Law of succession in South Africa

Presumption of death

The first exception to the rule that a person must be dead before succession can occur, is where a court pronounces a presumption of death and makes an order for the division of the estate. Those who allege that a person is dead have to prove it. Where the body is present and can be identified, death can easily be proved. However, where a person has disappeared and a body has not been found, death is difficult to prove. Only when a court makes a presumption of death order can the disappeared person’s estate be administered. Because it is possible that the deceased might still be alive, this case constitutes an exception to the rule that he or she must be dead before succession can occur. For this reason, it is also customary for a court to order that the estate of the person presumed to be dead should be distributed amongst his heirs subject to the provision of security that the estate can be returned to him should he reappear. Factors which a court may take into consideration in making such an order include the length of time that the person has been missing, the age, health and position in society of the missing person, as well as the circumstances of the disappearance. The principles applicable to judicial presumption of death have been reviewed in detail by the higher courts.^[7]

Beneficiaries must be alive at the time of the testator’s death, unless the testator makes provision for the benefit of persons born later. Death is proved by reporting the death to the Master and obtaining a death certificate signed by a medical practitioner. This is important: Without proof of death, the estate cannot be administered, and one’s affairs cannot remain indefinitely in limbo.

In such circumstances, a person may approach the High Court for an order, granted on a balance of probabilities, presuming the death of another person. The effect of the order is to create a rebuttable presumption that the specified person is dead. The court may later reverse the order if the presumption is rebutted; it may also order that all persons who received a benefit from the devolved estate return the assets in terms of the law of unjustified enrichment.

If a person cannot get a presumption order, he may apply for an order for administration of the estate. In this case, all beneficiaries must furnish security for the assets received.

Estate massing

A second exception to the rule that a person must be dead can be found in the case of estate massing. When estates are massed, the entire estates or parts of the estates of various testators are consolidated into a single economic unit for the purpose of testamentary disposal. The effect of estate massing is that the surviving testator’s estate dissolves according to the will of the first-dying whilst he or she is still alive.

Either party to a mutual will may, while both are alive, revoke his or her share of the mutual will with or without communication to the other party. But after the death of one party the survivor may not revoke his or her share of the mutual will where both the following further conditions or circumstances occur:

• the mutual will effects a “massing;” and
• the survivor has accepted some benefit under the will.

The term “massing” will first be explained, then the survivor’s election will be discussed, and thereafter effect of the survivor repudiating or accepting benefits respectively will be considered.

Massing is a disposition by the testators in a mutual will of their joined property or of a portion of it in favour of the survivor, giving him or her a limited interest in the joined property, and providing that on his or her death such property is to go to some other person or persons. The limited interest conferred on the survivor is, as a rule, either a usufructuary or a fiduciary interest. For example, the testators leave “all property belonging to us to our children, subject to a usufruct in favour of the survivor;” in this case the survivor acquires a usufructuary interest in the massed property. Or, again, the testators may leave “our joint estate to the survivor, and after the death of the survivor to our children;” in this case the survivor acquires a fiduciary interest.

It will be seen that the effect of massing, if carried out, is to give the survivor one benefit and to deprive him or her of another. The survivor acquires a beneficial interest in the property of the first-dying which otherwise (in the absence of any will) the survivor would not have obtained, but the survivor no longer has the full ownership of his or her own share of the property which otherwise he or she would have retained. The survivor, however, is not bound to allow the mutual will to be carried into effect. 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. It follows that the survivor has a choice or election whether to abide by the terms of the mutual will or to repudiate them.

Sequence of death

Another aspect worth mentioning, occurs when a number of people are killed in the same disaster (commorientes) and it is difficult to determine who died first. It might be important to be able to determine who died first in order to choose the beneficiaries, especially if the victims are family members. It could happen that the estate of the victims is devolved as if they died simultaneously whilst in actual fact one or more of them died at a later time.

Consider the following example: Corbin and Armand die in a plane crash in which there are no survivors. In terms of Corbin’s will, Cameron is his only heir. Corbin’s estate is only worth R100. In terms of Armand’s will, Corbin is her only heir, and Armand was wealthy. If Corbin died after Armand and could first inherit from him, then Cameron, who inherits from Corbin, is in a favourable position. Cameron would want to prove that Armand died before Corbin. If Corbin and Armand died simultaneously and on impact, Corbin cannot inherit anything from Armand, as he was not alive at dies cedit: that is, upon Armand’s death.

