtenburg, in my {5} capacity as commissioner
of oaths, certify that I have satisfied myself as to {6} the identity of the testator JOHN KHUMALO and that {7} the alteration
to this will was made at the request of the testator.

{8} Initials/signature of the Commissioner of Oats 10 January 2023

............................................................. Date
Commissioner of Oaths

IURI 313 9/12

QUESTION 4 [7]

The set of facts in question 3 refers. Instead of amending clause 3.2 of the 19 June 2021 will, you validly
executed a new will on 15 January 2023. The last-mentioned will included the following clause: "I hereby
revoke all previous wills, codicils and other testamentary writings made by me." Joe Khumalo is not mentioned
in the 15 January 2023 will. You and Joe had an honest conversation on 1 March 2023, and you decided to
set your differences aside. You now wish to revive the 19 June 2021 will. The 19 June 2021 will is still in your
possession – please see page 11 of this paper.

What is expected of you: Revive the 19 June 2021 will (on page 11 of this paper) in order for the said will
to have legal effect. For purposes of question 4, the revival of a will by means of incorporation in a subsequent
will is not an option.

Remember that you lost the use of your arms due to injuries sustained in a motor vehicle accident on 15 May
2022.

Question 4 – Notes for markers:

Revival of a will by re-execution:

1. Amanuensis to sign – advisable that the amanuensis should sign the name of the testator. (1)
2. Signature/initials of witness 1 (need not be the same witness as with the original execution of the will) (1)
3. Signature/initials of witness 2 (need not be the same witness as with the original execution of the will) (1)
4. Commissioner of Oaths certificate – signed in his/her capacity of Commissioner of Oaths must be clear.
(1)
5. Commissioner of Oaths certificate – must indicate that the Commissioner has satisfied himself/herself as
to the identity of the testator. (1)
6. Commissioner of Oaths certificate – must indicate that the Commissioner has satisfied himself/herself
that the accompanying will is the will of the testator (remember: this is a re-execution and not amendment
– hence the difference in the wording of the certificate. (½)
7. Signed by the Commissioner of Oaths. (½)
8. Date: The date is important for evidentiary proof – should be later than 15 January 2023 (i.e. the last
executed will). The testator and his son restored their relationship on 1 March 2023. (1)

IURI 313 10/12

 LAST WILL AND TESTAMENT

This is the last will and testament of

JOHN KHUMALO (581011 1234 083)

Presently domiciled at 1 Church Street, Lichtenburg

1. REVOCATION OF PREVIOUS WILLS

I hereby revoke all previous wills, codicils and other testamentary writings made by me.

2. APPOINTMENT OF EXECUTOR

I nominate CC SHEFFIELD of the firm SHEFFIELD & BABCOCK ATTORNEYS of Lichtenburg to be the
executor of my estate with the power of assumption. I exempt every executor, whether appointed under this
will or assumed or substituted, from the furnishing of security to the satisfaction of the Master for the due and
faithful performance of his/her duties as such.

3. LEGACIES AND BEQUESTS

3.1 I bequeath R100 000.00 (ONE HUNDRED THOUSAND RAND) to the SOUTH AFRICAN CANCER
ASSOCIATION.

3.2 I bequeath the residential property situated at 1 Church Street, Lichtenburg to my son, JOE KHUMALO.

3.3 I bequeath the residue of my estate to my wife, THANDI KHUMALO.

SIGNED by me at LICHTENBURG on this 19th day of JUNE 2021 in the presence of the undersigned
witnesses who signed in my presence and in the presence of each other, all being present at the same time.

JT {1}
John Khumalo John Khumalo
WITNESS 1 TESTATOR

SThompson {2}
Witness 1’s initials/signature

WITNESS 2
{3}
Witness 2’s initials/signature

I, NAME OF THE COMMISSIONER OF OATHS, of 13 President Street, Lichtenburg, in my {4} capacity as commissioner
of oaths, certify that I have satisfied myself as to {5} the identity of the testator JOHN KHUMALO and that {6} the
accompanying will is the will of the testator.

{7} Initials/signature of the Commissioner of Oats {8} 2

March 2023
............................................................. Date
Commissioner of Oaths

IURI 313 11/12

 QUESTION 5 [10]

Section 4A(1) of the Wills Act 7 of 1953 states the following: “Any person who attests and signs a will as a
witness or who signs a will in the presence and by 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, shall be disqualified from receiving any benefit from that will.”

