Study Unit 8: Capacity to Inherit

Question 1

What must a beneficiary have in order to benefit from the will of a testator?

Answer 1

Capacity to Inherit - ‘Testamenti factio passiva’

Question 2

“Die bloedige hand neemt geen erfenis”

Answer 2

• person who murdered dead cannot inherit from them
• person who negligently caused death of testator, can’t inherit, especially if they acted in a morally blameworthy manner

Question 3

When else can’t you inherit from a testator?

Answer 3

• If murdered the Testator’s conjuntissimae personae

- If you stand to receive inheritance by reason of a crime committed/unlawful conduct perpetrated against the deceased

Question 4

Ex Parte Steenkamp and Steenkamp 1952

Answer 4

A person’s conjunctissimae personae are usually spouse, parents, children - not grandparents/children

Question 5

Casey v The Master 1992

Answer 5

Husband convicted of culpable homicide of his wife got half of the estate from matrimonial property law, but couldn’t inherit from his wife’s will.

Question 6

Pillay v Nagan 2001

Answer 6

Son who forger mother’s will so he would be sole heir unworthy to be an intestate heir.

Question 7

S2D(1)(a) of Wills Act 7 of 1953

Answer 7

Adopted child is child of adopted parents, not biological parents, and vice versa
- natural parents who are also adoptive parents/married to adoptive parents are the exception

Question 8

s2D(1)(b) of Wills Act

Answer 8

Fact that child born out of wedlock ignored in determining relationship to testator/another for purposes of a will.

Question 9

s2D(1)(c) of Wills Act

Answer 9

If class bequest: goes to all alive members at time of devolution, and all conceived members who are later born alive
- NASCITURUS FICTION

Question 10

s4A of Wills Act:

Answer 10

Disqualifies testamentary benefit of certain persons involved in making/execution of a will.

Question 11

Who are the people disqualified by s4A(1) of Wills Act?

Answer 11

• anyone who attested/signed will as witness
• anyone who acted as amanuensis
• anyone who wrote out part/all of will in their own handwriting
• person who is spouse of any of these people

Question 12

What are the exceptions to s4A(1), that are found in s4A(2)?

Answer 12

• court can declare anyone able to benefit from will if they can prove they didn’t defraud/unduly influence Testator in execution. (* need to apply to HC for this)
• if you are also an intestate heir (value can’t exceed intestate value)
• any witness/spouse of witness can inherit if signed by two other competent witness who don’t benefit from will (*don’t need court order, Master is enough)

Question 13

s4A(3)

Answer 13

Nomination of someone in will as executor/trustee/guardian shall, for purposes of s4(a)(1), (2)(a), and (c) be regarded as a benefit to be received by such a person from that will

Question 14

What is the Effect of s4A(3)?

Answer 14

Disqualified person won’t be able to take up nominations as executor, trustee, or guardian.
** this is not to render will invalid, but to simply exclude the people mentioned from benefitting.

Question 15

Blom v Brown 2011 (SCA)

Answer 15

Wife handwrite deceased’s properly executed will, and she was sole heir.
Was informed after death that she was disqualified from inheriting under s4A because it was handwritten.
Successfully applied to HC that she could inherit bc didn’t influence etc. - s4A(2)(a)
Daughters appealed to SCA against HC’s ruling, arguing that s4A(2)(a) applies only to people not family, and that family can only invoked s4A(2)(b) - intestate succession exception
SCA held that nothing in s4A says this, any beneficiary can appeal to the court.
Appeal Dismissed.