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Succession Lecture Notes (Term 1)

UNIT 1: INTRODUCTION

Introduction:

 An estate is made up of assets, debts, liabilities and obligations.

o Inheritance = assets – (liabilities + obligations + administrative costs)

o ∴ succession concerns what someone inherits and who actually qualified to inherit.

 The Law of Succession revolves around Testate and Intestate Succession. A deceased
person who dies leaving a valid will is called a testator or de culus (which means the
person from whom someone will inherit)

o An heir will inherit only the assets that are left once all the outstanding liabilities
have been paid. (note that this is different from Roman Law where universal
succession meant that you inherit both the assets as well as the liabilities)

 The administration of estates is governed by the Administration of Estates Act 66 of


1965 and the person who administers the estate is called the Executor.

o Administration means that you take over the deceased estate, pay liabilities and
then distribute what is left to the heirs.

 If there in no will / ANC (note that you can include provisions for succession in a valid
ANC) or if there is an incomplete / invalid will, when intestate succession will kick in
which is governed by the Intestate Succession Act 81 of 1987.

o This act helps identify who will inherit in so far as the deceased had failed to
indicate who the heirs are.

 If there is a will, then inheritance will be i.t.o. Testate Succession.

 A will is a unilateral declaration of the wishes of the testator which sets out the way
that the assets must be apportioned after his / her death.

o The assets can be given to designated person(s) or institutions.

o There are rules with set out just how to institute a valid will.

Beneficiaries:

 Beneficiaries are people upon who the testator’s inheritance will divulge upon the
testator’s death.

 There are two categories of testator:

a) An Heir: will either inherit the entire inheritance / a proportion of it / a particular


part of it / the residue of the inheritance.

o The testator can nominate more than one heir who can inherit i.t.o. a will /
ANC or through intestate succession.

o This inheritance will be what is left of the estate after the Executor (who gets a
percentage of the deceased estate) has paid all the outstanding liabilities.

b) A Legatee: will inherit a specific asset or an amount of money.

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Succession Lecture Notes (Term 1)

o A legatee inherits a legacy which can take any form. It can ∴ be seen that a
legatee inherits i.t.o. Testate Succession.

o You can have what is known as a pre-legacy which is a special bequest, which
has preferences over all other bequests, which has preference over all other
bequests i.t.o. the testator’s instructions. (e.g. the testator says that R5 000 must be paid
to Mr X before all other bequests)

What can a Testator Bequeath?

 A Testator bequeaths bequests, including:

a) His own assets

b) An assets belonging to a 3rd party, providing that he is aware that the asset does
not belong to him but to the 3rd party

o The executor will then have a duty to obtain that specific bequest from the 3rd
party.

o If the testator is not aware that the asset belongs to someone else, then the
bequest is nul and void because it was based upon mistake.

c) An asset in which he has joint ownership with someone else; although the testator
can only bequeath his / her own share.

o This often occurs with couples marries out of Community of Property.

The Difference between Heirs and Legatees:

 Once the executor has paid the deceased estate’s liabilities, the executor then pays
out the legatees. Only then will the heirs get paid out.

o ∴ the legatees will always be in a stronger position than heirs.

 Heirs are also obliged to collate, whereas legatees are not. Collating is a formula where
the assets are divided to become less.

 Accrual also applies to heirs but only marginally to legatees.

Adiation & Repudiation:

 An heir has the right to elect to adiate (accept) or repudiate (reject) the benefit /
bequests.

 If there are both a will and an ANC then you will inherit i.t.o. both of them and so you
must repudiate one of them.

o The default position is that you are assumed to have adiated the benefit. If,
however, you choose to repudiate the bequest, then this election must be
communicated to the executor in writing.

o If you inherit and adiate an asset, then you cannot attack the validity of the will.

o If an obligation is placed on a legatee / heir, your acceptance must be in writing.

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Succession Lecture Notes (Term 1)

 The effect of adiation is to give a vested right against the executor to force him to pay
out the asset / transfer the asset to your name.

 When you repudiate the benefit, then the effect will depend on the provisions and
circumstances of the particular will.

o E.g. a will can make a provision for a substitution, where the provision will be given
effect in the event of a substitution. (a car goes to Mr X; but if he refuses it, it will
go to Mr Y)

o If there are no such provisions, then there are a number of other possibilities:

(i) Statutory Substitution

(ii) Statutory Accrual

(iii) The Rejected asset can fall back into the residue of the estate.

(iv) The asset can be refused; then it will be divulged intestate.

 The decision to adiate / repudiate is FINAL; unless it can be proved that the election
was done with excusable ignorance of your rights.

Contents of Wills & Freedom of Testation

 SA places a high premium on the freedom of testation so that the testator can dispose
of assets as he / she sees fit.

o Many European countries do not follow this principle.

o Corollary to the freedom of testation is the freedom to revoke a will, ∴ you are
free at any time to change / cancel your will.

 Even so there are certain limitation that have been placed on the freedom of testation:
1. Common Law restrictions:

a) If a provision is generally unlawful, it will no be given effect to.

b) If a provision is contra bonis mores, then it will also not be given effect to.
c) If a provision if vague / impossible / impractical, then it will also not be given
effect to.

2. Statutory Limitations

a) The Immovable Property Act 94 of 1965: allows a ct to alter / amend any


provision(s) placed on immovable property by a will.

b) The Subdivision of Agricultural Land Act 70 of 1970: limits the testator’s ability
to subdivide agricultural land by means of a will. (done for practicality)

c) The Trust Property Control Act 57 of 1998: authorises a ct to amend / alter the
provisions of a trust or even terminate one.

d) The Maintenance of Surviving Spouses Act 27 of 1990: allows the surviving


spouse of a testator (who did not leave anything to that spouse) to claim
maintenance.

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Succession Lecture Notes (Term 1)

o This also applies to the minor children of the deceased.

e) The Constitution of South Africa Act 108 of 1996: this is open to debate. E.g. if
a testator leaves all his assts to his male heirs.

o Section 9 states that you may not discriminate on the grounds of gender;
however, b/c the testator has freedom of testation, his wishes will be
carried out.

o Section 25 (1) gives the right to dispose of one’s property during one’s
lifetime as well as at the time of death. If testator’s wishes were not carried
out it, then it would reduce the ‘freedom of testation’ to a mere fiction.

 The legal nature of a deceased’s estate:

o Greenberg v Estate Greenberg 1955 (3) SA 361 (A)

 This case dealt with the question of who the deceased’s estate belonged to
after the deceased has died and before it is administrated.

 The court had two issues to decide in this case:

a) The heir does not become the estate owner immediately upon the death of
the deceased.

o The heir has to go through a process to get the estate; ∴ the


Administrator gets the estate initially.

b) Whether the estate itself is a Juristic Entity and if so; whether it can
belong to itself.

o The prevailing stance in our courts is that the Executor has proprietary
rights over the assets of the estate; however, this is only in his
capacity as Administrator. (i.e. he does not get full rights)

 The AD did not give a decisive answer; however, it held that the executor is the
owner of the deceased’s assets in his official capacity during the period of
administration

 Proprietary rights are invested in the executor in his capacity as a


representative of the deceased’s estate.

Vesting and Enforcement of Rights:

 A beneficiary’s claim becomes vested when a deceased’s estate falls open. This occurs
when the deceased dies and the benefit is vested.

o This moment is known as delatio or dies cedit (the moment that the beneficiary is
vested with the right)

o The moment that the beneficiary can enforce the right is known as dies venit.

o Before the death of the deceased, a beneficiary only has an expectation or a spes.

 Both dies cedit and dies venit can coincide; however, dies venit can never occur before
dies cedit. The general principle is that dies venit and dies cedit occur together, there
are certain exceptions:

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Succession Lecture Notes (Term 1)

1. Time Clauses: here the time when the asset is to be passed / transferred to the
beneficiary is stated

 E.g. X leaved his house to Y once she turns 21.

2. Conditions: This is when certain conditions are attached to the benefit which have to
be met before the asset can be transferred

 E.g. X leaves his house to Y once she graduated from university.

3. Type or Nature of Bequest: you can sometimes have a will which excludes vesting
(dies venit)

 E.g. A trust can be set up where it is up to the trustee to determine when you
get the benefit.

4. If the Will is Inoperable: if the will is inoperable b/c it was invalid, missing
witnesses, there were deletions, etc; then it cannot be used.

 The moment that a will becomes inoperable, then intestate succession heirs are
vested with the rights

 Importantly, the rights vested in the heir are personal rights and as such can only
be enforced against the executor of the estate.
Example
 E.g. X has a will which states that he will leave his farm to the Nelson Mandela
Children’s Fund; however, the farm may only be transferred to the trust once X’s
wife dies. Before the wife dies, the trust goes insolvent. What happens?

o Dies cedit would only take place when the wife dies. As the fund went
insolvent before this, the will has become inoperable and the intestate
succession heirs are vested.

The Basic Requirements for Succession:

a) Someone (the deceased) must have died

o ∴ you cannot use a spes as security for something.

o Where a spouse has disappeared, you must get a presumption of death order before
the estate can be divided.

b) The beneficiaries / heirs must be alive at the time of delatio where the estate falls
open.

o If the beneficiary dies before delatio, then dies venit does not occur.

o There is an exception to this: according to the Nasciturus Rule, you can leave your
estate to unborn children, provided the will has been worded correctly.

 The child does have to subsequently be born alive and it has to be for his
benefit.

c) Where people die simultaneously, then they cannot inherit from each other.
Importantly, there is no presumption of survival or simultaneous death.

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Succession Lecture Notes (Term 1)

o The courts will look at the facts of each case, only if there is no evidence to the
contrary will they declare simultaneous death.

o Ex Parte Graham 1963 (4) SA 145 (D) (Presumption regarding sequence of death)

 A fifty year-old woman (the testator) left her estate to her adopted 16 year-old
son in her will. The will also provided that if the son should predecease the
testator; then the entire estate would go to the testator’s mother.

 Both testator and her son were killed in plane crash. The executor of the estate
then awarded the entire estate to the testator’s mother.

 The Registrar of Deeds, however, wanted the court to give an order declaring
either that the son had died before or simultaneously with testator before he
would transfer any immovable property to the mother

 The General Rule is that: when the sequence in which people have died
cannot be proven on a balance of probabilities; then there is no
presumption of survival or simultaneous death.

 Time of death is a question of fact; determined without the aid of


presumptions.

 Where there are no witnesses to testify that one person died before
another; then the courts can do nothing else but find that they died
simultaneously.

 The court held that both the mother and her son had died simultaneously
death; therefore testator’s mother inherited entire estate.

 A beneficiary can inherit from a deceased estate only if the beneficiary survives
the deceased.

 ∴ if a person dies simultaneously or before the other, the person cannot


inherit form the other.

o E.g. X leaves his farm to his wife, W. They both die in a plane crash. X’s intestate
heirs = A and B and W’s intestate heirs = C and D, who will inherit?

• If they died simultaneously then W cannot inherit from X; ∴ A and B will inherit
entire estate.

• If X died before W then only C and D will inherit.

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Succession Lecture Notes (Term 1)

UNIT 2: INTESTATE SUCCESSION:

 This section deals with what happens to someone who has failed to provide for the
devolution of his / her estate by means of a valid will / contract (ANC) or of the will is
partially or wholly invalid.

o Note that w.r.t. intestate succession we refer to the deceased, not the testator.

