Wills

Question 1

For a will to be valid it must?

sec? 5 reqs

Answer 1

section 2(1)(a) of the Wills Act 7 of 1953

1. must be in writing
2. must be signed (initials or or making of a mark which can only be done by the testator) at the end thereof (below the end of the written will) by the testator or some other person in his presence and by his direction
3. signature must be made by the testator or by another person acting on his direction in the presence of two or more competent witness (14 years or older competent to give evidence in a court of law; cannot be a beneficiary)
4. the witness must attest to and sign the will in the presence of the testator and of each other or if the will is signed by another then in their presence
5. if the will consists of more than one page each page other than the last page must also be signed by the testator or by another person anywhere on the page & the witnesses

Question 2

If testator signs by making a mark OR the will is signed by some other person then?

Answer 2

A commissioner of oaths must certify that:

1. he has satisfied himself of the identity of the testator
2. the will signed is the will of the testator
3. commissioner of oaths must sign each page anywhere on the page OTHER than the page on which his certificate appears

Question 3

Commissioner of oaths certificate?

Answer 3

Section 2(1)(a)(v) Wills Act 7 of 1953

I, (full name) of (full address) in my capacity as commission of oathscertify that I have satisfied myself as to the identity of the testator (full name and surname) and that the accompanying will is the will of the testator.

SIGNED at (place) on the ___ day of __ 2024

_______________________
Commissioner of oaths

Question 4

Section 8(4B) of the Administration of Estates Act

Answer 4

The Master may, for the purposes of the Act, accept a duplicate original of the will in place of the original document. However, the Master will NOT accept copies or photocopies of the original signed will unless accompanied by a court order.

Question 5

Requirements for amending a will?

sec? 3 reqs

Answer 5

Section 2(1)(b)
A testator is free to amend his will at any time.

The amendment:

1. must be identified by the signature of the testator or another person made made in his presence and at his direction; and
2. such signature must be made by the testator or by such other person or must be acknowledged by the testator and, if made by such other person, also by such person, in the presence of two competent witnesses who are present
3. the amendment must be further identified by the signature of such witnesses made in the presence of the testator and each other

Question 6

Revocation of a will requirements?

sec? 3 options

Answer 6

A testator can revoke their will at any time before death.

Section 2A of the Wills Act: The court may declare a will or part of it revoked if satisfied that the testator:

• Made a written indication on the will or caused it to be made before death; or
• Performed or caused an act, apparent on the will, intending to revoke it; or
• Drafted or caused another document to be drafted, intending to revoke the will or part of it.

Question 7

Examples of a revocation clause in a will?

Answer 7

I hereby revoke all previous wills made by me

OR

we hereby revoke all previous will made by us jointly or severally

Question 8

what clause should always be included in a will?

Answer 8

Revocation clause; testator must have the necessary intention to revoke

Question 9

What happens if a subsequent will does not contain an express revocation clause but has dispositions inconsistent with a previous will?

Answer 9

if subsequent will does not contain an express revocation clause but contains dispositions that are inconsistent with those in a previous will the previous will is revoked to the extent of the inconsistency

Question 10

Can a joint will be revoked by one party after the death of the first dying but before the survivor has adiated? What is the exception if massing occurred and the surviving spouse accepted certain benefits under an earlier joint will?

Answer 10

joint will may be revoked by any one of the parties even after the death of the first dying but before the survivor has adiated; HOWEVER if a surviving spouse has accepted certain benefits under an earlier joint will in which massing occurred that earlier will cannot be revoked

Question 11

Are spouses allowed to unilaterally revoke testamentary stipulations in an ante-nuptial contract?

What must happen for the revocation to occur in a joint will?

What choice does the surviving spouse have regarding the ante-nuptial contract or the provision of the joint will?

Answer 11

• spouses are prohibited from unilaterally revoking testamentary stipulations in an ante nuptial contract;
• both spouses must jointly revoke the testamentary stipulation of the ante nuptial contract in a joint will;
• the surviving spouse will however have a choice whether to accept the ante-nuptial contract or the provision of the joint will

Question 12

Purpose of a codicil?

Answer 12

amend any one or more of the clauses of any existing will

Question 13

What is a codicil?

Answer 13

separate written document whereby specific provisions of the existing will to which it refers or those provisions which are inconsistent with the codicil are revoked

Question 14

Structure of a codicil

Answer 14

I, name of testator, ID #, hereby make the following codicil to my will executed at place on date.

