Study Unit 10: Accrual

Question 1

What is Accrual (Ius Accrescendi)

Answer 1

The right enjoyed by testamentary beneficiaries to proportionally share in a benefit that another beneficiary under the same will can’t/won’t take

Question 2

When does Accrual operate?

Answer 2

When a co-heir/co-legatee
- has predeceased/
- is disqualified from inheritance
- repudiated the benefit
- was a Beneficiary to a benefit subject to a suspensive condition not fulfilled

Question 3

What does accrual operate in terms of?

Answer 3

common law and statute

Question 4

When is the testator’s intention about accrual readily determinable?

Answer 4

If T made express provision for accrual/expressly excluded the operation of accrual in the will.

Question 5

When will accrual not operate?

Answer 5

Where direct substitution operates (in terms of Testator’s stipulation in will, or statutorily in terms of s2C(2) of WA), in the event of a B’s predecease/disQ/repudiation/non-fulfilment

Question 6

When must intention of the testator be deduced, and how?

Answer 6

Where a Testator’s intention regarding operation of accrual isn’t clear from the will

Principal amongst indications relied on is method of joinder of co-beneficiaries in the will

Question 7

What are the three methods of joinder?

Answer 7

• Joinder re tantum
• joinder re et vernis
• joiner verbis tantum

Question 8

Joinder re tantum

Answer 8

through the thing/asset alone

Present when the same benefit was left to different beneficiaries in different clauses/provisions of the will.

• will be split if both capable to inherit, if one isn’t, total is accrued to the other.

the inference is IN FAVOUR OF ACCRUAL

Question 9

Joinder re et vernis

Answer 9

Through the thing and words

Present when same benefit left to different beneficiaries in the same clause/provision of the will without an express allocation of shares to each beneficiary

• split equally, and one accrues to the other if anything happens.

the inference is IN FAVOUR OF ACCRUAL

Question 10

Joinder verbis tantum

Answer 10

Through words alone

When same benefit left to different beneficiaries in the same clause/provision of the will with an express allocation of shares to each beneficiary

• each gets their allocated star, if something happens, it doesn’t accrue, because specified allocations implies averse to accrual.

inference NOT IN FAVOUR OF ACCRUAL

Question 11

Winstanly v Barrow 1937

Answer 11

Appellate Division decided that this inference operates unless the will or surrounding circumstances point to a different intention on the testator’s part. (re joinder verbis tantum)

Subsequently, South African courts found consistently that joinder verbis tantum occasions an inference against the operation of accrual, and these courts paid no regard to the qualification stated in Winstanley’s case, namely that this inference operates unless the will or surrounding circumstances point to a different intention on the testator’s part.

Question 12

Lello v Dales 1971

Answer 12

AD ‘refocused’ attention on the qualification regarding accrual in instances of joinder verbis tantum stated in Winstanley v Barrow when it found that:
- Joinder verbis tantum doesn’t automatically and necessarily result in an inference vs operation of accrual

• In each instance of joinder VT, the probable intention of T must be determined from the scheme and terms of the will, and with due regard to the relevant circumstances existing at the time when the will was made
• In Lello, the court held that, despite having used a joinder VT, with regard to a substitution provision in respect of trust capital, the T nevertheless intended for accrual to operate in favour of one section of the substitute beneficiaries.

Question 13

s2C(1) of the Wills Act

Answer 13

effects statutory accrual of a renounced share in favour of the T’s surviving spouse.