 There are various instances where intestate succession will occur:

1. Where there is no will

2. Where there is a will but it is wholly / partially invalid


3. Where there is a valid will but the testator did not provide for the devolution of all
of his assets.

 i.e. there are some assets left over.

4. When there are conditions in the will that cannot be fulfilled

5. Where the heirs repudiate and then other beneficiaries must be found

Important Concepts:

 Intestate heirs are blood relatives, which can be divided into various categories:

1. Descendants: include children and grandchildren


2. Ancestors: relatives from whence you came, such as parents, grandparents and
great-grandparents

3. Collaterals: these include aunts, uncles, sisters, brothers, nieces and cousins

 i.e. they are those people with which the deceased has two ancestors.
4. Half-Collaterals: half-brothers, half-sisters, etc

 i.e. the deceased shares only one blood-relative.


 These blood relatives are divided into Parentela:

o 1st Parentela: includes the deceased and his descendants.

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Succession Lecture Notes (Term 1)

 I.t.o. s1 (1) (a), a spouse is counted as a descendant.

o 2nd Parentela: includes the deceased’s parents and their descendants

o 3rd Parentela: includes the deceased’s grandparents and their descendants


o 4th Parentela: includes the deceased’s great-grandparents and their descendants.

 The different descendants are joined by stirps or branches. A stirp is only counted if it
is a surviving chld of the deceased or if it was a predeceased child of the deceased but
is survived by descendants.

 Representation: This takes place when an heir cannot inherit, then this inheritance will
go to an heir who will represent him.

o This will only occur in the 1st and 2nd Parentelas.

o In the 3rd and 4th Parentelas, inheritance will be per capita to the closest blood
degree and not by representation.

 To do this you count the number of people and divide the estate by this
number, and each person gets a share

 X dies intestate, his assets (once all liabilities have been paid) are worth R15 Million. X
was predeceased by his daughter Anthea. Anthea had a daughter Cathy who is still
alive. X’s sons, Barry and Donald are also still alive. Work out the stirps and who will
inherit and how.

o 3 stirps and inheritance will be by representation

 X dies intestate and leaves assets to the value of R750 000. He is predeceased by his
brother Larry and his sister Mary. Larry’s daughter Olivia is still alive, as are Mary’s
sons, Peter and Ricky.

o X has no descendants and ∴ no survivors in the 1st parentela. We ∴ have to look at


the 2nd parentela

 X dies intestate, he is survived by his wife. His mother M is still alive. His sister C and
his brother B are also alive. His sons D and E predeceased his as did his father F.

o The survivor in the 1st parentela is the wife.


o Inheritance will be in the 1st stirp i.t.o. s1 (1) (a) of the Intestate Succession Act

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Succession Lecture Notes (Term 1)

THE ORDER OF SUCCESSION:

Survivors in the 1st Parentela  succession takes place per stirp with representation

1. The position where the deceased is survived by descendants but not by spouse:

 The descendants will inherit the entire estate; per stirp with representation i.t.o. in
terms of s1 (1) (b) of the Intestate Succession Act.

 E.g. X dies intestate and leaves assets to the value of R100 000. He is survived by his
children A and B; her mother M and her father F. She is predeceased by her brother E
and her husband H.

o Go to the 1st parentela: was married but his spouse predeceased him. Inheritance is
according to representation; ∴ i.t.o. s1 (1) (a) of the Act, A and B will get R50 000
each.

2. The position where the deceased is survived by both descendants and by their spouse:

 First you must give effect to the matrimonial property regime (i.e. whether the marriage is in
CoP, with accrual, out of CoP);
what is left over or the residue will be divided amongst the
descendants per stirp with representation i.t.o. of s1 (1) (c) (ii) and s1 (4) (a) of the
Intestate Succession Act.

o I.t.o. s1 (1) (c) (i) of the Act, a spouse is entitled to a child’s share or an amount
which is set by the Minister or published in the Government Gazette (currently R125 000);
whichever is greater.

o I.t.o. s1 (1) (c), if the estate is smaller than R125 000, the surviving spouse can
choose to take all of it or a child’s share. If the estate is larger than R125 000, she
can take a child’s share of R125 000.

 Descendants can only inherit of the estate is larger than R125 000.

 E.g.’s
(1): X dies intestate, leaving assets to the value of R600 000. His wife, W (married in CoP)
survives him, as do his children A and B and X’s brother C.

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Succession Lecture Notes (Term 1)

o 1st go to the 1st parentela (A, B and W)  give effect to the matrimonial property
regime. Thus X’s estate is R300 000 and his wife’s estate is also R300 000. (note that
this is an inheritance and is ∴ part of what is due to her)

o Then divide X’s R300 000 per stirp according to representation (b/c 1st parentela)

 W can choose a child’s share and ∴ A, B and W will then get R100 000 each or
she can choose R125 000: then A and B will get [R300 000-R125 000=175 000]

 Then [175 000/2=R87 500 each to A and B]

(2): the same scenario as e.g. 1; but here X was married out of CoP.

o Inheritance will still be per stirp with representation; however, the wife still has an
election but the total will be divided by three.

(3): the same scenario again, although her X was married out of CoP with Accrual,
which was R150 000.

o Give effect to the matrimonial property regime where accrual is R125 000.

 [R600 000-R150 000=450 000]; if W takes a child’s share then A, B and W will
get [R450 000/3=R150 000] each to A, B and W.

 If W takes a spouses share then: [R450 000-R125 000=R325 000]  [R325 000/2
=R162 500] each to A and B

3. The position where the deceased is survived by a spouse, but not by descendants:

 The surviving spouse inherits the entire estate in terms of s1 (1) (a) of the Intestate
Succession Act 81 of 1987.

Survivors in the 2nd Parentela – succession takes place per stirp with representation

4. The position where the deceased is not survived by a spouse or by descendants, but by
both parents:

 I.t.o. s1 (1) (d) (i) of the Intestate Succession Act, the deceased’s parents will inherit
the entire estate in equal portions / parts.

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Succession Lecture Notes (Term 1)

5. The position where the deceased is survived by only one surviving parent and no
descendants:

 In this case, the one surviving parent will get the entire estate i.t.o. s1 (1) (d) (ii) of
the Intestate Succession Act

6. The position where the deceased is not survived by a spouse or descendants, but by one
parent and descendants of predeceased parent:

 The estate will be split into two equal portions, with each half going to the parents’
estates.

o The surviving parent inherits half of the estate while the descendants of the
predeceased parent will inherit the other half i.t.o. s1 (1) (d) (ii) of the Intestate
Succession Act.

 E.g. X dies intestate and leaves assets to the value of R100 000. His wife, W, and his
children (A, B and C) all die in an aeroplane crash the year before X’s death. X’s
mother, M, is alive but his father, F, is dead. E, F’s son from a previous marriage
survives.

o There are no descendants in the 1st parentela.


o In the 2nd parentela, inheritance in per stirp with representation.

 As X’s estate is divided in two, R50 000 will go to M; and the other R50 000 will
go to F’s estate, and ∴ to E.

7. The position where the deceased is not survived by a spouse or by descendants, but
only by the descendants of a parent:

 The estate will be split into two equal portions / parts.

o Half of the estate goes to the descendants of the predeceased mother, and half to
the descendants of the predeceased father, in terms of s1 (1) (e) (i) of the Intestate
Succession Act.

o The deceased full blood collaterals (inherit with a full hand) essentially inherit double the
amount inherited by the half blood collaterals (inherit with a half hand).

 E.g.’s:

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Succession Lecture Notes (Term 1)

(1): X dies intestate and leaves assets to the value of R600 000. His wife (W) and his son
A predecease him; as did his mother (M) and his father (F). His mother’s son from a
previous marriage, D, and his father’s son from a previous marriage, E, also survive.

o There are no survivors in the 1st parentela.

o In the 2nd parentela, inheritance is per stirp with representation. X’s estate is
divided into two portions with R300 000 going to M and F’s separate estates.

 M’s estate will give R100 000 each to D, B and C.

 F’s estate will give R100 000 each to E, B and C.

o ∴ B and C will each get [R100 000+R100 000=R200 000] from each parents’ estate as
they will both inherit with a full and.

o D and E only get R100 000 each from their respective parent’s estates.

(2): X dies intestate and leaves assets to the value of R300 000. His wife (W) and his
sons A and B all predecease him. Both X’s parents, F and M, died before him as did his
brothers D and E. M’s sons G and H, from a previous marriage, survive.

o There are no survivors in the first parentela.

o In the second parentela, inheritance is per stirp with representation.

 The entire estate will go to G and H as there are no full descendants,

 G and H will ∴ each get R150 000.

Survivors in the 3rd Parentela – succession takes place per capita to the closest blood
relative. (there are no survivors in the 1st and 2nd parentelas we have to go to the 3rd parentela)

 E.g.’s

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Succession Lecture Notes (Term 1)

(1): X dies intestate and leaves an estate of R300 000. X was unmarried and had no
children. Both his parents (M and F) predecease him. His mother’s parents A and B also
predeceased him; as did their son E. E is survived by his children I and J (X’s cousins).
X’s father’s parents C and D predecease him as did their daughters G and H. G’s son
also predeceased X but he is survived by his son’s M and N. H’s daughter, L, also
survives X.

o There are no survivors in the 1st and 2nd parentelas


o So we go to the 3rd parentela; from the 3rd parentela inheritance is per capita to the
closest blood degree / relative. (you count the number of stirps to determine the degree of blood
relation)
 L=4°  will get R100 000
 I=4°  will get R100 000
 J=4°  will get R100 000
 M=5°  will not inherit anything
 N=5°  will not inherit anything.
(2): the same set of circumstances, but here X’s great grand mother, O was alive.
o As from the 3rd parentela inheritance is per capita to the closest blood relative, O
would inherit everything as she is a 3° relative.

What happens is the Deceased is not survived by ANY intestate heirs?

 If there are no heirs, then the executor of the deceased’s estate must hand over the
money to the Master of the High Court who will place it in the Guardian’s Fund.

 If the money is not claimed within 30 years then it is forfeited to the state i.t.o. s92 of
the Administration of Estates Act.

The Position of the Adopted Child in Intestate Succession

 The position of an adopted child is regulated by the Child Care Act 74 of 1983.
o S20 (1) sets out that the adopted child will terminate all rights and obligations with
its natural parents; while s20 (2) sets out that the child shall be deemed to be the
legitimate child of the adoptive parents.

 These sections are confirmed in s1 (4) (e) and s1 (5) of the Intestate Succession Act.
o Therefore the adopted child is regarded as the natural child of the adoptive parents
for all purposes.

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Succession Lecture Notes (Term 1)

 These provisions say that an adopted must be treated in the same way as the natural
child of the adopted parent.

o Additionally, all biological bonds with the natural parents of the adopted child are
cut; except where natural parent marries the adopted parent or where the natural
parent is also the adoptive parent (e.g. fathers of children born out of wedlock);
this is i.t.o. s1 (4) (e) (ii) of the Intestate Succession Act.

 E.g.’s:

(1): X dies intestate leaving an estate of R100 000. X was adopted by A and B. A died
the year before X; however, B as well as A and B’s natural son D are still alive; so are M
and P, X’s natural parents and their son C.

o X is the adopted child of A and B and according to s1 (4) (e) (ii) of the Intestate
Succession Act all his bonds with his biological parents are severed; and according
to s1 (4) (e) (i) of the Act, he will be deemed to be a descendant of his adoptive
parents.

o We go to the 2nd parentela where succession is according per stirp with


representation.