All the remaining provisions of my said will remain unchanged

Question 15

revocation by destruction

Answer 15

possible for a testator to revoke his will by destroying it as long as this is done with the necessary intention

Question 16

True or false = a will is presumed to be revoked if it cannot be found after the death of the testator

Answer 16

True

Question 17

What kind of orders can a court make in relation to a will?

Answer 17

1. Order to accept formally defective will
2. Order declaring will to be revoked
3. Order of competency to inherit

Question 18

In what circumstances will the court order to accept formally defective will?

sec?

Answer 18

Under section 2(3) of the Wills Act:

• If the court is satisfied that a document or amendment drafted or executed by a deceased person was intended to be their will or an amendment to it,
• The court can order the Master to accept that document for estate administration, even if it doesn’t meet all the formal requirements.

Question 19

In what circumstances will the court order declaring will to be revoked ?

Answer 19

court is satisfied that the testator had the necessary intention to revoke his will

Question 20

In what circumstances will the court order of competency to inherit?

sec?

Answer 20

Under Section 4A(2) of the Wills Act:

For a person disqualified from inheriting to be declared competent to receive a benefit, the court must be satisfied that:

The person did not commit fraud, OR

The person did not unduly influence the testator when the will was executed.

Question 21

Clauses to always be included in a will?

11

Answer 21

1. Heading
2. Revocation clause
3. appointment of executor
4. security
5. legacies
6. heirs
7. limited interest (fideicommissum, usufruct, habitatio, usus)
8. heir to inherit free ICOP and accural systems
9. appointment of guardians (minor childre)
10. testamentary trust
11. execution/attestation clause

Question 22

True or False = a will that has been drawn up electronically must be printed and signed in hard copy as a will signed by scanning an electronic signature is invalid

Answer 22

True

Question 23

Capacity to make a will

Answer 23

Every person who is 16 years or older may make a will, must be mentally capable of appreciating the nature and effect of his act

Question 24

Testator should be identified by what identifiers in his/her will?

Answer 24

Full names, surname,ID, residential address

Question 25

Burden of proof that testator was mentally incapable at the time rests on?

Answer 25

The person alleging the same

Question 26

Provisions of a will may not be?

Answer 26

1. illegal
2. immoral
3. vague
4. contrary to the Constitution

Question 27

Testators freedom of testator is limited by the following Subdivision of Agricultural Land Act 70 of 1970

Answer 27

you cannot subdivide agricultural land or transfer an undivided share or portion of it without getting permission from the Minister. However, to bypass this restriction, you can establish a company or trust and have the company or trust purchase the land from the deceased estate.

Question 28

Testators freedom of testator is limited by the following Close Corporations Act 69 of 1984

Answer 28

Under the Close Corporations Act 69 of 1984, section 35:

• Deceased member’s interest can go to a legatee/heir, but only with the consent of remaining CC members.
• Consent must be given within 28 days after the executor’s request.
• If no consent, the interest must be sold to remaining members or an eligible person.

Question 29

Testators freedom of testator is limited by what section of The Pension Funds Act 24 of 1965

Answer 29

Under the Pension Funds Act 24 of 1965, section 37C:

• Benefits from a pension, provident, or retirement annuity fund do *not form part of the deceased member’s estate.
• If no dependants are found, the designated nominee receives the benefit.
• If estate liabilities exceed assets, the nominee’s payment covers the shortfall up to the benefit’s value.
• Any leftover amount goes to the nominee.

Question 30

Testators freedom of testator is limited by the following Immovable property (removal/modification of Restrictions Act 94 of 1965)

Answer 30

Under the Immovable Property (Removal or Modification of Restrictions Act 94 of 1965):

• A fideicommissum can only be passed down to two successive beneficiaries (fideicommissarii).
• After the second beneficiary, the property is free from any fideicommissum restrictions.
• The second beneficiary gains full ownership rights.

Question 31

Testators freedom of testator is limited by the following Maintenance of Surviving Spouses Act 27 of 1990

Answer 31

surviving spouse has a claim against the estate for reasonable maintenance until death/remarriage provided they are unable to provide for themselves; child can also claim maintenance; disinherited spouse can claim maintenance in some circumstances

Question 32

Testators freedom of testator is limited by the following Administration of Estates Act 66 of 1975

Answer 32

Before the liquidation and distribution account is finalized, the executor can, with the Master’s consent, release money and property from the estate. This provision is meant to provide for the subsistence of the deceased’s family or household.

