the will that X is to inherit, failing him, Y is to inherit. delay the administration process. The testator may make express provision for a right of accruallapsing of the share of one of several beneficiaries by substituting the remainder in his place; for example, where he leaves his estate “to my children and if any of them predecease me, his share shall pass to the others,” or “shall revert to the estate,” or “to my children, or such of them as may be alive at my death.”, On the other hand, the testator may expressly negative any accrual to the original beneficiaries where he or she directs that upon the lapsing of a share it shall go to some third person or persons, e.g. This can be either the intentional or negligent unlawful causing of death of another. It follows that the executor alone can sue and be sued in respect of estate matters. Illustrations are given below of some of the more common and important dispositions, in connection with fideicommissa, which have been the subject of interpretation by the courts. A fideicommissum simplex is constituted where the testator leaves ‘my farm (or estate) to Stuart, and on Stuart’s death, after me, it is to go to Luke’. The executor may enforce such an obligation even if the deceased has died insolvent. If there is a valid will which sets out the wishes of the testator, the estate is administered in terms of the law of testate succession. In the case of direct substitution, an interest in property is gifted to an institute (as an heir or legatee), subject to the condition that, if for some reason or other the interest does not vest in him, it is to go to the substitute. It is further clear that, only upon acceptance of an inheritance by an insolvent heir, does a right fall upon a curator of an insolvent estate. To be complete and effective, a testamentary disposition must identify. to separate shares—e.g. if the testator voluntarily alienates the subject-matter of a legacy during his lifetime, in which case it is said that the legacy fails through ademption; if the legatee dies before the legacy passes to him or her; in the event that the legatee repudiates; in the event that the legatee is unfit to inherit; if the bequeathed asset is destroyed; and. The nasciturus fiction states that, if an advantage accrues whilst a child, later born alive, is a foetus, he is deemed to have the requisite legal personality from the time that the benefit accrues. 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 to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1). 4. Incompetence would result from the will's being executed by a person who suffers from a mental illness or is under the influence of alcohol or drugs (both legal and illegal) at the time of execution, if that person is incapable of understanding the nature and effect of what he is doing. Similarly, South Africa did not adopt the family provision and dependants’ relief of English law under the Inheritance (Provision for Family and Dependents) Act 1975.[73]. The Maintenance of Surviving Spouses Act was passed to provide a remedy for surviving spouses. The right of accrual, then, is the right co-heirs and co-legatees have of inheriting a share which a co-heir or co-legatee cannot, or does not wish to, receive. Despite the existence of section 2(3), it remains vital for wills to be properly executed in accordance with the requirements of section 2(1), because the lengthy delays and financial expense involved in obtaining a court order that a defective document be treated as a will can be disastrous for the testator's family. Unless the context of a will indicates otherwise, when interpreting a will. There is a particularly important distinction to be made between legacies and inheritances. An executor is liable in respect of any contractual obligation of the deceased which could have been enforced against him had he been alive, unless the obligation is of a personal nature or was clearly not intended by the parties to be transmissible. A pre-legacy is a special bequest which has preference over all other bequests in terms of the testamentary instructions. If a person cannot get a presumption order, he may apply for an order for administration of the estate. In customary law, the competence of the beneficiary is often linked to the rule of male primogeniture. If pension benefits are due to the deceased, the trustees will decide to whom they are awarded. The reasons for an heir to repudiate may vary: it These are derived from common law and the Wills Act. The phrase used to indicate that a right has vested is, successive interests, known as fideicommissary substitutions; or. In terms of the Recognition of Matrimonial Property Act, the first marriage of a male with more than one wife is always considered to be in community of property. The acceptance of an unconditional benefit, therefore, is generally taken for granted, but not where the acceptance involves a liability, in which event the beneficiary has a choice or election whether to accept or to repudiate the benefit. where that person has been exempted from providing security in the deceased's will. In other words, instead of leaving the full ownership of the estate, or of a specified thing, to one person, the testator may leave the ownership to one person, subject to a usufruct in favour of another person. As stated before, the cardinal principle in construing a will is to ascertain from a consideration of it in its entirety the intention of the testator. Abolishsed: Cape Colony, Act 26 of 1873; Transvaal, Proclamation No. the celebration of marriage in Nigeria. Even a document which does not comply with the execution formalities, but which was intended by the testator to be his will, must be revoked by the testator in one of the recognised ways to avoid the possibility that a court may make an order in terms of section 2(3) directing that the document be accepted as the testator's will. The liability for paying inheritance tax depends on what’s been received. SARS recently considered the question of whether there would be tax The law reports contain numerous instances of the courts’ being requested to interpret wills where one party contends that the interest is usufructuary and the other claims that it is fiduciary. ... but the beneficiaries’ inheritance was … when the testator has left no valid will or testamentary disposition contained in a valid. The persons upon whom the testator's inheritance devolves are the called the beneficiaries. Where the deceased dies leaving a valid will, the rules of testate succession apply. Intestate succession takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. This remains the position under the Administration of Estates Act of 1965, which re-enacted the earlier provision in somewhat wider terms, as follows: “If any two or more persons have by their mutual will massed the whole or any specific portion of their joint estate and disposed of the massed estate or of any portion thereof after the death of the first-dying, conferring upon the survivor or survivors any limited interest in respect of any property in the massed estate, then upon the death after the commencement of this Act [October 2, 1967] of the first-dying, adiation by the survivor or survivors shall have the effect of conferring upon the persons in whose favour such disposition was made, such rights in respect of any property forming part of the share of the survivor or survivors of the massed estate as they would by law have possessed under the will if that property had belonged to the first-dying.”. Unworthiness is not a general principle; an individual can only be unworthy in respect of a particular person or that person's conjunctissimi (parent, spouse or child). No effect is given to illegal dispositions. It must be noted that if the mutual will masses not the whole, but a portion merely of their estates, the will is irrevocable by the survivor in respect of the massed portion only. The question of whether, on the death of the testator, an interest under a will is conditional or vested, or vested but not immediately enjoyable, depends entirely on the intention of the testator. drafted another document, or before death caused such document to be drafted. The court, in interpreting wills, leans in favour of an absolute ownership of property having been bequeathed rather than, as occurs in the case of a fideicommissum, a burdened ownership. The will is not executed in compliance with formalities. A person who is incapable of forming the necessary intention will not be regarded as being unworthy to inherit. Collation applies only to heirs who have adiated. Were the parties in that situation presently, they would have the option of formalising their relationship under the Civil Union Act. The estate is divided into as many equal portions as there are surviving children and deceased children who leave descendants. A full-blood collateral has two ancestors in common with a person; a half-blood collateral has only one. The undersigned acknowledges that the executors of the Estate will rely on this Renunciation of Inheritance in distributing the property and assets of the Estate. Customary law does not have a similar fiction, but some communities have customs that are meant to produce heirs for a husband after his death. In the case of a will executed on or after January 1, 1954, which the testator amended on or after October 1, 1992, the amendment (including a deletion, addition, alteration or interlineation), made after the will is executed, is valid only if. When receiving a benefit, the heir must sign a receipt; obviously animals are unable to do so. Thereafter the remainder of the estate will devolve in terms of the rules of intestate succession. If the executor does not have sufficient free cash in hansets belonging to the estate in order to raise the necessary amount, but he may not sell assets bequeathed as legacies unless there are no other assets to meet the debts. Hence execution may be levied against the fiduciary's rights in pursuance of a judgment obtained against him or her. (This is usually the spouse or the children depending on the circumstances.) The institution of an heir or heirs is not today essential for the validity of a will. Although the customary law of intestate succession has been abolished to a great extent by means of court judgments, there are customary law impediments influencing a beneficiary's capacity to inherit in terms of the customary law of succession. It followed that the survivor retained the dominium in his or her share of the property even after adiation, and could thus validly alienate or mortgage such share. Such failure may take place by the death of the beneficiary before vesting occurs; or by the beneficiary's incapacity to take his or her share; or by the beneficiary's refusal to adiate. The Master determines only whether the formal requirements of the will have been met; he does not concern himself with the other formalities regarding capacity. Although most persons are competent to inherit, there are some who do not have the competence to take up a benefit in terms of a specific will. It was a bequest to an heir or legatee (the fiduciary) with an instruction to hand over the bequest to a third party (the fideicommissary) who was otherwise disqualified from taking. It follows that an adopted child inherits upon the intestacy of its adoptive parents and their relatives, but not upon the intestacy of its natural parents and their relatives. For example, the testator may leave a sum of money to Helen “if she attains the age of 21,” or “if Helen becomes Mayor of Cape Town.”