 B and D will therefore each get R50 000.

(2): X dies intestate, leaving assets to the value of R100 000. He is survived by his wife
W and his son C. His daughter D is adopted by A and B.

o X’s heirs are C and W b/c according to s1 (4) (e) (ii) of the Intestate Succession
Act, D severed all her bonds with her biological parents when she was adopted by A
and B.

o In the 1st parentela, inheritance is per stirp with representation.

 As W has X’s wife, i.t.o. s1 (1) (c) (i) of the Act, a spouse is entitled to a child’s
share or an amount which is set by the Minister or published in the Government
Gazette (currently R125 000); whichever is greater.

 W can ∴ take up to R125 000 or a child’s share which in this case is R50 000, in
which case C will also get R50 000.

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Succession Lecture Notes (Term 1)

(3): X dies intestate and leaves assets to the value of R100 000. His wife W predeceased
him as did his daughter A. A’s adopted son C is still alive.

o According to to s1 (4) (e) (i) of the Intestate Succession Act, C will be deemed to
be a descendant of his adoptive parent A.

o We ∴ go to the 1st paretela where inheritance is per stirp with representation.

 C will ∴ get the R100 000.

(4): X dies intestate and leaves assets to the value of R50 000. X’s adoptive parents A
and B predeceased him. However, his sister C, who was also adopted by A and B, is still
alive as are A and F, X’s natural parents.

o There are no survivors in the 1st parentela so we go to the 2nd parentela where
inheritance is per stirp with representation.

 The only survivor in the 2nd parental is C, who will get the entire R50 000.

 According to s1 (4) (e) (ii) of the Intestate Succession Act, X and C severed all
their bonds with their biological parents M and F when they were adopted by A
and B.

(5): X dies intestate and leaves assets to the value of R100 000. X’s mother and her
adoptive father A are still alive. X’s natural mother meets A and gets married. X’s
natural father F is still alive as is his son B.

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Succession Lecture Notes (Term 1)

o There are no survivors in the 1st parentela.

o We ∴ go to the 2nd parentela where inheritance is per strip with representation.

 In this parentela, M and A will inherit from X so they each get R50 000.

 Note that there is no set decision as to whether B can inherit from X. The
courts may or may not decide to make the equity decision; as the matter is
undecided, just say that M and A will inherit.

 X dies intestate and is survived by his ex-wife F; his current wife A; his daughter with F,
B and his sons with A, B and C. A adopts B.

o We go to the 1st parentela where inheritance is per stirp with representation.

 As there are 4 stirps, we divide the value of the estate by four.

The Position of the Extra-Marital Child in Intestate Succession:

 Initially according to the common law, an extra-marital child could not inherit from the
father or paternal relatives, and the father could not inherit from the child.

o An illegitimate child could inherit from the mother and maternal relatives, and the
mother or maternal relatives could inherit from the child.

 The position was changed by s1 (2) of the Intestate Succession Act which states that
notwithstanding the provisions of any law or the common law, but subject to the
provisions of this [Intestate Succession] Act and s5 (2) of the Children’s Status Act 82
of 1987, illegitimacy shall not affect the capacity of one blood relation to inherit the
intestate estate of another blood relation.

o These sections provide that for the purposes of intestate succession, an extra-
marital child is no longer disqualified from inheriting from either parent and must
be treated in the same way as a legitimate child born in wedlock.

o This section also applies to incestuous children.

Disqualification and Unworthiness for Intestate Succession:

 This is regulated by s1 (7) of the Intestate Succession Act and provides that if a person
is disqualified (for whatever reason) from being an heir of the intestate estate of the
deceased, or renounces his right to be such an heir, any benefit which he would have
received if he had not been so disqualified or had not so renounced his right shall [subject
to the provisions of subsection (6)] devolve as if he had died immediately before the death of
the deceased and, if applicable, as if he was not so disqualified.

o Note that initially an unworthy heir could not be represented.

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Succession Lecture Notes (Term 1)

 S1 (6) of the Intestate Succession Act is an exception to subsection (7). If a descendant


of a deceased (excluding a minor or mentally ill descendant) who, together with the surviving
spouse of the deceased, is entitled to a benefit from an intestate estate renounces his
right to receive such a benefit, such benefit shall vest in the surviving spouse and
not the descendants of the renouncing heir.

The Position of Same-sex Life Partners in Intestate Succession:

 Initially, only a married spouse could inherit i.t.o. the Intestate Succession Act. There
was no provision for either the same-sex life partner or the heterosexual life partner of
the deceased.

 Gory v Kolver NO 2007 (4) SA 97 (CC)

 Note that this case was decided after Minister of Home Affairs and Another v
Fourie and Others 2006 (3) BCLR 355 (CC) / the Gay-Marriage case.

 Gory and Brooks (the deceased) began a same-sex relationship in May 2003. By June
2004, they had bought property together and transferred it into K’s name; however,
they both lived in the property and contributed to the maintenance.

 It was clear that they had a common home and a joint household to which both
of them contributed.

 They agreed to have an agreement drawn up to record the applicant’s half


share in the property, but by the time of the deceased’s death, on
30 April 2005, they had not yet done so.

 In December 2004, Gory gave Brooks a box of gifts for his 43rd birthday. One of the
items in the box was a very expensive platinum ring; which the deceased said was
the applicant’s wedding band.

 At Brooks’ birthday party, Brooks and Gory announced that they were
permanent life partners.

 When Mr Brooks died intestate on 30 April 2005, and i.t.o. the Intestate Succession
Act his parents, (who were the second and third respondents in the court below) nominated the first
respondent Kolver to be appointed by the Master of the High Court, Pretoria as the
executor of their son’s estate.

 Kolver agreed that the Gory and the deceased had been same-sex partners but
denied that he was the intestate heir.

 Gory argues that he was the heir. He brought an application to the TPD challenging
the constitutionality of s1 (1) of the Intestate Succession Act which provides that
where a person dies intestate, and is survived by a spouse, but not by a descendant,
such spouse shall inherit the intestate estate.

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Succession Lecture Notes (Term 1)

 The basis of his claim was that s1 (1) of the Act conferred rights of intestate
succession on heterosexual spouses but not on permanent same-sex life
partners and as these partners are not [before Fourie] legally entitled to marry, this
amounted to discrimination on the listed ground of sexual orientation in terms
of s9 (3) of the Constitution, where discrimination in terms of s9 (5) is
presumed to be unfair unless the contrary is established.

 The HC said that Gory and Brooks had been in a permanent same-sex life
partnership and had undertaken reciprocal duties of support and b/c of this held
that s1 (1) of the Intestate Succession Act; which provided for the entitlement of
the surviving spouse to inherit; was unconstitutional is so far as it omitted the right
of a surviving same-sex life partner to inherit.

 The case went to the CC on appeal and the CC found that s1 (1) of the Intestate
Succession Act violated s9 (3) of the Constitution [the Equality Clause] and declared that
from 27 April 1994, s1 (1) of the Intestate Succession Act is to be read as though
the following words appear therein after the word ‘spouse’ wherever it appears in
the section: ‘or partner in a permanent same-sex life partnership in which the
partners have undertaken reciprocal duties of support.’

 Consider the following: this case was decided a couple of months before the Civil
Unions Act 17 of 2006 which allowed same-sex marriages came into force.

 As it stands now, both married and unmarried same-sex life partners can inherit
intestate; whereas, only married heterosexual partners can inherit intestate.

The Position in the Customary Law of Succession:

 Previously the principle of primogeniture was the foundation of customary law.


According to this principle, the oldest son succeeds the head of the family. This
principle excludes women and the line of succession is traced through the male line.
 ∴ i.t.o. customary law inheritance followed primogeniture and like Roman Law, the
universal heir steps into the deceased’s shoes and inherits all the liabilities, assets and
obligations.
o The philosophy behind this was that the heir was supposed to take on the role of the
provider of the family.
o Women were also seen as being unfit to inherit.
 This rule was initially developed at a primitive level; since then the majority of people
for whom customary law would apply to have become assimilated into an urban
culture, making it difficult to monitor what a customary heir does and ensure that he
fulfils his responsibilities.
o What often happens is that the heir takes his inheritance and then goes and
disappears, forgetting about all his obligations and liabilities.
 Do not forget that the Constitution extents the rights of equality to women and that
they have the rights not to be discriminated against.
 This whole issue went to court many times:
o Mthembu v Letsela and another [2000] 3 All SA 219 (A)
 The court held that customary law of succession and the principle of
primogeniture were constitutional due to the concomitant duty of support
placed on the heirs.
 This is an illustration of just how the courts have tried to balance these issues.

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Succession Lecture Notes (Term 1)

o Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) BCLR 1 (CC) (overturned
Mthembu v Letsela)
 An application was made on behalf of the two minor daughters of Mrs Bhe and
argued that s23 (10) (1) (c) and (e) of the Black Administration Act; Regulation
2E of the Regulation for the Administration and Redistribution of the Estates of
Deceased Blacks; as well as s1 (4) (b) of the Intestate Succession Act were
unconstitutional.
 It was argued that these sections were unconstitutional in that they
discriminated against the two minor daughters as they could not inherit
intestate from their father.
 The court held that s23 of the Black Administration Act ossified customary law
(i.e. it took customary law as it was and kept it in that same was so that it could not evolve and develop) . It
created a parallel system of succession for black Africans without considering
whether that was what they wanted.
 The court found that s23 was discriminatory and ∴ violated s9 of the
Constitution and was thus unconstitutional and the court struck it down.
 W.r.t. African customary succession based on primogeniture, the court found
that it discriminated against women and illegitimate children, it was unfair and
∴ unconstitutional and invalid.
 The court said that in the interim until customary law developed to be in line
with the Constitution, the Intestate Succession Act would apply to deceased
black estates; thus black deceased estates will be treated in the same way as
white intestate estates.
 Ngcobo J gave a dissenting judgement, he agreed with everything the majority
said except for the rule if Male Primogeniture.
 He said that we have a responsibility to develop customary law to be in line
with the Constitution; ∴ male primogeniture should not be struck down
but rather developed to make it constitutional.

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Succession Lecture Notes (Term 1)

UNIT 3: TESTAMENTARY CAPACITY:

Introduction:

 Before 1st January 1954, each province had their own set of laws regulating the
execution of wills.

o These laws will still apply to will executed before 1st January 1954

 Wills executed after 1954 are regulated by the Wills Act 57 of 1953 which codified all
the different laws from the different provinces. There is also the Law of Succession
Amendment Act 43 of 1992 which is applied to wills where the testator died after 1st
October 1992, irrespective of whether or not the will was executed before 1992.

3.1. Requirements for formal testamentary capacity:

 The overriding principle in testate succession is that the testator’s wishes must be
expressed.

o I.e. you must give effect to the testator’s free expression and hand-in-hand with
free expression goes capacity. You cannot have free expression if you do not have
capacity.

 The principles governing capacity are as follows:

1. The testator must have the necessary (formal) capacity to make will. He must have
formed the intention to make a will.

o Formal capacity is governed by s4 of the Will Act which states that the testator
must have formal capacity at the time of executing the will (i.e. on the day he signs
it).

