usufruct/ estate massing/ accrual

Question 1

what is a usufruct

Answer 1

It is a personal servitude and it gives the usufructuary a limited real right to use another’s property and to take the fruits along with an obligation to return the property to the owner.

Question 2

when does a usufruct occur

Answer 2

Occurs when ownership is bequeathed to one person, but the right to use, enjoy and take the fruits of the property is bequeathed to another.

Question 3

under a usufruct a usufructuary is …

Answer 3

entitled to the use and enjoyment of another’s property; and
can take the fruits of that property
subject to the obligation to return the property upon the termination of the usufruct to the owner salva rei substantia

Question 4

the owner of a property subject to a usufruct is …

Answer 4

cannot enjoy the property for the duration of the usufruct; and = they are frequently referred to as the ‘nude’ or ‘bare’ owner or, alternatively, the dominusThe nude owner’s full ownership is restored upon termination of the usufruct

Question 5

what is the dominus

Answer 5

The dominus owns the property although the ownership does not include the right of enjoyment (it is nudum dominium).

Question 6

what are the powers of the dominus

Answer 6

Limited. They are not entitled to use and enjoy the fruits of the property before a future date.
Right to use and enjoyment is postponed until a certain future event or an uncertain future event occurs.

Question 7

when does dies cedit and dies venit take place for the dominus

Answer 7

dies cedit takes place on the death of the testator, but dies venit is postponed until the death of the usufructuary.

Question 8

when do dies cedit and dies venit take place for the usufructuary

Answer 8

dies cedit and dies venit occur on the death of the testator. The usufructuary obtains a vested right in the property (although it belongs to the dominus) to use and enjoy its fruits.

Question 9

what happens if the dominus dies before the usufructuary

Answer 9

The ownership of the property, subject to the usufruct, will pass to the beneficiaries of the dominus.

Question 10

Although dies cedit and dies venit occur for the usufructuary on the death of the testator, the vested rights are different from the rights of the dominus…

Answer 10

In this case, the vested rights are the right to use and enjoy the property subject to a term (resolutive term or time clause) or condition (resolutive condition). In other words, the rights of the usufructuary in the property resolve when the time has come or the condition has been fulfilled.

Question 11

how is a usufruct different from a fidei commissum

Answer 11

Two concepts dominus differ in important respects.
In the case of a fideicommissum = the fiduciary obtains a real right in the fiduciary property, which passes to a fideicommissary when the time comes (resolutive term) or on the occurrence of an uncertain future event (resolutive condition).
In the case of a usufruct= the usufructuary never obtains ownership but only a limited real right (ius in re aliena) which ultimately falls away while the dominus obtains full ownership.

Question 12

what is the presumption for fidei commissum/ usufructs

Answer 12

NB: In cases of doubt, a presumption operates that the testator intended to create a fideicommissum and not a usufruct.

Question 13

what is a joint will

Answer 13

• chose to combine their dispositions in one document – the joint will
• Both spouses retain full freedom of testation prior to death and each can amend/revoke their portion of the joint will during their lifetimes, even without informing the other testator.

Question 14

what is a mutual will

Answer 14

• H and W make a will in which they declare that ‘the survivor of us will be the sole heir of the first-dying to us’
• If H dies first, W will be H’s sole heir and vise versa
• H and W each retain full freedom of testation prior to death

Question 15

what does the massing of an estate refer to

Answer 15

the consolidation of estates or parts of estates
by different testators
into a single economic unit
for purposes of joint disposition

Question 16

what is the first stage of massing

Answer 16

execution of a mutual will

Question 17

when does massing take effect

Answer 17

Massing only takes effect when, upon the death of the first-dying spouse, the surviving spouse elects to accept the benefit of the usufruct over the consolidated share portfolios

Question 18

what is the affect of s 37 of admin act in case of adiation

Answer 18

1. they are bound to the provisions of the mutual will and may not amend or revoke those provisions in the future
2. dispose of assets acquired after the mutual will came into operation, in other words assets that do not form part of the massed estate
3. The ultimate beneficiary is entitled to claim from the deceased’s executor any rights in respect of the bequeathed assets of the first-dying testator as well as the surviving testator as they are entitled to in terms of the mutual will

Question 19

what is the affect of s 37 of admin act in case of repudiation

Answer 19

the survivor may not receive any other benefit(s) in terms of that will
The surviving testator then retains their own assets and may dispose thereof as they wish
The mutual will becomes the will of the first-dying testator only and regulates only the devolution of the first-dying testator’s assets

Question 20

what is the doctrine of election

Answer 20

the choice between adiation and repudiation
in instances of an encumbered benefit,
typically where the testator imposed some obligation or other burden along with a benefit

Question 21

what is a good example of doctrine of election

Answer 21

a modus

Question 22

what happens in the case of an encumbered request

Answer 22

the rule applies that the beneficiary must take the good with the bad
In other words, the beneficiary cannot accept the benefit without also taking on the obligation or burden
If the beneficiary cannot, for whatever reason, take on the obligation or burden, the beneficiary must repudiate the benefit

Question 23

is the choice for an unencumbered bequest absolute

Answer 23

if a beneficiary repudiates one benefit (for example, because an obligation is attached to it), the beneficiary must repudiate all other benefits bequeathed to him/her in that same will

Question 24

when is election particularly important

Answer 24

Election is particularly important in the context of the massing of estates

Question 25

what is acccrual

Answer 25

the right enjoyed by testamentary beneficiaries.
to share proportionally in a benefit.
that another beneficiary under the same will cannot or will not take.

Question 26

when does accrual operate

Answer 26

a co-heir or co-legatee has predeceased,
is disqualified from inheritance,
repudiated the benefit,
or was a beneficiary to a benefit subject to a suspensive condition that was not fulfilled.

Question 27

what determines whether accrual operates or not

Answer 27

the testator’s intention:
If a testator made express provision for accrual, or expressly excluded the operation of accrual in their will, the testator’s intention regarding the operation of accrual is readily determinable

Question 28

what happens with direct substitution in accrual

Answer 28

Where direct substitution operates (either in terms of the testator’s stipulation in the will or statutorily in terms of s 2C(2) of the Wills Act) in the event of a beneficiary’s predecease, disqualification, repudiation or the non-fulfilment of a suspensive condition,

=accrual shall NOT operate

Question 29

what happens when testator intention not clear for accrual

Answer 29

If not clear, can look at certain indications to ascertain the testator’s intention.
Principal amongst these indications to be relied upon is the method of joinder of co-beneficiaries in the will

Question 30

Joinder re tantum (joinder through the thing (asset) alone)

Answer 30

present when the same benefit was left to different beneficiaries in different clauses/provisions of the willTherefore, in instances of joinder re tantum, the inference is in favour of accrual

Question 31

Joinder re et verbis (joinder through the thing and words)

Answer 31

Present when the same benefit was left to different beneficiaries in the same clause/provision of the will without an express allocation of shares to each beneficiary
Therefore, in instances of joinder re et verbis, the inference is in favour of accrual

Question 32

Joinder verbis tantum (joinder through the words alone)

Answer 32

Same property left to different people in same clause with allocation of shares.

Example:
Clause 1 : I leave my house to Adam and Ben in equal shares.
Presumption against accrual unless contrary intention in the will.

BUT criticised in case law and legal literature.
Lello v Dales AD: verbis tantaum does not automatically lead to a presumption against accrual. In such cases emphasis should be placed on testator’s probable intention.