With reference to the remedies available in specifically section 4A(2)(a)-(b) of the Wills Act 7 of 1953,
discuss the matter of Blom v Brown [2011] 3 All SA 223 (SCA) with the inclusion of:

a. Condensed facts: Testator dictated his will to his spouse. The spouse wrote the will in her own handwriting. /2
The will was signed by the testator and 2 witnesses. The spouse is to inherit the entire estate in terms of this
will. Testator passed away a few weeks after executing this will. Spouse successfully instituted a court
application in terms of section 4A(2)(a) of the Wills Act 7 of 1953. Testator’s daughters (from a previous
marriage) came to hear about the court order granted in favour of the spouse. They applied for a rescission of
the above-mentioned court order.

Legal question: Whether the application of section 4A(2)(a) of the Wills Act is dependent on the inapplicability
of section 4A(2)(b) of the Wills Act.

b. General discussion of the remedies available in respectively section 4A(2)(a) and section 4A(2)(b) of /2
the Wills Act:
• Section 4A(2)(a): A court may declare a person or his spouse referred to in subsection (1) to be
competent to receive a benefit from a will if the court is satisfied that that person or his spouse did
not defraud or unduly influence the testator in the execution of the will;
• Section 4A(2)(b): A person or his spouse who in terms of the law relating to intestate succession
would have been entitled to inherit from the testator if that testator has died intestate shall not be
thus disqualified to receive a benefit from that will: Provided that the value of the benefit which the
person concerned or his spouse receives, shall not exceed the value of the share to which that
person or his spouse would have been entitled in terms of the law relating to intestate succession.

c. The applicants’ claims as to the qualification and restrictive application of section 4A(2)(a) of the Wills /2
Act:
• Section 4A(2)(a) is only available should section 4A(2)(b) not be applicable. In other words, that
section 4A(2)(a) is not available to disqualified beneficiaries that would have inherited intestate from
the deceased, should he have died intestate.
• The surviving spouse’s benefit should be restricted to what she would have inherited intestate – in
this case section 1(1)(c) of the Intestate Succession Act 81 of 1987. The rest of the estate should
be divided amongst them – being the deceased descendants.

d. The Supreme Court of Appeal’s interpretation of the relationship between section 4A(2)(a) and section /3
4A(2)(b) of the Wills Act 7 of 1953 (student’s own words):
• Remedies in section 4A(2)(b)-(c): finds automatic application (no court order needed)
• Par 19: “There is, to my mind, nothing in s 4A to suggest that the applicability of subsection 2(a) is
dependent on the inapplicability of subsection 2(b). If it was the intention of the legislature that a
person contemplated in subsection 2(b) was to be excluded from the ambit of subsection 2(a) then
one would have expected the section to contain words such as ‘other than a person referred to in
paragraph (b) of sub-section 1’ to appear in subsection 2(a).”
• Par 21: “In addition to the considerations that I have just alluded to, counsel’s argument, in my view,
finds no support in the plain language of the section. Subsection 1 refers to ‘any person’ who inter
alia ‘writes out the will’ of the testator. And subsection 2(a) refers in terms to ‘a person or his spouse

IURI 313 12/12

 referred to in subsection 1’. It is that person, namely the person who writes out the will that a court
may declare to be competent to receive a benefit under that will…

e. The Supreme Court of Appeal’s conclusion as to the legal question. /1

• The application of section 4A(2)(a) of the Wills Act is not dependent on the inapplicability of section
4A(2)(b) of the Wills Act.
• The spouse was not confined to the relief provided for in section 4A(2)(b).
• Previous court order upheld – spouse to inherit in terms of the will.
/ 10

QUESTION 6 [5]

Explain why section 6 of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 will
restrict a testator’s freedom of testation with reference to the following testamentary clause:

“I bequeath the immovable property situated at 10 Ocean View Drive, Umhlanga, Kwa-Zulu Natal, to my son
Marc Jacobs. Upon Marc’s death, the property should devolve upon his son, Nathan Jacobs. Upon Nathan’s
death, the property should devolve upon his daughter, Rosie Jacobs. Upon Rosie’s death, the property should
devolve upon Suzy Sotheby.”

• The clause creates a fideicommissum (1):

o Marc = fiduciarius
o Nathan = first fideicommissarius
o Rosie = second fideicommissarius
o Suzy = third fideicommissarius
• Immovable property -> section 6 -> limits the number of fideicommissarii to two. (1)
• Therefore, even if the testator included Suzy Sotheby in the fideicommissum, the application of section
6 will exclude Suzy (as third fideicommissarius) to inherit the immovable property. (2)
• Rosie will be the last fideicommissarius and will be able to bequeath the property to whom she wishes.
(1)

TOTAL: 50

IURI 313 13/12