 If the testator lacks the requisite testamentary capacity, the will is invalid ab
initio.

o Formal capacity means that the testator must be 16 years or older (in the past it
was 12 for males and 14 for females). A 16 year-old does not need the assistance of
a guardian to execute a will.

 However, anyone below 16 cannot execute a will, even with the assistance of a
guardian.

2. The testator must have the Mental Capacity to understand what it means to execute a
will.

o He must understand the nature and effect of executing a will.

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Succession Lecture Notes (Term 1)

o Factors which could impair mental capacity include:

a) Mental Illness

b) Physical Illness

c) Old Age (e.g. senility)

d) Intoxication (e.g. alcohol or drugs)

 TEST: did the testator understand the nature and effect of the will, courts will
decide this on a case by case basis.

 Courts have stated that even if you are below normal mental capacity, as long
as you understand the nature and effect of the act, you will be deemed to have
capacity.

o Tregea v Goddard 1939 AD 16

 The court held that even if the mental power of the testator is way below the
ordinary standard, if the person has sufficient intelligence to understand and
appreciate the nature and effect of the act, they have the capacity to execute
a will.

 The general assumption is that the testator will always have the capacity to
execute a will and the court will only look at the testator’s mental capacity
when it is challenged in court

 There is an EXCEPTION to this rule: If someone has been declared insane


then there is a presumption that the person lacked capacity. He thus has
the burden of proof to go to court to prove that he did have capacity.

 Note that when someone has been declared insane, they may have periods
of lucidity and could be deemed to have had capacity during one of those
intervals.
FACTS:

 The T was a very ill man who gave instructions to his attorney to draw up a will.
In his will he left half of his estate to his nurse. He then became even more ill.

 On the day that the T signed the will he was in and out of consciousness;
however, he signed the will and died a few hours later.

 The testator’s family disputed his mental capacity to institute a valid will.

 The court held that it was clear the T did have reduced mental capacity;
however, you can still institute a valid will if you understand the nature
and effect of the act.

 The court said that there was insufficient evidence to prove or disprove that
the testator had mental capacity.

 The presumption that operates in these circumstances is that the testator did
have capacity and the family failed to disprove this presumption.

o Essop v Mustapha and Essop 1988 (4) SA 213 (D)

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Succession Lecture Notes (Term 1)

 The testator was very ill and in extreme pain and unable to concentrate. He
was taking painkillers which may have had an effect on his mental capacity.

 During this time he instituted a will.

 The family disputed the will; however, the court accepted that the testator
understood the nature of the act but maybe not the effect of the act.

 The burden of proof was on the family who failed to discharge this onus.

 As a result the will was held to be valid.

3.2. Factors influencing free testamentary expression:

 There are three main factors which could influence free testamentary expression:
1. Undue Influence:
o In order to determine whether there has been undue influence; we should try and
determine whether there has been a displacement of intention (I.e. whether the will does
in fact contain the wishes / intention of the testator; or those of someone else).

o Spies v Smith 1957 (1) SA 539 (A)

 The testator was an intellectually impaired person who was under the
curatorship of his uncle.

 While the testator’s father was alive the testator made a will where he left
everything to his step-mother’s daughters.

 The testator’s father then died and his step-mother tried to have him put in an
institution. The testator and his uncle prevented this and the testator went to
go live with his uncle (his curator).

 The testator then made a new will where he left everything to his uncle’s
children.

 The testator then died and the step-mother went to court to dispute the
validity of the will on two grounds:

i. That the testator lacked the mental capacity to make a new will; and

ii. That the testator was unduly influenced by his uncle.

 The court went on to list some factors which must be considered when
determining undue influence:

a) The mental capacity of the testator

b) The testator’s ability to resist being influenced

c) The relationship between the testator and the person exercising the
alleged influence

d) The period between the execution of the will and the death of the testator

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Succession Lecture Notes (Term 1)

 The court then went on to say that the following are factors which will not
influence undue influence:

a) Flattery

b) Obsequiousness (trying to win affection by grovelling)


c) Professions of extra-ordinary love or respect

d) Meek tolerance of continual humiliation


e) Protracted subservience followed by a direct request for something
f) Well-founded accusations against proposed beneficiary

 Based on these considerations, the court held that the testator had not been
unduly influenced.

o Thirion v Die Meester en andere 2001 (4) SA 1078 (T)

 Note that when an estate falls open, the master of the HC is appointed to deal
with the deceased estate.

 The mother of the deceased alleged that her son had been unduly influenced by
his girlfriend to execute a will that favoured her above her parents.

 The testator originally had a will dated 4 February 1988 which named his
parents as his beneficiaries. On 27 November 1996, the deceased wrote a new
will by hand where he made his girlfriend the beneficiary.

 Two days after he wrote this new will, the deceased committed suicide.

 The deceased’s mother claimed that the girlfriend was immoral and that she
had merely been exploiting her son.

 The mother explained that her son had been fat, unpopular and under the
influence of alcohol and that he had written this new will under the undue
influence of the girlfriend.

 The court held that the onus of proving that a will is invalid due to undue
influence is on the person who alleges it has occurred (i.e. the mother).

 The test for undue influence was whether the testator’s will had been
replaced by that of another person and whether the testator was induced
to do something he would not normally have done.

 The court that in this case, the girlfriend may well have manipulated and
dominated the deceased but that there was no evidence that she had
attempted to influence his in the drafting of a new will / amending the old will.

 The girlfriend would not have known what his assets were or when he
would die.

 The onus of proving undue influence includes the onus of showing undue
influence by provoking / motivating the testator to do something specific.

 i.e. influencing the testator to make a bequest in the influencer’s favour.

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Succession Lecture Notes (Term 1)

 The court went on to say that in this case, the testator had done exactly what
he had wanted to do, and whether his reasons made sense or were morally
acceptable were not the main issues.

 In the absence of evidence on the deceased’s mental state before the


suicide made speculation about these matters improper.

 The court said that what was clear was that the testator had wanted to make
the applicant (the girlfriend) his heir, even if that was basically the last thing he
did.

2. Coercion and Duress:


o This occurs if someone is threatened or pressurised in some way to perform an act.

o The tests courts employ to determine coercion or duress is whether the wishes of
the testator have been changed by someone else.

 It is basically the same test as for undue influence; however, duress is less
subtle than undue influence and is therefore easier to prove.

o The onus of proof rests on the person who alleges that the will was made under
duress.

3. Mistake:
o This is an incorrect belief about the facts; and there are two kinds of mistake:

a) Animus Testandi / Material Mistake

 Here there is a mistake as to the nature / content of a will, e.g. a testator


believes that he is signing a contract when he is actually signing a will.

o This will will be invalid.

 Mistake as to the Contents of the Will: e.g. the testator thinks that he is
leaving his car to his son, when he is actually leaving it to his daughter.
This goes to the Testator’s intention and is different from a mistake ex
persona in Contract Law which is a mistake in motive.

b) Mistake in Motive

 In such a situation the testator knows that he is making a will but his
reasons behind the bequest are mistaken: e.g. the Testator has a will and
leaves everything to his daughter as he thinks that his son is dead; his
reasons for the will are wrong.

o Mistakes in motive are irrelevant as far as validity of the will is


concerned.

 Most academics are of the opinion that such a will should be invalid,
however, some courts have held will with mistakes in motive to be invalid.

o VOET: says that the test should be as follows – if the testator would
have made a different bequest had known the truth, then the will
should be invalid.

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Succession Lecture Notes (Term 1)

 The burden of proof when dealing with Undue Influence, Duress, Coercion or Mistake
rests on the person alleging it; if they fail to prove this, then the will will be valid.

3.3. The Delegation of Testamentary Powers:

 The general rule is that the testator will indicate who his beneficiaries will be in his
will.

o I.e. he will say who will inherit what.

 Sometimes testators will instruct others to decide who the beneficiaries will be; i.e.
where the testator delegates testamentary to another person.

 The General rule is that delegation of testamentary power in NOT allowed, except in
the following circumstances:

a) Where a charitable trust is created by the will.


o The testator says that his estate is to be left in a trust and that the beneficiaries
will be people who meet certain criteria.

b) If you leave the power to appoint beneficiaries to Trustees, and these Trustees have a
duty to appoint the beneficiaries as well as having a beneficial interest in that trust
[i.e. the trustee must derive some sort of benefit from the trust].

o The question arises when only one of those requirements are met; e.g. if a trustee
has a duty to appoint beneficiaries from a certain class of people who meet specific
criteria, but the trustee does not have a beneficial interest in the trust.

o Braun v Blann and Botha 1984 (2) SA 550 (A)

 A testator left his estate in a trust and the trustees had a duty to appoint
beneficiaries from the testator’s descendants. The trustees, however, were not
deriving any benefits from the trust itself.

 This went to court to determine whether this delegation of testamentary power


was valid. The court said that the trustees had to have a special / specific
power where they were required to choose beneficiaries from a specific class.

 They could not just choose beneficiaries from wherever.

 The court held that where such a duty exists, the delegation of testamentary
power is valid, irrespective of whether the trustees derived a benefit.

o Ferreira v Smit 1981 (3) SA 1264 (A)

 This case outlined exactly what the requirements were for valid testamentary
delegation

a) The intention to exercise the power of appointment

b) It must be in accordance with the provisions of the will.

 What if there is a failure to exercise the power of appointment validly, e.g.


appointing trustees?

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Succession Lecture Notes (Term 1)

 The effect depends on the actual provisions of the will: the testator may
have foreseen that this may happen and made substitutions in his will; if
so, then these substitutions will be put into effect.

o E.g. A provision in a will may say that X will appoint beneficiaries and
if X fails to do so then the testator’s daughter will inherit.

 If there is no such provision in the will, then you will look at whether the
testator identified a specific class of beneficiaries; and if so, then that
class of beneficiaries will inherit.

o E.g. the court will look at the class of beneficiaries given and will then
distribute the inheritance amongst members of that class.

 If there is a general power of appointment (i.e. where no specific class of


beneficiaries is identified) but the trustee has a beneficial interest in the
trust, then the trustee’s intestate heirs will inherit.

o E.g. A fiduciary / usufruct: X leaves compensation to his wife and the


wife is to enjoy an income from the trust and then appoint
beneficiaries; if she fails to do so, then the wife’s intestate heirs will
inherit.

UNIT 4: FORMALITIES FOR THE EXECUTION AND AMENDMENT OF WILLS:

4.1. Capacity to Sign as a Witness to a Will:

 Anyone over the age of 14 can act as a witness to a will. This witness must be
competent to give evidence in court; i.e. he must be capable of understanding the
difference between truth and fantasy.

o Legally, there is no bar on a blind person to act as a witness; however, such a


person would have difficulty in reading the will.

 Witnessed to wills typically cannot inherit; they can inherit if they go to court and
prove a claim, and even then they will only get a portion.

o This is done to prevent fraud. S 4 (a) if the Wills Act says that as a witness, you
cannot inherit.

4.2. Formalities for Execution of Wills:

 These are incredibly important and the courts are extremely strict when dealing with
the requirements for a will.

Wills and Testamentary Writing

 S 2 (1) (a) of the Will Act (pg 44 of the Textbook) sets out the requirements for a valid will:
o The Will must be in writing; this may be in handwriting, typed or printed.

o The testator’s signature has to be at the end of the will [S 2(1) (a) (i)]

 CRONJE: says that there is nothing that prevents a will from being a
[an academic]
video recording. The problem would arise on where you would sign it.

