Study Unit 9: The Contents of Wills

Question 1

What are the modalities in the contents of wills?

Answer 1

The condition, the dies, the modus

Question 2

The Condition in a will

Answer 2

Conditional bequest is one that’s subject to the occurrence of an uncertain future event.
- Condition fulfilled only if event occurs in the future – if doesn’t happen, condition not fulfilled.
- Words used: “if”, ‘provided’, ‘on condition’
- Subdivided into different types – suspensive or resolutive (terminative)

Question 3

Suspensive conditions

Answer 3

Both vesting (cedit) and enforceability (Venit) are postponed/suspended until condition fulfilled

Question 4

what is dies cedit

Answer 4

vested Right to claim delivery

Question 5

what is dies venit

Answer 5

vested right to enforce

Question 6

Resolutive conditions

Answer 6

Neither dies cedit not dies venit postponed or suspended, both occur upon testator’s death.

• BUT, right acquires as vesting will end the fulfilment of the condition and beneficiary must forfeit the asset.

E.g., “I leave farm to D, but if she moves overseas, E gets it.
– D obtains right to the farm, C, upon T’s death, and can enforce right by claiming transfer of farm in her name… etc.

Important to provide for alt beneficiary to receive property upon fulfilment/non-fulfilment of the relevant condition.
- In absence of alternate, restriction imposed upon conditional bequest is ineffective, and disregarded so that beneficiary takes thing unconditionally.
- Ineffective restriction: nudum praeceptum

Question 7

Problematic Conditions

Answer 7

Testamentary conditions may be impossible/unlawful to perform, run contrary to public policy, or be too vague to carry out
- Should it be any of these: condition is pro non scripto
- i.e., disregarded as if it were never in the will
- beneficiary will take bequest unconditionally

e.g., I leave farm to X, provided he divorces his wife.
- Conditions like this are vs pubpol bc aimed at destroying the sanctity of marriage.
- X will get the farm unconditionally as a result.

Question 8

Aronson v Estate Hart 1950

Answer 8

partial restraint of marriage doesn’t offend public policy

Question 9

Vague/Uncertain conditions

Answer 9

e.g., “leave my yacht to X if he changes his political views”
- Such a broad concept that it’s too difficult to provide sufficient content for condition to be enforced.
- So, X will take it unconditionally

Question 10

The Dies

Answer 10

The term/time clause:

• Bequest subject to a dies is one subject to the occurrence of a certain future event

Certainty in this context:
- It’s certain that and when the event will happen
- It’s certain that, but not when the event will happen

Different terms:
suspensive and resolutive/terminative (Most NB)

Question 11

Suspensive dies

Answer 11

Vesting (DC) takes place on T’s death, but enforceability (DV) is postponed until future event happens

Principal difference btw suspensive condition and suspensive dies:
- should the conditional beneficiary die prior to fulfilment of the condition, no right to the benefit concerned will have vested in his/her estate and no right to such a benefit can devolve onto his/her successors

• if a beneficiary under a dies should die prior to the happening of the certain future event, vesting will already have occurred at the testator’s death and a right to the benefit concerned will form part of the beneficiary’s estate and can devolve onto his/her successors

Question 12

Resolutive dies

Answer 12

neither DC nor DV is postponed/suspended – both occur on T’s death
- right acquired at vesting will terminate upon happening of the certain future event

The difference between a resolutive condition and a resolutive dies:
- in terms of the condition, the right concerned may terminate or it may not, depending on whether the condition is fulfilled or not
- in terms of the dies the right will definitely terminate when the certain future event occurs

Question 13

The Modus

Answer 13

A bequest subject to a modus is subject to burden/obligation
- beneficiary under a modus can’t take benefit without also accepting accompanying obligation
- if can’t accept obligation, must reject the benefit.

E.g., give X my farm, but X must pay Y R5 million in 2 years.
- X has to pay Y or can’t receive the farm.
- Modus is different to suspensive condition:
- Vesting (DC) not postponed under modus, but occurs immediately upon T’s death
- Under suspensive condition, vesting (DC) postponed until fulfilment of condition

Question 14

Substitution

Answer 14

Occurs if either Testator/Rule of Law of succession nominate someone to inherit in the place of the instituted B

Direct OR Fideicommissary substitution

Question 15

Direct Substitution

Answer 15

When alternative B takes a benefit that instituted B can’t/won’t take

Most frequently occurs when instituted B is predeceased/disqualified/rejects

Alt B = direct substitute

E.g., I leave farm to A, if A can’t/won’t take farm, it must go to B.

