Pacta Successoria + donatis mortis causa

Question 1

what is pactum successorium

Answer 1

A contract in which the parties attempt to regulate the devolution of the entire or part of the assets of one or both parties.
(generally invalid)

Question 2

what is the origin of the prohibition of pactum success.

Answer 2

• common law

- not permitted in roman law

Question 3

what is the only real objection to pactum succ.

Answer 3

In order to give effect to freedom of testation, a will is to be revocable until death. Pactum successorium may restrict freedom of testation and therefore considered contra bones mores.

Question 4

what are the two forms of pactum that are considered invalid

Answer 4

1. Parties attempt to arrange the inheritance of the assets in the contract itself [We, A and B agree whoever outlives the other will be the sole heir]
2. Parties agree that one of them will include certain provisions in their will [We, A and B agree the A will appoint B as his only heir}

Question 5

what are the two forms of pactum that are valid

Answer 5

1. Donatio mortis causa

2. Testamentary provisions on an antenuptial agreement

Question 6

what are the 5 tests to determine pactum successorium

Answer 6

1. Absence of counter performance.
2. Revocability test.
3. Restriction of freedom of testation.
4. Vesting test.
5. Intention test.

Question 7

explain the absence of counter performance test

Answer 7

Schauer v Schauer found that an agreement is an invalid PS unless proof can be provided that a counter performance has been given to the promisor
• generally accepted that giving counter performance is NOT the criterion to establish whether or not an agreement is a PS

Question 8

explain the revocability test

Answer 8

• If the contract = revocable, you can revoke and change your mind about the disposition at any time. Your FOT is not limited and the contract is not considered a PS
• If it is an irrevocable agreement then it restricts FOT and is regarded as a PS
• However, revocability is not determinative, just one factor to consider

Question 9

explain restriction of freedom of testation test

Answer 9

• General rule: any agreement that restricts freedom of testation is null and void
• Courts have held that a contract in terms of which a testator is not allowed to dispose of their property in a will is also a restriction on such a person’s freedom of testation and is thus invalid

Question 10

explain vesting test

Answer 10

• If the right vests in the beneficiary immediately or before the giver’s death, even if use and enjoyment is postponed until after the death, the disposal is inter vivos [during the life of the deceased] and the contract is not an invalid PS.
• BUT, if the rights vest at the time of or after the death of the giver then the disposal is mortis causa and the contract is an invalid pactum

Question 11

what is the Mcalpine (majority) vesting test

Answer 11

1. whether promise makes the right thereto to vest in the promiseeonly upon or after the death of the promissor (which points to apactum successorium)
2. whether vesting takes place prior to the death of the promissor, for instance, at the date of the transaction giving rise to the promise (in which case it cannot be apactum successorium).”

Question 12

explain the intentions of the party ( Mcalpine minority)

Answer 12

• intention not right vesting = dominant feature
• Intention is a factual question and different considerations can be taken into account, including the revocability of the agreement and the vesting of rights

Question 13

what did the majority in mcalpine hold

Answer 13

Court held right to shares conditional upon survivorship and vesting postponed until death of 1st dying. Therefore, invalid pactum successorium.

Question 14

can pension schemes / partnership agreements/ life insurance policies pactum successorium?

Answer 14

Cannot be considered pactum successorium.

Concluded without animus testandi and can therefore not be regarded as invalid pactum successorium.

Question 15

explain donatio mortis causa

Answer 15

A donation aimed at the death of the donor and must comply with the formalities laid down in the will.
Although the DMC deals with the transfer of property from one person to another, it is a contract.
There is an offer from the donor which is accepted by the other.

Question 16

what are the 4 characteristics of DMC

Answer 16

1. Death of donor must be contemplated.
2. The governing motive for the gift must be pure benevolence.
3. The gift may be revoked at anytime.
4. must comply with formalities of a will
   s2(3), if it doesn’t comply with formalities, can ask court to condone non-compliance.

Question 17

explain antenuptial contract

Answer 17

A writtencontractbetween two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved.
A pactum successorium in an antenuptial contract does not make it a will. Although it has succession implications, it does not have to comply with testamentary formalities.

Question 18

what are the two forms of antenuptial contract pactum successorium

Answer 18

1. The spouses benefit each other mutually or the one benefits the other
2. The spouses agree to benefit a third party

Question 19

explain: The spouses benefit each other mutually or the one benefits the other:

Answer 19

In this case, the agreement can only expressly or by means of inevitable implication be revoked or amended by the spouses’ joint will.
If the joint will is revoked, the pactum successorium revives.
Unilateral revoking by one spouse by making a new will is impermissible.

Question 20

explain the spouses agree to benefit a third party:

Answer 20

two possibilities of revocation:

1. is the third party - party to the agreement?
2. has the third party accepted the benefit?