26
Succession Lecture Notes (Term 1)

o It can be seen that technology has evolved while the Wills Act had not.
o The contents of the will must deal with the disposal of the estate after death. The
will must specify that the disposal will only take place after the death of the
testator.

 If this provision is not there, then what you are dealing with is a contract and
not a will.

 The Incorporation of Separate Documents:

o These separate documents must comply with the formalities of a will; e.g. see
attached map, then the map must comply with the formalities; or see annexure,
then that annexure must comply as well.

o Any form of testamentary writing (e.g. a letter) must comply with the formalities of
a will.

o Ex parte Estate Davies 1957 (3) SA 471 (N)

 The Testator’s will contained a bequest to an unnamed person who was to be


named later in a letter given to the testator’s attorney.

 The issue before the court was whether it should that letter as part of the will:

 The court said that the letter contained dispositions and was therefore
evidence of Testamentary Writing; however, the letter had to comply with
the same formalities as a will. Since this had not been done, the letter
could not be accepted.

Meaning of Signing and Signature

 What makes the execution of a will valid?

 S 2 (1) (a) (i) of the Wills Act: the will must be signed by or on behalf of a testator.
o Someone who signs on behalf of a testator is known as an amanuensis / a literary
assistant.

 S 2 (1) (a) (ii): The will needs to be signed by two competent witnesses on the last
page, acknowledging that the signature was made by the testator / amanuensis. This
must be in time and place after the testator / amanuensis.

o Witnesses must be 14 year or older and only have to sign anywhere on the last page.
o Witnesses may also sign by simply initialling. Witnesses must sign in time and place
after the testator.

o Witnesses must be competent to give evidence in court; they must know the
difference between fantasy and truth.

 S 2 (1) (a) (iii): All persons signing the will must do so in each others presence.
o The witnesses and the Commissioner (if applicable) are signing in proof that it was the
testator who signed; not as to the contents of the will.

27
Succession Lecture Notes (Term 1)

o There is one exception to the requirement that all the witnesses must sign in each
other’s presence: this is where the Testator signs before everyone else, although he
does still need to affirm that it was his signature.

 S 2 (1) (a) (iv): the Testator must sign at the end of the will and on every page. Only
the testator can sign by way of a mark, an amanuensis cannot.

o When dealing with a mark or an amanuensis, you need a certificate from a


Commissioner of Oaths and the Commissioner must also sign on every single page.

 S 2 (1) (a) (v): If the testator signs the will by way of a mark, a Commissioner of Oaths
is required to attach a certificate, showing that:

1. He is satisfied as to the identity of the testator, and


2. He is satisfied the document is the will of the testator
o The Commissioner must sign all pages (this may be done anywhere on the page) of
the will; except for page that the certificate is attached to. The Certificate may be
attached to any page of the will

o S 2 (1) (a) (v) (aa): If the will is signed by way of a mark or on behalf of the
testator, it must be signed in the presence of the Commissioner of Oaths, who must
attach the certificate as soon as possible after the will was signed.

o S 2 (1) (a) (v) (bb): If the testator dies after the will has been signed, but before
the Commissioner of Oaths has made and attached the certificate, then the
SUMMARY Commissioner must do so as soon as possible and the will remains valid.

 You need to know exactly how and where the parties must sign:

o The Testator must sign at the end of the will (i.e. where the writing ends) and on
every page.

o The witnesses can sign anywhere on the last page

o The Commissioner must sign every page, but he can sign anywhere on that page.

 What Constitutes a Signature?


o Ex parte Goldman v Kalmer Freda NO 1965 (1) SA 464 (W)

 The Testator name was Freda and she executed a will but made a sign looking
like ‘Ƒ.’

 The problem was that if this was a signature, then she would not need a
Commissioner of Oaths, however, if it was a mark then she would.

 The attorney dealing with the will thought that it was a mark and thus got a
Commissioner to sign and attach a certificate [i.t.o. S 2 (1) (a) (v) (bb)].

 This certificate turned out to be invalid.

 The court held that it was the intention of the testator for the ‘Ƒ’ to constitute
a signature. It thus held that the symbol was indeed a signature and that the
will was valid as it did not require the [invalid] certificate.

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Succession Lecture Notes (Term 1)

o Jhajbhai v The Master 1971 (2) SA 370 (D) [note that in 1971 witnesses had to sign on every page of
the will]

 There was a multi-page will and the witnesses signed every page except for the
last one where they printed out their names.

 The court asked whether the signatures were the actual signatures of the
witnesses; or whether the printed forms of their names were the signatures.

 To answer this, the court looked at the intention of the witnesses to see
whether it was their intention to sign.

 The court held that the intention of the witnesses was to sign and that any
form of their name (printed or signature) would constitute a signature i.t.o.
the Act and thus any form of their name would be valid.

o Harpur NO v Govindamall and Another 1993 (4) SA 751 (A)

 In this case a will consisted of two pages: the first page had been signed by the
testator in 3 places; the witnesses had then initialled each of these signatures
but they had not signed anywhere on the page.

 On the second page, both the testator and the witnesses had signed.

 The question facing the court was whether they could accept the initials as
signatures for the purposes of the Wills Act.

 The court held that the main reason that the Act required a signature was
to prevent fraud as each signature is supposed to be unique.

 I.e. the court a quo had basically chosen form over intention; unlike the other
cases.

 Note that the Wills Act now allows initials as signatures for witnesses.

Placement of Signature

 What does the ‘last line’ or ‘end of’ the will mean?
o Kidwell v The Master 1983 (1) SA 509 (E)

 In this case the Testator had signed 17 cm below the attestation clause, i.e. the
clause confirming the validity of the will: e.g. Signed in Johannesburg on the
15th of March 2008, etc.

 This clause is no longer an essential requirement.


 The witnesses then signed 13 cm below the attestation clause.

 The court had to determine whether this was valid and complied with the
provisions of the Act.

 The court held that the ‘end of a will’ meant as close as possible at the end of
the writing.

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Succession Lecture Notes (Term 1)

 The witnesses are then supposed to sign AFTER the testator in both place
and time [S 2 (1) (a) (ii)],

 In this case the testator had signed too far below and therefore the will was
held to be invalid.

Certificate by the Commissioner of Oaths

 The witnesses that sign the will must be the same ones that are used to witness the wil
throughout.

o Note that the witnesses only need to sign the will on the last page

o The witnesses also need to sign in the presence of the testator.

 The witnesses will sign after the testator has signed both in place and time, i.e.
after the testator has physically the will and below the testator’s signature.
The Wills Act does not mention this requirement, although it is done in
practice.

 If the testator signs in the presence of witnesses that are different from the ones who
signed the will, then it will be invalid.

 A commissioner of oaths is needed when an amanuensis signs on behalf of the testator,


or when the testator signs by way of a mark.

o The commissioner must attach a certificate to the will which has to say that:

a) He is satisfied as to the identity of the testator

b) He is satisfied the that it is the testator’s signature on the will and that the
document is indeed a will

c) The Commissioner is signing in his capacity as a commissioner of oaths.


o Radley v Stopforth 1977 (2) SA 516 (A)

 In this case the testator had signed by way of a mark and therefore needed a
Commissioner of Oaths to sign and attach a certificate in terms of s2 (1) (a) (v)

 A Commissioner did sign the will; however, he did so in his capacity as an


Administrative Official.

 The court held that the will was invalid as it needed to be signed by the
commissioner in his capacity as a Commissioner of Oaths.

o Jeffery v The Master 1990 (4) SA 759 (N)

 Note: When someone becomes an admitted attorney, they will automatically


become a Commissioner of Oaths.

 In this case, an attorney acted as a commissioner of oaths by signed in his


capacity as an attorney.

 The Court held that the will was invalid because the attorney should have
signed in his capacity as a commissioner of oaths.

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Succession Lecture Notes (Term 1)

 This case had bees criticised as the Wills Act does not specifically state that
the commissioner must sign in his capacity as a commissioner of oaths.

o In re Jennet 1976 (1) SA 580 (A)

 In this case the testator signed by way of a mark and therefore needed a
commissioner of oaths to sign the will and attach a certificate.

 The commissioner did attached a certificate but had written out the following
words: ‘I Llewellyn, do hereby certify that I was present at the execution of
this Will and satisfy myself as to the identity of the testator and testator’s
identity number.’

 The commissioner did not mention his capacity as a commissioner of oaths.

 The court held that the certificate complied with the requirements of the Act
because the testator had signed, etc. just because the commissioner did not
specify his capacity was not sufficient cause to declare the will invalid.

 The Ac only required that all the important stuff that was there was there.

o Tshabalala v Tshabalala 1980 (1) SA 134 (O)

 In this was there was a will which consisted of one page and the text of the will
ended 13.25cm from the bottom of the page. The contents of the will were
followed by the thumbprint of the testator [this constitutes a mark and thus a commissioner
was needed] and the signatures of the witnesses.

 A second page was attached to the will and all this contained was a certificate
attached by the commissioner.

 The commissioner failed to sign the first page [i.e. the actual will]; he had only
signed the certificate, and the testator had not placed his thumbprint on
the page with the certificate.

 The applicant sought an order that as the commissioner had not signed the first
page; then the will should be declared invalid.

 The problem with the will was that there was no link between the will and
the certificate; they could easily have come from somewhere else.

 The court held that the will was invalid and said that where you have a will
consisting of more than one page, then every single page has to be signed by
the commissioner of oaths. This requirement also needs to be complied with
before the testator dies.

 The certificate itself needs to be done as soon as possible after the testator has
signed; however, the certificate may be signed and attached after the
testator’s death provided that the commissioner was present when the testator
signed the will.

 The period between the signing of the will and the attachment of the
certificate must not be unreasonably long.

o This time period does not apply to the rectification or variation of the
certificate.

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Succession Lecture Notes (Term 1)

 You are not allowed to rectify or vary the certificate after the testator’s
death.

o In the Radley v Stopforth and In re Jennet cases, the court was asked
to rectify the certificate after the death of the testator and the court
said no.

 The certificate may be attached to any page of the will, although in practice it
is attached to the last page.

Formalities for the Alteration of a Will

 To alter an existing will, either by inserting or deleting words; it is imperative that you
distinguish between alterations made prior to and those made after the execution of
the will.

o I.e. alterations made prior and after the signing of the will.

 If you are dealing with alterations made prior to execution, then no formalities are
required. If you are dealing with alterations made after execution, then the alterations
need to comply with the forms set out in s 2 (1) (b) of the Wills Act.

 A problem would arise if you had a will with alterations that the testator signed and
subsequently died; how would you go about proving that the alterations were made
prior to the executions of the will.

o In such a case you would bring evidence to prove this in court.

 What exactly are alterations:

1. What do we mean by amendments?

 An amendment includes a deletion [i.e. delete a word], or an addition [i.e. add a word],
or an alteration [e.g. changing the numbering of the clauses] or interlineations [which are
physical changes to the will by adding or taking away something, etc].

2. What do we mean by deletions?

 Here we refer to the deletion of a word or cancelling a whole paragraph [e.g. by


putting a line through it] or by obliteration [e.g. by taking scissors and cutting out a word].

o Note that here we are not talking about a revocation where the entire will
or the majority of it is cancelled.