Question 16

Creation of Direct Substitution

Answer 16

Usually provided for expressly in will

Can also arise by operation ex lege in terms of s2C(2) of WA

Descendant of T can be represented per stirpes by their descendants
- if the first-mentioned descendant, whether as a member of a class or otherwise, would have been entitled to receive a benefit from the testator’s will if they hadn’t predeceased the testator, or hadn’t been disqualified from inheriting, or hadn’t, after the testator’s death, renounced the right to receive a benefit

two qualifications:
- operation of s2C(1)
- context of the will may point to contrary intention on T’s part

Question 17

s2C(1) of the Wills Act

Answer 17

Where any descendant of the testator excluding a minor or mentally ill descendant is, together with the surviving spouse of the testator, entitled to a benefit in terms of a will and such a descendant renounce (rejects) the right to receive the benefit that benefit shall vest in the testator’s surviving spouse

Question 18

Fideicommissary substitution

Answer 18

Creates the legal institution of the fideicommissum
- occurs when successive beneficiaries take benefit in terms of T’s will

Initial beneficiary = fiduciary
Successive beneficiary/s are fideicommissary/s

E.g., I leave farm to B, upon B’s death after mine, farm must go to C

A = testator –> B = fiduciary (1st B) –> C = Fideicommissary (successive B)

Question 19

The creation of a Fideicommissum

Answer 19

• Intention on T’s part to create fideicommissum
• A gift-over (provision for passing of property) from fiduciary in favour of fideicommissary
• ID of: fideicommissary assets, the fiduciary, the fideicommissary
• Valid fideicommissary condition
• Can be created EXPRESSLY (like e.g.) or TACITLY

To create tacitly:
- by using a si sine liberis decesserit clause
(refers to the death of a B without leaving children)

Question 20

Du Plessis v Strauss 1998

Answer 20

A si sine liberis decesserit clause, w/ a conditional fideicommissum, gives rise to presumption that Testator implicitly instituted the child as fideicommissary
- child MUST be descendant of T for this to happen
– i.e., in the case of a T’s descendant, a SSLD clause is in itself an indication that T intended the descendant as fideicommissary
- presumption fall away if T clearly wanted a contrary intention
- non-descendants implicitly instituted as fideicommissaries under a SSLD clause only if will contains strong indications in favour of Testator’s intention to have non-descendants as fideicommissaries.

Question 21

Creating a Fideicommissum by using prohibition against alienation

Answer 21

E.g., ‘I leave my farm to my son, G – he may not alienate the farm to anyone other than H’

• Prohibition vs alienation creates tacit fideicommissum in H’s favour
• i.e., if G never alienates the farm to H during their lifetime. H will inherit the farm as fideicommissary on G’s death.

Question 22

The legal position of the fiduciary

Answer 22

Fiduciary acquires ownership of the fideicommissary property upon transfer of such property to them

• Ownership of the Fiduciary property is restricted by various limitations
• Principal limitation that rests on Fiduciary’s ownership is that F has no general power to alienate the Fideicommissary property
• Court may grant a fiduciary permission to alienate the fideicommissary property
• Courts power here is derived from the Common Law, and (if property is immoveable) from Immoveable Property (Removal or Modification of Restrictions) Act 94 of 1965
• Fiduciary must maintain essential quality of the property so that the property can pass to the fideicommissary salva rei substantia (with its essence preserved)

Question 23

The Legal position of the Fideicommissary

Answer 23

Fideicommissary property is vested in the fiduciary, fideicommissary enjoys a personal right vs the fiduciary
- Personal right isn’t vested, and is extinguished if fideicommissary predeceases fiduciary
- Fideicommissary’s successors won’t obtain any right to the fideicommissary property if fideicommissary predeceases them.
- If fideicommissary does predecease fiduciary, fiduciary becomes (in absence of alternative provisions in the will) the full and final owner of the fideicommissary property.
- Prior to fulfilment of fideicommissary condition (and while fideicommissary property still vested in fiduciary), fideicommissary enjoys certain remedies vs errant fiduciary