Question 33

Testators freedom of testator is limited by the following Matrimonial Property Act 88 of 1984

Answer 33

For a surviving spouse married OCOP with accrual:

• They have a claim against the estate for the accrual.
• This claim is a concurrent claim against the deceased’s estate.
• It takes priority over any testamentary dispositions, donations, or inheritance under intestate succession.

Question 34

What is Nasciturus fiction? Section?

Answer 34

Under section 2D of the Wills Act:

A foetus that is subsequently born alive acquires all the rights of a born child, whenever it benefits them.

Question 35

Requirements for the nasciturus fiction?

Answer 35

1. that the child has been conceived by the time the benefit accrues (the date of the death of the deceased)
2. the the child is subsequently born alive
3. that the fiction works to the advantage of the nasciturus

Question 36

Power of assumption

Answer 36

• An executor cannot substitute another person to act in their place.
• A power of assumption allows the executor to request a co-executor.
• This can only happen if the will explicitly permits it.

Question 37

Why is the ecexutor required to furnish security (bond security)?

Answer 37

The executor is required to provide furnish security (usually in the form of an insurance policy) for the proper execution of his duties and to make good any losses that may be suffered by the beneficiaries

Question 38

Why is it preferable to exclude the provision of security in a will? What would the clause look like?

Answer 38

It is a slow process

• As executors of our estate we appoint as executor; should he be unable or unwilling to act as executor we appoint
• We grant to our executor all powers and rights which may be allowed in law and additionally the power of assumption in that capacity. My executors, and assumed executors, are exempted from furnishing security for the due performance of their duties as executor(s), and the Master of the High Court is hereby directed to dispense with such security.

Question 39

When is the Furnishing of security not required by the Executor?

Answer 39

The will directs otherwise or the executor is the surviving spouse, parent or child of the deceased

Question 40

What is a legatee?

Answer 40

Legatee is a beneficiary whether natural person or an institution to whom the testator bequeathed a specific asset or a specific sum of money in terms of his will or ante-nuptial contract

-identified by name and relationship to the testator

Question 41

What is an heir?

Answer 41

Person who inherits the residue of the estate after all
1. debts,
2. costs of administering the estate,
3. estate duty and
4. capital gains tax have been paid and all
5. legacies have been distributed

• aka residuary legatees

Question 42

What is a pre-legacy?

Answer 42

special bequest to a beneficiary who enjoys preference over other legatees and is thus paid before any other legacy

Question 43

The legacy will fail if?

Answer 43

1. Invalid at the time of the will’s execution (disqualified legatee)
2. Asset bequeathed has been lost or destroyed
3. Subject matter voluntarily alienated by the testator
4. Asset acquired by the legatee before the testator’s death
5. Legacy’s specific purpose becomes impossible (e.g., farm with an option to purchase by a third party)
6. Legatee predeceased the testator or died before the legacy vested
7. Testator’s estate is insolvent
8. Legatee fails to claim the legacy within the 3-year prescriptive period

Question 44

What is a usufruct?

Answer 44

• Personal servitude (usufruct) gives the usufructuary the right to possess and use another’s property and receive its fruits.
• Usufructuary must eventually return the property to the owner.
• Limited to the lifetime of the usufructuary.
• Cannot be transferred or ceded to anyone other than the owner of the property.

Question 45

What is a habitatio?

Answer 45

Right to live in another’s house without detriment to it; entitled to let

Question 46

What is a usus?

Answer 46

allows usury the right during his lifetime/shorter period to use things belonging to someone else for his own needs or those off his household without impairment of the essential qualities of the thing

• use for himself + immediate family
• not entitled to let

Question 47

What is fiduciary substitution?

Answer 47

Fideicommissum residui = testator provides that the fiduciary only has to hand over the residue of the property that is left upon termination of his interest therein; fiduciary will be entitled to alienate the property but has the obligation to hand over the residue

• entitled to alienate but has an obligation to hand over the remainder thereof OR one quarter of the value of the assets received from the testator whichever is the greater unless the will stipulates otherwise

Question 48

What happens if a fiduciary waives his right?