 What are the post execution requirements:

1. These are the same as those required when executing a will. The Testator will sign,
then the witnesses will sign and the commissioner will sign [if there is an amanuensis or a
mark].

 The signatures must be as close as possible to the alteration. If the signatures


cannot be next to the actual alteration, then there must be some sort of
indication such as an asterisk.

2. The testator must have has the intention to alter the clause. If there was no
intention to change the will, then you will read it as it was originally.

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Succession Lecture Notes (Term 1)

 What if part of the will was obliterated [cut out or burnt]?


o In practice you should keep original copies, otherwise evidence is going to
have to be led and that is not always possible.

 A testator may have also amended or altered the will based upon a supposition;
e.g the testator was going to get married to X in 6 months time. As a result he
makes X his sole beneficiary on the basis that she will become his future wife.

o If the testator does not marry X then the amendment will be ignored. This
will only occur if it is clear that it was a supposition or a condition.

o This concept is known as the Doctrine of Relative Revocation.

 As it is difficult to prove whether an amendment was made prior to or after the


execution of the will, the presumption is that the amendment was done post-
execution and it is up to the person alleging to prove that it was done pre-
execution.

4.3. Courts’ Power to Condone Non-compliance with Formalities for the Execution of
Wills:

 There are several grounds for a will to be declared invalid:

1. Where the testator lacks testamentary capacity

2. Where the witnesses lack capacity

 E.g. where they are below the age of 14.

3. Where there is no animus testandi


 There is no intention to make a will or and conditions / suppositions are not
met.

4. Where there is non-compliance with formalities.

 There are certain circumstances where a court will declare an invalid will to be valid.

o Note that you must distinguish between an invalid will and an inoperable will.

 The circumstances which will cause a will to be inoperable are when the will is
valid; however, it is impossible to carry out the provisions
(for all intents and purposes)
in the will: e.g. leaving your farm to the Man-in-the-Moon.

 Where the will is inoperable, it will be treated as if it was invalid. It will fall
away and the estate will be devolved Intestate.

 With invalidity, you have to see what the court says: for instance, part of the will may
be declared to be valid and the other part could be valid.

o To decide this, the court will apply the Non-Essential, Non-Dispositional Test.

 In this test the court will look at whether the ‘invalid’ pages contain any
essential provisions or provisions with dispositions (i.e. provisions setting out bequest to be
made).

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Succession Lecture Notes (Term 1)

 Where the invalid pages do not contain any essential information, the court can
simply declare those pages to be invalid and the rest of the will will be held to
be valid.

o Ex parte Aufrichtig 1979 (4) SA 426 (D)

 In this case a will consisted of 18 pages. All the pages, except for the last one
which lacked the witnesses’ signatures, had been properly executed.

 The issue before the court was whether the rest of the will (i.e. the other 17 pages)
could be declared to be valid.

 The court applied the Non-Essential, Non-Dispositional Test and looked


at the page that did not contain the witnesses’ signatures and saw that this
page only contained and interpretation clause and an attestation clause.

 The court held that the clauses contained on the last page were not essential
clauses as they did not contain any essential information and thus held that
only the last page would be invalid and the rest of the will would be valid.

o Wehmeyer v Nel 1976 (4) SA 966 (W)

 In this case the will consisted of two pages: the first one contained a disposition
but it had not been signed; the second page had a provision appointing a
guardian for the testator’s children, and this page had been signed.

 The issue before the court was whether could be declared to be valid.

 The second page contained a disposition; this was because appointing a


guardian is a disposition.

 The court held that as there was disposition on both page one and two, it was
impossible to separate the two pages and as a result both pages were declared
to be invalid.

The Presumption of Validity

 If you look at a will and in the face of it, it looks valid then it will be presumed to be
valid:

o Thaker v Naran 1993 (4) SA 665 (N)

 In this case there was a will which seemed to have been perfectly executed
because on the face of it all the formalities seemed to have been complied
with.

 The Testator’s children, however, alleged that the witnesses had not signed in
each other’s presence.

 This is something that you cannot deduce simply by looking at the will.

 The court said that the onus was on the onus was on the children to prove that
the formalities had not been complied with and that the evidence that they had
brought to court was insufficient to persuade the court that the formalities had
not been complied with.

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Succession Lecture Notes (Term 1)

 As there is a presumption of validity which could not be rebutted on the


evidence put forth by the children, the will was declared valid.

 Apart from using the Non-Essential, Non-Dispositional Test, a court can also condone
a will that does not complied with the required formalities in terms of s 2(3) of the
Wills Act: If a court is satisfied that a document or the amendment of a document drafted or executed by a person
who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court
shall order the Master [of the High Court] to accept that document, or that document as amended … as a will, although
it does not comply with all the formalities for the execution or amendment of wills.

NOTE: o S 2(3) was only inserted by the Law of Succession Amendment Act 43 of 1992 and
thus will only apply to will executed after 1992.

o The Requirements needed for s2(3) to apply:

a) There must be a document or an amendment of a document (i.e. the will must


be written).

b) This document must be written by a person who has since died.

c) There must be non-compliance with the formalities.

d) The document must be intended to be a will.

o It is important to note that the document or the amended documents need not be
the originals; they may be duplicate copies of the will. These copies, however, do
have to be signed by the testator, although he does not have to sign every page.

What do ‘Drafted’ / ‘Executed’ mean?

 There are two approaches to this:

1. The Strict Approach

o Olivier v Die Meester en Andere 1997 (1) SA 836 (T)

 This case said that in order for s2(3) to apply, the document had to have been
written by the testator himself; it was not sufficient for an Attorney of a typist
to have written it.

o Webster v Master 1996 (1) SA 34 (D) (even more strict)

 Here the court held that had to have been hand written by the testator in order
for a court to condone a will that does not comply with s 2(3).

2. The Flexible Approach

o Back and others NNO v Master of the Supreme Court [1996] 2 All SA 161 (C)

 In this case the court held that ‘Drafted’ meant words that were written by
someone else; they do not have to be in the testator’s own words as long as
they are his words that have been written by someone else.

 The court also held that it is sufficient for the words to have been written by
someone else as long as the testator approves of the words; he makes them his
own by approval.

o Logue and Another v The Master and Others 1995 (1) SA 199 (N)

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Succession Lecture Notes (Term 1)

 In this case the testator executed a will in 1986. The will was valid but in it he
had disinherited the applicant, Logue; who was one of the testator’s children.

 The testator suffered a stroke and while he was recovering Logue and the
testator became close again and remained on good terms until the testator
died.

 After the death, a second will is found which named Logue as a beneficiary;
however, this will failed to comply with all the required formalities.

 The will had been handwritten by the testator but it had been signed by his
with a different pen. It had also not been witnessed and the testator had
failed to sign the first page. I.e. there was a lot of non-compliance with the
formalities.

 The applicant applied to the court to condone this lack of compliance in terms
of s 2(3).

 The court looked at the issue of the different pen and said that the testator had
obviously intended to have the document typed but then decided to sign it.

 It was the testator’s intention that this document be his will and would
revoke the 1986 will.

 Note that all the above wills were High Court decisions and not Appellate Division
decisions

o Bekker v Naude 2003 (5) SA 173 (SCA)

 In this case a couple went to a bank to have a will executed. They explained to
the bank employee (a Mrs S) what they wanted in the will.

 The will was to be a joint-will and Mrs S had taken down notes on what the
couple had instructed her to do.

 Mrs S sent the notes to the bank’s Head Office where the will was drafted
taking into account all the instruction that the couple had given Mrs S.

 The bank, once it had drafted the will, sent it through to the couple for them
to sign which they failed to do before the testator died.

 The appellant, Bekker who was the surviving spouse, instituted an action in
terms of s 2(3) of the Wills Act, asking for an order declaring that the will be
declared to be valid and ordering that the Master put the will into operation.
The Appellant lost in the court a quo and the case went on appeal.

 The SCA said that in s 2(3), the word ‘drafted’ could only be interpreted in the
strict meaning of a personal act; i.e. an act done by the testator himself.

 Giving instructions to the bank and having them draft the will did not fall
un line with the word ‘drafted’ in s 2(3) and therefore the will could not be
condoned in terms of s 2 (3) and the appeal was dismissed.

o Van Wetten v Bosch 2004 (1) SA 348 (SCA)

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Succession Lecture Notes (Term 1)

 In this case the testator discovered that his wife had been unfaithful to him. He
wrote a document which made dispositions and sealed it in an envelope that
was addressed to one of his friends, a Mr van der Westhuizen, and wrote that
the envelope should only be opened in the event of his death. This envelope
also contained other envelopes addressed to the testator’s wife and one of his
son’s.

 The testator since reconciled with his wife but on 14 February 2000 he
committed suicide.

 The central issue in this appeal is whether Bosch (the testator) intended the
document that he had written in September 1997 to be his final will or merely
instructions to an attorney to draft a will.

 If the former, then in terms of section 2(3) of the Wills Act the Master of
the High Court would be ordered to accept the document as a valid will.

 The court looked at s 2(3) and said that the two requirements were:
a) That the document must have been drafted or executed by the person who
had subsequently died, and

b) That the document must have been intended by the deceased to have been
his/her Will. The Court was concerned primarily with the latter
requirement.

 The court mainly concerned itself with the INTENTION requirement and said
that to determine what the testator’s intention was, they would has to examine
the wording of the document as well as the surrounding circumstances.

 The court held that at the time the testator write the document he was
contemplating suicide. The court also took into account the fact that
testator had given instructions that the envelope only be opened upon his
death; and so the document could not be seen as being instructions to an
attorney.

 The court concluded that the document was intended to be a valid will and as a
result the will was condoned in terms of s 2(3) and was thus declared to be
valid.

 Under s 2(3), even non-compliance with all the formalities may still allow a will
to be condoned if the document was intended to be a will; thus instructions to
an attorney will not be condoned.

o Anderson & Wagner NNO v Master 1996 (3) SA 779 (C)

 In this case the testator had a will in which he left his seaside property to a
trust. He decided that he wanted to change this so he sent a letter to his
attorney which included a new clause saying that he wanted the seaside
property to be sold and the proceeds given to his children.

 Before the attorney could act upon the testator’s instructions, the testator
died

 An application was brought to court asking that the letter to the attorney be
declared as part of the will in terms of s 2(3).

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Succession Lecture Notes (Term 1)

 The court held that the letter was to be seen as instructions to an attorney
and that it was clear that the testator did not intend the letter to his
attorney to be his will and thus could not be condoned under s 2(3) as it did
not meet the intention requirement.

 The idea behind this policy is that people are not very careful when they write
letters (e.g. they seldom proof read them and may write things that they do not
mean to) and so to allow letters to form part of a will would open the way for
fraud.

o Webster v Master 1996 (1) SA 34 (D)

 In this case the testator asked his attorney to draft a will, which the attorney
did.

 When the attorney took the will to the testator for approval, the testator asked
for another clause to be inserted. The testator died before this could be done.

 Thus there was an unsigned drafted will which had not been signed.

 The court looked at the first draft of the will and said that the document was
not intended by the testator to be a will as it did not contain the extra clause
that the testator had wanted and as a result could only be seen as being a part
of his will.