– E.g., fideicommissary can obtain prohibitory interdict to prevent unlawful alienation of the fideicommissary property by fiduciary.
- If fiduciary alienates property to 3rd party mala fide (i.e., knew), 3rd party can be compelled to make a restitution in terms of the Doctrine of Notice.
- On fulfilment of fideicommissary condition, fideicommissary can claim transfer of fideicommissary assets to themselves.

Possible for Testator to grant power of alienation of fideicommissary property to fiduciary in the will

• In such a case: fideicommissum is referred to as a fideicommissum residui, which indicates that fiduciary can alienate fideicommissary property and the fideicommissary will receive only that part of the fideicommissary property that remains at the fulfilment of the fideicommissary condition.
• Extent of fiduciary’s power of alienation is usually stipulated in the will.
• If will contains no express indication, rule from RL invoked – fiduciary’s power of Alienation is restricted to 75% of the fideicommissary property.
• At least 25% of property must be transferred to fideicommissary

Question 24

Barnhoorn v Duvenage 1964

Answer 24

fideicommissary enjoys a personal right against the fiduciary

Question 25

Limitation on the duration of a fideicommissum

Answer 25

Immoveable Property (Removal or Modification of Restrictions) Act 94 of 1965
- Restricts duration of fideicommissa over immoveable property to two successive fideicommissaries

E.g., I leave farm to A, upon his death to B, upon his death to C, upon his death to D. in terms of the act, the fideicommissum over the farm (Immoveable property) is limited to the second successive fidei, (i.e., C) (A is fidu, B is 1st fidei)
When C obtains farm, fideicommissum is terminated, farm will vest finally in C. D won’t acquire farm under fideicommissum on C’s death.

Question 26

The Usufruct

Answer 26

Only involved in succession bc often created in wills – i.e., testamentary usufruct.
- Usufructuary entitled to the use and enjoyment of another’s property, and can take fruits of property subject to obligation to return the property upon termination of usufruct salva rei substantia
- Owner of property subject to usufruct can’t enjoy property for duration of usu and they are referred to as nude/bare owner, or dominus
- Bare owner’s full ownership restored on termination

Question 27

How is a Usufruct distinguishable from a fideicommissum?

Answer 27

Fiduciary will acquire full and final ownership in the fideicommissary property upon failure of the fideicommissary
- E.g., if fideicommissary predeceases fiduciary

Usufructuary enjoys no right to usufructuary property as such (only use and enjoyment) and can’t ever acquire ownership of usufructuary property upon failure of bare owner
- E.g., if bare owner predeceases usufructuary prior to end of usufruct

In cases of doubt: presumption operates that T intended to create a fideicommissum, not a usufruct.

Question 28

Determining testamentary institution intended by the Testator

Answer 28

• Sometimes needs to be established through interpretation of the will
• Terminology isn’t necessarily decisive

Question 29

Raubenheimer v Raubenheimer 2012

Answer 29

Court condoned a document signed by D, but not properly witnessed, as T’s will in terms of s2(3) of the Wills Act

• D left estate to appellant (2nd wife) but also granted her ‘usufruct’ over matrimonial home until her death/remarriage w/out Identifying nude owner of home.
• Court opined that bequest of entire estate to B is a bequest of the ownership of the property to that beneficiary, which is irreconcilable with appellant acquiring no more than a usufruct over matrimonial home
• D didn’t have to grant usufruct to her over the home she now owned, in its true legal sense.
• Court concluded given D’s clear directive that appellant must enjoy property only until her death/remarriage, it’s evident that D didn’t intend full and unrestricted dominum in matrimonial home to pass to appellant: implication is clearly that upon death/remarriage, the property should pass to another.

SO, court held that D created a fideicommissum over the matrimonial home w/put expressly IDing person upon whom it should devolve on the appellant’s rights as fiduciary coming to an end.
- T’s intention was that respondents (kids by first wife) must obtain property upon the happening of either event.