. guide to the subject matter. In these circumstances the State is not an “heir,” and the estate is not “inherited.” It merely accrues to the State. In other words, if B is then alive, she acquires the usufruct of the farm, and C acquires no rights. The case of Gory v Kolver changed this position, with its finding that such partners could inherit intestate. If the survivor accepts the benefit, he or she must also accept the loss of an interest in his or her own property; the survivor cannot accept the benefit without its accompanying liability. Although, therefore, an electronic will, stored on a computer hard drive, for example, which has not been printed or executed, is invalid due to the fact that as it is not in writing nor validly executed, it can be saved by section 2(3). Where a benefit has been bequeathed in a will to the A stirp may be translated literally as a branch. In this case, all beneficiaries must furnish security for the assets received. A person is guilty of a crime, therefore, who steals, wilfully destroys, conceals, falsifies or damages a will, and may not inherit in terms of that will. The following are examples of the less complex of these combinations. According to the evidence, the husband probably lived longer than his wife. If the deceased resided in more than one district during the twelve months prior to death, the account lies at that district's Magistrate as well. Beneficiaries may be divided into two categories: Anyone may be appointed as an heir or a legatee, including a natural person, a fixed or fluctuating class of persons, a company, a public corporation or a government department. Effect is also not given to those dispositions which are against public policy.[36]. by one of his parents, the surviving parent inherits one half of the intestate estate and the descendants of the deceased parent the other half, unless there are no such descendants, in which case the surviving parent inherits the entire estate. It is possible, for example, to inherit real property that is located too far away to be of benefit, or personal property that simply isn't wanted. It is generally accepted that witnesses are not required to sign every page; they are simply required to sign any page anywhere on the page. The preferred legatees have preference and are satisfied in full and the balance is divided proportionately among the remaining legatees. If this happens, the legacy is regarded as having been tacitly revoked, or “adeemed,” as it has lapsed by ademption. A will or testament is a declaration, in proper form, by a person known as the “testator” or “testatrix,” as to how and to whom his or her property is to go after his or her death. descendant will devolve upon the other descendants per tax and capital gains tax are concerned and that a repudiation A clause or provision in a will which imposes on a beneficiary the duty of employing the proceeds of a bequest for certain specified purposes is termed a modus. conferred upon him/her in the will. In other words, the prohibition is of no effect, and the beneficiary will receive the bequest free from any prohibitions. Where the property specified belongs jointly to the testator and to a third person it is clear that the testator cannot override the rights of the co-owner; the testator's will cannot do more than he or she personally could do and the legacy is not binding on the co-owner. The most common form of condition found in wills is “if A survives B” (B being some specified or determinable person). With regard to the maintenance of parents, there is no law providing for this yet. Consequently, succession is merely a causa habilis, or appropriate cause, for transfer of ownership. The second fideicommissary may bequeath the land to whomever he wishes. a usufruct or fideicommissium. Where there is no will, the assets are distributed among the heirs according to the rules of intestate succession; where there is a will, the assets are distributed according to the provisions of that will. a specified thing, such as a farm, a motor car or a particular debt owed to the testator; or. If a person has successfully raised a defence of justifiable homicide, this is a full defence, and the accused is entitled to inherit from the deceased. Download Printable Contract (.DOC format) Formatted and ready to use with Microsoft Word, Google Docs, or any other word processor that can open the .DOC file format. Persons married in terms of Hindu rites are not recognised in South African law as “spouses” proper. Intestacy is total when none of the assets are disposed of by a valid will: for example, where there is no will at all, or only a will which is void, or which has been revoked. The common law of succession is divided into the testate law of succession and the intestate law of succession, whereas the customary law of succession only operates intestate. If, however, he attains the age of 21 dies cedit, and the legacy thereupon vests in him. under the will the fiduciary is entitled to alienate the fideicommissary estate; the testator has dispensed with the requirement of security; and. Where no documentary evidence is presented to the a partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support. Tax implications aside, estate When a legitimate portion was not provided, the will could be set aside by the action. If property is left to an heir on the condition that the heir shall not alienate it, but no provision is made for the property passing to any other heir in case of a breach of the condition, or if no heir is specified or indicated in whose favour the prohibition is imposed, the prohibition is of no force or effect and is said to be nude (nudum praeceptum), for there is no fideicommissary. A direct substitution will not be implied unless it is clear, as a matter of ‘necessary implication’,[citation needed] that the testator so intended in respect of an event actually contemplated by the testator. Where the will is to be altered or varied out of necessity, see Ex Parte Douallier. The share inherited by a surviving spouse is unaffected by any amount to which he or she might be entitled in terms of the matrimonial-property laws. The chief instances are those where an express fideicommissum is made conditional on a si sine liberis decesserit clause, and where there is a prohibition against alienation out of a family. predeceases the testator or repudiates the inheritance then Y will An heir may be appointed as from a certain date or event, or until a certain date or event. The main provisions in wills are those which dispose of the property of the testator to a person or persons. Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O). 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