 Since the document did not contain the testator’s full wishes it did not portray
the testator’s intention and thus could not be condoned in terms of s 2(3).

o Ex parte Laxton [1998] 1 All SA 289 (N) [this case had a similar situation to Webster]

 In this case the testator instructed his attorney to draft a will; once drafted,
the attorney took the will to the testator for approval.

 The testator wanted a new clause inserted into the will; however, in this case
the attorney wrote the new clause by hand on the will and then sent the will,
with the addition, to be retyped.

 Before the testator could sign the retyped will, he died.


 An application was made to the court to have the draft will condoned in terms
of s 2(3).

 The court held that the draft was intended to be the will of the testator
because the testator had approved the handwritten document and thus the
draft could be condoned under s 2(3).

 This case serves as authority that you should follow the Flexible Approach of
the Back Case when applying s 2(3) and that the testator’s wishes are very
important.

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Succession Lecture Notes (Term 1)

UNIT 5: REVOCATION AND REVIVAL OF WILLS:

5.1. Express and Tacit Revocation:

 Revocation deals with the cancelling of an entire will and anyone has Freedom of
Revocation.

o A testator will always have the power to change or amend a will and no testator can
be forced to agree NOT to cancel his will.

 You can have either Partial or Full Revocation of a will:

o Partial Revocation is where you only cancel a particular clause or words.

 If the partial revocation is done via amendment or alteration, then those


formalities will have to be complied with.

o Full Revocation is where the testator revokes the entire will.

 When you are dealing with full revocation, then formalities are not required.

 You also have Tacit Revocation: this is where the Testator by his / her actions or
behaviour indicates that he / she has the intention to revoke the will.

o This intention to revoke is known as Animus Revocandi.

 Then you can have Express Revocation: this is where the testator expresses his / her
intention to revoke the will

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Succession Lecture Notes (Term 1)

Express Revocation:

 This can be done in the following ways:

1. Where the Testator executes a new will and he puts in clause that expressly revokes
any previous will.

 In such a case, the new will has to be valid in order to revoke the previous
will(s); however, the main requirement is that there must be animus revocandi
on the part of the testator, i.e. the intention to revoke.

 If the subsequent will is invalid the revocation will be invalid.

2. The revocation may also take place via a Formal Revocatory Document: this means
that instead of a new will, there may just be a separate document which revokes
the previous will.

 For this separate document to be valid, it must comply with all the required
formalities for the execution of a will.

 This document may take the form of: a codicil, an ANC, etc; and does need to
be a testamentary document.

3. You can also have Common-Law revocation by destruction: here you simply get the
will and tear it up or cross it out.

 This method of revocation does not have any formalities; it can be done by the
testator or by someone acting on behalf of the testator.

o I.e. you do need animus revocandi.

 You can have either Physical Destruction (actual burning / tearing up of the will) or
Symbolic Destruction (writing ‘cancelled’, erasing the signatures, drawing lines through the will) of
the will

o You can destroy the original will or even a duplicate / photocopy of the
will.

• Marais v The Master 1984 (4) SA 288 (D)

 In this case the Testator only had a copy of the will as the original was with
his attorney. The testator then proceeded to revoke the will by writing
‘cancelled’ on all 13 pages.

 The issue before the court was whether the destruction of a copy of
the will is sufficient for revocation.

 The court held that all that the testator had in his possession was a copy of
his will and by writing ‘cancelled’ on the copy, he had demonstrated his
intention to revoke and this was therefore a valid revocation.

 There are a number of presumptions that operate in revocation because of the dies and
you cannot find the will; then how can prove that it was revoked:

1. There is the presumption of animus revocandi:

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Succession Lecture Notes (Term 1)

 If it is clear that the testator destroyed the will, then animus revocandi is
presumed to be present.

• E.g. if you believe that it was an accidental destruction, then you must
bring evidence to prove this.

2. If it is known that the will was in the possession of the testator and it cannot be
found; then it is presumed that the testator destroyed it with intention.

o These presumptions will only apply to the original or duplicate original copy of the
will; it does not apply to photocopies. If the testator is in possession of duplicate
original and his attorney or someone else has the original; if the testator destroys
his copy, then this is sufficient for revocation.

o Senekal NO v Meyer 1975 (3) SA 372 (T)

 This case is authority for the fact that the destruction of photocopies do not
bring about the presumptions into operation.

 Here you will have to bring evidence to prove that the copy was destroyed
with the intention to revoke, this will not be assumed.

o For example: you could have a will which had a clause saying that ‘I leave my farm
to Andy.

o When the testator dies, the name ‘Andy’ had been Tipexed out and the name
‘Brian’ put in.

 Here we are dealing with partial revocation and we therefore need the
testator’s signature and two witnesses.

 If in the same scenario, the testator simply put a line through the clause and
did not add any other dispositions, then we are dealing with revocation:

• No formalities are needed but you do need to prove intention.

• If this was also done on the duplicate copy / original, then the
presumptions might apply.

 It is vitally important to note that you cannot have an oral revocation; any such
revocation would be invalid and the reason for this is that it could be fraudulent.

 S 2A of the Wills Act gives the court the power to declare a revoked will valid if there
are problems with the actual revocation and if the court is convinced that the testator
intended to revoke fully or partially; this can be done in three ways: [you only need to prove
one of the requirements]

(a) If the testator made a written indication on his will


(b) If the testator performed any other act with regard to his will which is apparent
from the face of the will

(c) If the testator drafted another document or before his death caused such document
to be drafted [this is a very clumsy sounding provision]

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Succession Lecture Notes (Term 1)

 The idea is to look at intention; you ask whether this revocation, by either doing
something or writing something, was apparent from the will itself.

o Webster v Master 1996 (1) SA 34 (D)

 Here there was an application that was made to court to have part of a
previous will revoked.

 In this case the testator had a previous will where he left everything to his
wife. He later divorced his wife and he deleted the clause in his will leaving
everything to his [now ex-]wife.

 The testator did not comply with any formalities; importantly, he also did
this deletion on a copy of his will.

 The application was made to condone the revocation in terms of s 2A.

 The court held that this was indeed an instance where s 2A of the Wills Act
should be applied and it therefore had to look at the requirements of s 2A.

 The court held that there was no written indication on the will and also
that the deletion had occurred on a copy.

 The court said that even though the revocation was not on a copy, that the
testator had the intention to revoke the will as there was the physical
scratching out of the clause; s 2A, therefore, did apply.

 It was thus held that the revocation was valid and that the ex-wife could not
inherit.

Tacit Revocation:

 Here you look at the actions of the testator and the surrounding circumstances to
determine if there was a revocation; it can also take various forms:

1. Subsequent Revocation by a Subsequent Irreconcilable / Conflicting Will:


o Here you are dealing with a situation where you have two valid wills that contradict
each other (i.e. two wills that cannot be reconciled).

 If the will do reconcile, then you can give effect to both of them.

 Where the wills contradict each other, you then assume that there was animus
revocandi and that the second will was intended to revoke the first.

2. Ademption:
o This is a situation where you have voluntary alienation of the contents of the will by
testator.

 E.g. in his will, the testator leaves his farm to Andy; however, a year done the
line, the testator sells the farm.

o It is presumed that by alienating the contents of the will, the testator intended to
revoke that particular disposition.

 Note that here we are dealing with legatees.

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Succession Lecture Notes (Term 1)

 In is essential that the selling of the contents of the will (e.g. the farm) must
be voluntary.

• If the testator is declared insolvent and creditors take the item, then this
alienation will not be voluntary and he will be entitled to the monetary
value of the item.

3. Tacit Revocation by Operation of Law:


o This is where the will automatically lapses due to the law and not by an act of the
testator. This is basically looking at where circumstances have changed and the will
is no longer suitable; for example:

a) A Subsequent Marriage:

 NOTE: This only applies in Natal is the will was executed before 1954.
 This deals with the situation where there is a spouse from the first
marriage that is referred to in the will. If the testator later remarries, then
the first will will automatically lapse.

o In all other cases; with wills outside Natal, or wills executed in Natal
after 1954; the will remains valid despite any subsequent marriage.

b) Divorce / Annulment of Marriage:

 Subsequent divorce or annulment of marriage applies where the testator


died after 1 October 1992: here it is assumed that the testator did not
have sufficient time after the divorce to amend his will and that he did not
want his ex-spouse to inherit.

 The requirements for this are:

(i) The testator must have died within three months of the divorce

• If the testator was divorced for more than three months, then the
original will will still operate.

(ii) The will must have been executed before the divorce or annulment.

• If after the divorce, the testator executes a will where the ex-
spouse benefits, then this will will be valid as it shows his
intention.

(iii) There must be no contrary intention.

 If the testator failed to change his will within three months of the divorce,
then any benefit to the ex-spouse will be devolved as if he / she was
predeceased.

o Example: In his will the testator leaves all his property to his wife, W.
subsequently, the testator gets divorced and dies within a week of the divorce. The
testator’s secretary then comes forward and says that she was having an affair with
the testator and that he had promised her that she would get everything. The
testator and W had a child called X; who inherits?

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Succession Lecture Notes (Term 1)

 Step 1: Divorce or subsequent annulment will give rise to a tacit revocation of


the will by operation of law; therefore go through the three requirements:

• (i) The testator died within three months of the divorce; (ii) the will was
executed before the divorce; (iii) there was no contrary intention.

• Therefore, the benefit to W is revoked and she will be treated as being


predeceased; thus the child X will inherit. The testator’s secretary will not
get anything as verbal revocations are not valid.

5.2. Conditional Revocation:

 This is where the intention to revoke is subject to a condition or a supposition; i.e. the
will can be revoked depending on the occurrence of an uncertain future event [a
condition].

o E.g. a testator revokes a will and then executes a second will on the condition that
he will be divorcing his wife and marrying his secretary.

 The will can also be revoked on the supposition of circumstances existing at the time of
the execution of the will.

o I.e. the testator revokes his will believing a certain circumstance to be in existence,
but he may be mistaken in the circumstances.

o E.g. a testator may revoke his first will, believing that his second will is valid; when, in
fact, it is invalid.

 For a revocation to be valid; that condition must be met or the supposition must be
true.

o Davis v Steel and Eriksen 1949 (3) SA 177 (W)

 In this case the testator had a will (Will 1); he then executed second will (Will
2) revoking the first will.

 The testator then took Will 1 and destroyed it, believing that Will 2 was valid.

 I.e. the testator believes that Will 2 is valid and his assumption is incorrect.

 The testator’s wife then went to court arguing that the testator had destroyed
Will 1 (thereby revoking it), and then as Will 2 was invalid; the estate would have to
be devolved intestate.

 The question before the court was whether intestate succession should be
applied or whether Will 1 was still valid.

 The court held that when the testator had revoked Will 1, he had done so on
the supposition that Will 2 was valid.

 The real question was whether the testator had the intention to revoke the
will if this revocation was based on a supposition that was not true?

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Succession Lecture Notes (Term 1)

 The court held that if the supposition was not true, then there was no animus
revocandi and therefore the revocation of Will 1 was invalid the thus it was still
a valid will.

o Le Roux v Le Roux 1963 (4) SA 273 (C)

 In this case there was a very confused testator: he had made his first will in
favour of his wife X. He subsequently divorced her and married Y.

 The testator then made a second will in favour of his second wife, Y. He then
changed his mind, and destroys the second will believing that the first will will
then revive.

 This belief / supposition was incorrect because once you revoke a will, it
does not automatically revive.

