aug succ- deleg testamentary power

Question 1

What is testate succession?

Answer 1

Succession by means of a will

Question 2

Principle of freedom of testation

Answer 2

• Foundational principle of SA testate succession
• Means that testator has the freedom to dispose of property as testator wishes
• This is the general starting off point and as far as possible we try to give effect to the wishes of the testator

Question 3

how is freedom of testation protected?

Answer 3

• General rules governing testamentary succession
o Can’t agree contractually to limit your freedom of testation
o Will remains revocable until death
o Rules on the interpretation & rectification of wills
o Prohibition against undue influence
o Rule that you cannot delegate your testamentary power
• Also argued that the right to dispose of your property on death is integral to your right to property so indirectly protected by S25 of the Constitution

Question 4

2.1. GENERAL RULE testate succession

Answer 4

Testator must make his own will; he cannot delegate his will making powers to another.

Question 5

what are the two exceptions

Answer 5

1. bequest for charitable purposes

2. valid power of appointment

Question 6

2.2.1. Bequest for CHARITABLE PURPOSES

Answer 6

• Testator can allow a third party to identify beneficiaries when it’s for charitable purposes.
• So a testator creates a trust in his will or charity & the trustee has to identify the beneficiaries of the charity.
• It breaches the general rule that the testator must exercise his testamentary power himself as somebody else is selecting the beneficiaries. But it’s acceptable because it falls under the exception of a bequest for charitable purposes.

Question 7

What is a power of appointment?

Answer 7

Testator confers upon a person (GRANTEE) the power to dispose of the property of the Testator.

Question 8

types of PoA

Answer 8

1. general

2. special

Question 9

what is general PoA

Answer 9

Testator grants an individual an unlimited freedom of choice to select the persons upon whom the property is to devolve.
Have an unfettered discretion in deciding who to give the property to. Not limited to choosing from a class of persons like children / grandchildren.
Can only be conferred on someone who has beneficial interest in the property. 
Beneficial interest = usufruct/fiduciary

Question 10

what is special PoA

Answer 10

Testator grants an individual a limited freedom to choose the persons upon whom the property is to devolve. 
Your choice of whom the property is to devolve is limited to specified persons or specified class of persons.
Can be conferred on all persons

Question 11

when can you exercise PoA

Answer 11

o First moment when the power can be exercised is when the grantor dies: Estate Orphen v Estate Atkinson 1966 (4) SA 589 (A)

Question 12

Requirements for valid exercise of power of appointment?

Answer 12

o Grantee must intend to exercise the power of appointment.

o power of appointment must be carried out in accordance with the will conferring the power.

Question 13

What happens if power of appointment is not in accordance with the will? i.e exceeds

Answer 13

o If EXCEEDS power conferred in will, good is kept, excess is discarded
o They are supposed to select beneficiaries from your children. They choose some beneficiaries from your children and some from outside this class.
o Then we give effect to the beneficiaries chosen from your children and we ignore those outside.

Question 14

what happens if the PoA falls short of the will

Answer 14

o They supposed to dispose of your house but they sub divide the property & only dispose of part of the house.
o Then we set aside the whole act as if they never acted at all.