Answer 48

Acceleration of benefits: if a fiduciary waives his rights they pass immediately to successors who do not have to wait for his death unless a condition/term as to time has been imposed by the testator or there is an indication to the contrary

Question 49

fideicommissum residui clause example

Answer 49

I bequeath my entire estate to ______, subject thereto that whatever shall remain of my estate upon their death, shall devolve to my children in equal share

Question 50

Fideicommissary substitution clause example

Answer 50

I bequeath to my ______ namely details of farm/house etc. Held by deed of transfer T____/_____ subject thereto that upon his death the aforesaid farm shall be transferred to _____

Question 51

When does a testamentary trust come into effect?

Answer 51

On the death of the testator

Question 52

When will a testator make use of a testamentary trust?

Answer 52

When he wishes to benefit certain beneficiaries without transferring ownership and control of the assets to those beneficiaries - ownership of the assets vests in the trustees who administer the trust on behalf of and in the interests of the the beneficiaries

Question 53

When are testamentary trusts usually created?

Answer 53

Usually created to protect the interests of minor heirs as ito the Administration of Estates Act money that becomes due from an estate to a minor must be paid to the Guardians’ Fund unless special provision to the contrary is made

Question 54

How do you provide for a testamentary trust in a will?

Answer 54

The entire trust deed can either be incorporated in the will itself or contained in a separate document attached to the will as an annexe - if the latter the deed must comply with the formalities of a will and the signatories must also sign all pages of the deed

• trust must be registered and given a trust number

-Master may require trustees to furnish security even if they have been exempted from doing so ito the trust deed/will

Question 55

The nomination of a guardian is subject to which section of which Act?

Answer 55

section 5(3)(b) of the Matrimonial Affairs Act 37 of 1953

• a 1st dying parent cannot nominate a co-guardian for his/her minor children but the last dying parent can do so as he/she is the only natural guardian of the minor at that time

Question 56

Is the nominated guardian required to furnish security?

Answer 56

Yes unless they are exempted from doing so ito the will

Question 57

Example of clause in will appointing guardian

Answer 57

If my spouse does not survive me and I leave minor children surviving me, I appoint as guardian of the person and property of my minor children their relationship + name. They shall have guardianship of my minor children and shall serve without security. If they do not qualify or for any reason ceases to serve as guardian, I appoint as the successor guardian my relationship + name.

Question 58

What is a joint will?

Answer 58

A will by two or more testators in which they made their respective will in 1 document

-although on a single documents it is interpreted as two separate wills of the parties –> either party may revoke/vary the will w/out the consent of the other

Question 59

What is a mutual will?

Answer 59

joint will in which two or more testators mutually benefit each other in one document

-element of reciprocal disposition

Question 60

What are the two possibilities in which an insolvency clause would be used in a will?

Answer 60

1. The testator could bequeath a benefit conditionally (if insolvent the beneficiary forfeits the benefit in which case it would go to …)
2. beneficiary foresees that his own estate is about to be sequestrated and repudiates the benefit (Wessels)

Question 61

Example of an insolvency clause in a will?

Answer 61

Any inheritance, legacy or other benefit that would, but for the ensuing provision, have vested in an insolvent estate at any time in terms of this, my will, shall not so vest but shall instead vest and be dealt with in all respects as if the insolvent person concerned had died immediately prior to the time at which the vesting ins/her estate would otherwise have taken place.

In the event of an heir’s estate being declared insolvent him/her committing an act of insolvency as defined in the Insolvency Act 24 of 1936, such heir shall forfeit his/her right to receive his/her inheritance and my executor shall in his/her absolute discretion, during such heir’s lifetime, retain the inheritance in trust and utilise same of the maintenance of such heir and his/her dependants for as long a period as he/she considers necessary and, on his/her death, such inheritance shall devolve on his/her descendants

Question 62

When is a common calamity clause used?

Answer 62

Should be used in a mutual will for the case where they might die at the same time in a common calamity in order to prevent intestate succession

• also instance where after the death of the first testator the second dies before he/she has executed a new will

Question 63

Example of a common calamity clause?

Answer 63

In case of a simultaneous death, and/or either party becoming deceased due to the same event or accident that cause the death of the other within 6 months of the first dying and without the second dying person having made another will, then our estate will devolve per stripes as follows

Question 64

Example of clause excluding from community estate or accrual when beneficiary is marries ICOP or OCOP w/ accrual?