 The issue before the court was whether the testator in fact had a will.

 The court held that Will 1 does not automatically revive and therefore was not
valid and the second will had been revoked with the intention to revoke;
although the intention was based on a supposition that Will 1 would revive.

 That supposition was not met and therefore was not valid.

 The court held that Will 2 was valid and therefore the second wife would
inherit.

5.3. Revival of Revoked Wills:

 The general rule is that you cannot revive revoked wills. There are exceptions to this;
in order for a revoked will to revive, the following requirements must be met:

1. The revoked will must be in existence

 It is not possible to revive a will if the revocation was by way of destruction

2. Re-execution of the will

 There is uncertainty on this point – see below

 Moses v Abinader 1951 (4) SA 537 (A)

 In this case there was a testator who made a will and he then executed a second
will in which he revoked the first will; however, the testator then added a codicil (a
supposition) to his second will where he revoked and amended clauses contained in his
first will.

 The question before the court was whether the codicil referred to the first will
and if it did; whether that meant that the first will would be revived by the
codicil.

 I.e. the issue was whether to revive a will; do you need to re-execute it, or can
you simply have a formal reviving document, such as a codicil.

 Here the court was divided on how to revive a will:

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Succession Lecture Notes (Term 1)

 Van Den Heever JA: said that you can only revive a revoked will by re-
executing it.

• I.e. you would have to go through all the formalities required for
execution; and since this was not done here, the will did not revive (the
codicil, itself, was not enough).

 Schreiner JA: said that you could revive a will with a formally executed
Reviving Document.

 Although the judges disagreed with each other, they did agree that the testator did
not have the intention to revive, and therefore the first will did not revive.

 Note that in subsequent cases, Schreiner JA’s view has been followed with regard to
a formally executed document being sufficient to revive a revoked will.

UNIT 6: CAPACITY TO BENEFIT:

6.1. Statutory Provisions Affecting Capacity to Benefit:

 The beneficiary must be alive at delatio (i.e. when the estate falls open)
o It must be noted that an unborn child can inherit in terms of the Nasciturus Fiction:
s 2D(1)(c) of the Wills Act states that: ‘In the interpretation of a will, unless the context indicates
otherwise, 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.’

o I.e. it is presumed that the testator intended the Nasciturus Fiction to apply. Thus
an unborn foetus can inherit, subject to the intention of the testator.

 If the testator does not want the Nasciturus Fiction to apply, then he must
make his intention known in the will.

o The rule that applies to unconceived children is that if there is no conception, then
there is no inhetiance. An unconceived child can only inherit in terms of testate
succession if that is the INTENTION of the testator; e.g. the testator could say, ‘I
leave my farm to all the children of my daughter A.’ [in the meantime, the farm would be held
in a trust]

 There is a presumption that s 2D(1)(c) refers to a class of people: e.g. all my


children, all my grandchildren, etc. The testator has to make it clear that he
intends for unconceived children to inherit.

 What is meant by delatio / vesting in terms of Testate Succession?

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Succession Lecture Notes (Term 1)

o Remember that for Intestate Succession, delatio occurs at the death of the
deceased; but for Testate Succession, delatio occurs in terms of the will.

 I.e. you look at the provisions of the will: for example if the will says, ‘I leave
my farm to my son when he turns 21’ then only when the son turns 21 will the
farm be vested.

o If you are dealing with a will that is subsequently declared inoperable, then vesting
takes place at the moment that the will is declared inoperable.

The Effect of Incapacity to Inherit:

 If you are incapable of inheriting, you will be disqualified as though you were dead at
the time of delatio.

o The real issue is what happens when someone is incapable of inheriting; as such a
person may be represented under Intestate Succession.

o Testate Succession is slightly different; you have to first see whether the testator
has provided for any substitutions in the will; and if he has, then you give effect to
them.

 There is also what is known as Statutory Representation of Substitution in terms ss


2C(1) and (2) – Surviving spouse and descendants of certain persons entitled to benefits in terms of will.

o These sections take care of the situation where the bequest fails due to incapacity
to inherit.

 Importantly, this section only comes into operation if the beneficiary who was
disqualified, was a descendant of the testator.

o If the beneficiary is predeceased, then ss 2C(1) and (2) provide that his / her
descendants can represent can represent him / her.

o Also, if any descendants of a testator; who, together with the surviving spouse of
the testator are is entitled to a benefit in terms of a will; renounces his right to
receive the benefit, then the benefit shall vest in the surviving spouse.

 This is the SAME as with Intestate Succession where the benefit goes to the
spouse, there is no representation.

o Note that at all times, ss 2C(1) and (2) are subject to the INTENTION of the
testator.

o If ss 2C(1) and (2) do not apply, then the provision becomes inoperable and
Intestate Succession takes place in terms of that particular benefit, not the entire
will.

 How do we determine whether someone is capable or incapable of inheriting?

o You look at the Perpetual Edict of 1540:

 In terms of this, guardians and curators of minors are not allowed to inherit the
immovable property of the minor.

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Succession Lecture Notes (Term 1)

 In the past, spouses married to minors were not allowed to inherit from those
minors; however, this has been abolished, so now they can inherit.

 With regard to extra-marital children, testate succession makes no distinction between


then and legitimate children; this is of course subject to the testator’s intention.

o The testator would have to specifically exclude these children if he did not want
them to inherit.

6.2. Unworthy Persons:

 These are persons who are unworthy to inherit because their conduct was so morally
repugnant that they do not deserve to inherit.

1. Someone who kills the testator:

 In terms of the maxim ‘Bloedige hand of niet’, the bloody hand will not inherit.

 Also, anyone who kills a conjuctissimi will not inherit.

• Conjuctissimis are close relatives of the testator, i.e. a parent, spouse or a


child of the testator; so if you kill the testator’s brother, then you can still
inherit.

• You also have to look at how the killing took place: if you kill the
conjuctissimi negligently then you can still inherit, but you cannot if you
kill him intentionally. If you kill the testator, either negligently or
intentionally, then you cannot inherit.

• Casey NO v The Master 1992 (4) SA 505 (N)

 In this case you had an intoxicated person, H; who decided to take out
his gun and clean it.

 While cleaning the gun, he shot his wife and she died.

 H had no intention to kill his wife but the court held that he was
disqualified from inheriting, even though the killing was negligent and
not intentional.

• Ex parte Vonzell 1953 (1) SA 122 (C)

 In this case you had the situation which occurs very regularly in SA. V
was in the process of divorcing his wife; he went a bit crazy and killed
her.

 The court held that V was disqualified from inheriting from her;
however, he was still entitled to his share of the joint estate in terms
of their matrimonial regime.

2. People who Hide, Destroy or Forge a Will:

 S 102(1) of the Administration of Estates Act 60 of 1986 says that anyone who
hides or destroys a will shall be guilty of a crime; this section, however, does

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Succession Lecture Notes (Term 1)

not say anything about whether such a person may inherit. In order to
determine this, we have to look at case law.

• Pillay v Nagan 2001 (1) SA 410 (D)

 In this case the deceased died in September 1994. Then in October


1994, a document purporting to be the will of the testator was lodged
with the master.

 The testator was survived by and in terms of the document, the


first defendant, Nagan, was declared the sole heir.

 Three of the six children contested the will saying that it was a forgery
and that the testator had died intestate. The first defendant, Nagan,
and three other children said that the will was valid.

 The plaintiff, Pillay, went to court and said that he wanted the will
declared invalid and Nagan declared unworthy to inherit.

 He said that there had been a family meeting and that meeting
Nagan had admitted that the will was invalid, and he had even
confessed to this on the back of the will.

 The court held that the will was a forgery and therefore inheritance
would be via Intestate Succession. The court then went on to say that
anyone who forges a will will be declared unworthy to inherit.

3. Persons who Behave in a Morally Repugnant Way Towards the Deceased:

• Taylor L v AE Pim (1903) 24 NLR 484

 In this case there was a man who lived with the testator and even
though he had been warned that the testator should not drink, he
encouraged her to drink and when he saw that she was ill, he failed to
get her medical attention.

 The man was an heir in the testator’s will and the other heirs went
to court to have him declared unworthy to inherit.

 The court held that the man was disqualified from inheriting and that
he was declared unworthy because his behaviour had been morally
repugnant towards the testator.

4. Persons who are Enriched by Their own Crimes:

 Here we are dealing with people who commit crimes in order to inherit. If
someone is a habitual criminal then that will not preclude him from inheriting;
as long as he did not commit a crime in order to inherit.

 There are two requirements for this:

a) There must be a causal link between the crime and the benefit; and
b) The inheritance must be an ordinary, natural or reasonably foreseeable
consequence of the crime

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Succession Lecture Notes (Term 1)

o E.g. if you take a loaded gun to a family dinner and you start shooting
up in the air, it is reasonably foreseeable that some of those people
will be injured.

• Ex parte Steenkamp en Steenkamp 1952 (1) SA 744 (T)

 In this case Steenkamp murdered his wife’s parents, X and Y; thus we


are looking at the killing of a conjuctissimi. He was convicted of the
killing and sentenced to a life sentence. X and Y had left their farm to
Steenkamp’s three children; A, B and C.

 As it happened, C was a very young and sickly child and shortly after he
inherited from his grandparents, he died.

 I.e. he died intestate and in terms of Intestate Succession,


Steenkamp stood to inherit from C, his child.

 First Question: was Steenkamp enriched from the crime of killing X


and Y?

 Second Question: look at whether Steenkamp was unworthy to inherit


because of the killing of X and Y.

 In terms of the rule regarding the killing of a conjuctissimi,


Steemkamp was not disqualified from inheriting from C by reason
of his killing of X and Y and they were C’s grandparents and not his
conjuctissimi.

 Third Question: Was there a causal link between the killing and the
benefit?

 The court held that there was a link, but both requirements had to
be met. The second requirement is whether the benefit was an
ordinary, natural and foreseeable consequence of the crime.

 The court said that it was not a naturally foreseeable and ordinary
that C would die and that Steenkamp would inherit.

 The court therefore ruled that Steenkamp could inherit from his son.

6.3. Persons Participating in the Execution Process:

 This deals with people who are disqualified from inheriting because of who they are,
e.g. persons who participate in the execution process are disqualified from inheriting
and the rationale behind this is to prevent fraud.

 The following people are disqualified in terms of s 4A(1) of the Wills Act:
1. Persons who are witnesses to the will

2. An amanuensis cannot inherit in terms of a will.

 Anyone who signs on behalf of the testator

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Succession Lecture Notes (Term 1)

3. Someone who writes the will in his own hand cannot inherit.

 However, if you type the will, you can inherit.

4. The spouse of all the above people also cannot inherit.

 If one of these people is a beneficiary in the will; then the will is still operable, but
substitution will take place OR that particular bequest will be devolved intestate.

 S 4A(2) gives exceptions to s 4A(1):

1. The section says that any of these people can inherit if they apply to the court for
such an order if they can prove that there was no fraud or undue influence.

2. If those people, such as witnesses, spouses, etc; would have been intestate heirs,
then they would still be able to inherit in that way.

3. A superfluous witness (e.g. a third witness) is entitled to inherit without a court


order.

 S 4A(3) states that the nomination in a will of a person as an executor, trustee or


guardian shall be regarded as a benefit to be received by that person from that will and
then those people cannot inherit.

51