Answer 64

No benefit accruing to any beneficiary in terms of this my will, nor the fruits derived therefrom, shall form part of the joint estate or any accrual regime of such beneficiary and any present of further spouse of his/hers.

All amounts paid accruing to my beneficiary under this will shall be and remain his/her sole and exclusive property and no spouse of such beneficiary shall at any time or under any circumstance have or obtain any claim or right thereto.

Question 65

Example of an execution clause?

Answer 65

Signed at ____ on this the _th day of month year in the presence of the undersigned witnesses who each signed in the presence of each other.

Witness
1. ______________
2.______________

                                       \_\_\_\_\_\_\_\_\_\_\_\_\_\_
                                      TESTATOR

Question 66

Section 2B of the Wills Act

Answer 66

if a testator dies within 3 months of becoming divorced and that person executed a will before such divorce the will shall be implemented as if the testators previous spouse had died before the date of divorce unless it is clear form the will that the testator intended to benefit their ex-spouse despite the divorce

• ONLY applies where the testator dies within 3 month of the divorce if they live beyond and do not alter the will the existing will is used

Question 67

What is a living will?

Answer 67

An advance directive in which a person expresses his refusal to consent to any medical treatment and attention that will keep him alive by artificial means when his is no longer competent to express his instruction

Question 68

Example of an advanced directive clause in a will?

Answer 68

It is my wish that in the event of my physical condition being such that there is little or no prospect of my regaining my health to such an extent that I will be able to live a reasonable lifestyle my life shall not be prolonged by artificial means and that I merely be given appropriate medication to relieve me of my pain and discomfort during my last days, even if it precipitates or hastens my death.

Question 69

Structure of an adiation certificate?

Answer 69

I the undersigned ______
In my capacity as the surviving spouse of the late _____ do hereby declare as follows:

I am aware of the conditions contained in the joint last will and Testatement of the deceased and myself dated _____ which constitutes a massing of out separate estates.

I am aware of that I have a right to either accept or reject the said will and that the consequences of adiation and repudiation have been explained to me.

Under the circumstances I have decided to adiate the terms of the will which will have the effect that I will forfeit my own estate in favour of our son/daughter _______ and I will receive the usufruct of both estates.

Witnesses signatures (2)

Surviving spouse signature

I the undersigned Jenny James an attorney hereby certify that I have explained to the said SS the consequences of either repudiation and adiation of the joint will of herself and the deceased. That she stated she fully understands the consequences of either repudiation and adiation of the will and that she has elected to accept the will.

witnesses signature (2)
Attorney’s signature

Question 70

Section 4A(1) Wills Act

Answer 70

cannot inherit if you act as a witness to the will

Question 71

Section 2C(1) Wills Act

Answer 71

If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.

Question 72

Section 2C(2) Wills Act

Answer 72

If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.

Question 73

Section 2D(1)(a) Wills Act

Answer 73

an adopted child shall be regarded as being born from his adoptive parent or parents and, in determining his relationship to the testator or another person for the purposes of a will, as the child of his adoptive parent or parents and not as the child of his natural parent or parents or any previous adoptive parent or parents, except in the case of a natural parent who is also the adoptive parent of the child concerned or who was married to the adoptive parent of the child concerned at the time of the adoption

Question 74

Section 2D(1)(b) Wills Act

Answer 74

the fact that any person was born out of wedlock shall be ignored in determining his relationship to the testator or another person for the purposes of a will;

Question 75

Section 2D(1)(c) Wills Act

Answer 75

any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive.

Question 76

Section 4A(2)(a) Wills Act

Answer 76

a court may declare a person or his spouse referred to in subsection (1) to be competent to receive a benefit from a will if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will;

Question 77

Section 4A(2)(b) Wills Act

Answer 77

a person or his spouse who in terms of the law relating to intestate succession would have been entitled to inherit from the testator if that testator has died intestate shall not be thus disqualified to receive a benefit from that will: Provided that the value of the benefit which the person concerned or his spouse receives, shall not exceed the value of the share to which that person or his spouse would have been entitled in terms of the law relating to intestate succession;

Question 78

Section 4A(2)(c) Wills Act

Answer 78

a person or his spouse who attested and signed a will as a witness shall not be thus disqualified from receiving a benefit from that will if the will concerned has been attested and signed by at least two other competent witnesses who will not receive any benefit from the will concerned.