The cardinal rule is that an heir, in order to inherit, must survive or outlive the deceased. When two persons die at the same time, it is important to know who died first, so as to determine if they may inherit.

In Roman-Dutch law, certain presumptions existed when members of the same family died in circumstances where it was difficult to determine who died first. It was always presumed that the wife died first. In England, there was a presumption that, when two persons died at the same time, the older of the two had died first.

The South African courts, however, did not apply these presumptions. The general rule is that, where there is no evidence of who survived whom, it is to be presumed that they died simultaneously.^[8] In Greyling v Greyling, a husband and wife were killed in a car accident. According to the evidence, the husband probably lived longer than his wife. In their joint will, the spouses had a provision to the effect that, if they died simultaneously, their estate had to devolve in a certain way. The Court held that the words "gelyktydig te sterwe kom" (to die simultaneously) meant the death of the testators as the result of a single incident, irrespective of the fact that there was a difference in the exact time at which they died.

Overpayment by executor

If an executor pays the heirs or legatees more than they were entitled to, there is unjustified enrichtment, so the executor may recover the excess from them by means of the condictio indebiti. Similarly, an executor may reclaim from concurrent creditors an overpayment made to them if the estate is subsequently found to be insolvent.

Estate duty

By virtue of the Estate Duty Act, estate duty is payable on all property of a deceased person, and on all property which is deemed to be his property at the date of death.

Heirs

An heir inherits

• the entire inheritance;
• a proportional part of it;
• a particular part of it; or
• the residue of the inheritance.

A testator may nominate one heir or many heirs. An heir may be nominated in a will or in an antenuptial contract. An heir may also inherit intestate.

Legatees

Legatees are beneficiaries in testate succession only. They inherit a specific or determinable asset (like a car) or a specified amount of money (exactly R10,000, for example). A legatee may be nominated only in a will or in an ante-nuptial contract. It is not possible for legatees to exist where the deceased died intestate.

A pre-legacy is a special bequest which has preference over all other bequests in terms of the testamentary instructions.

The testator may only bequeath his assets, or the assets of a third party, by means of a legacy.

A legacy will fail under the following circumstances:

• 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
• if the legacy is made for a specific purpose, which purpose becomes impossible to execute.

Differences and similarities

The differences between heirs and legatees may be summarised as follows:

• Heirs occur in both testate and intestate succession; legatees occur only in testate succession.
• After the estate debts are paid, the executor must pay the legatees first. The legatees, therefore, have a better right and are in a stronger position than heirs.
• At common law, heirs are obliged to collate: that is, to return any benefit received during the currency of the testator’s life, over and above reasonable support and maintenance. Legatees do not have this obligation.

Adiation

Acceptance of a benefit under a will, generally referred to as “adiation,” is the act of a beneficiary in signifying an intention to take the benefit. A beneficiary is not obliged to accept a benefit under a will. However, if he accepts the benefit, he incurs any liability which may be involved in it. The general rule is that a person is assumed to have adiated unless he expressly repudiates. Nothing express or explicit is required by way of acceptance.

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. For example, where the will leaves property to a person on condition that he or she pays a sum of money to another person, or that he or she gives another person some of his or her own property, or that he or she maintains and supports some other person.

The Wills Act provides that if any descendant of a testator, excluding a minor or mentally ill descendant, who together with the surviving spouse of the testator, is entitled a benefit in terms of the will, renounces his or her right to receive such a benefit, such benefit shall vest in the surviving spouse. Where the surviving spouse does not stand to inherit, and unless the will indicates otherwise, the renounced benefit must devolve on the descendants of that descendant per stirpes.

The effect of adiation is that the heir or legatee acquires a vested personal right against the executor for delivery of the asset once the estate has been liquidated.

Repudiation

The effect of repudiation is enunciated in the relevant provisions of the Wills Act and the Intestate Succession Act. The former provides as follows:

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

If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.^[10]

The Intestate Succession Act contains the following provisions:

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.

If a person is disqualified 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.^[11]

Fraud, duress and undue influence

A person may not inherit who, by fraud, duress or undue influence, has induced the testator to make a disposition in his or her favour. The amount of pressure which leads to the invalidity of a disposition on the ground of undue influence depends on various factors, such as the mental state of the testator and the relationship between the persons concerned.

Inducing immorality or degradation

A person who induces the deceased to lead an immoral or degrading lifestyle may not inherit either.

Unlawfully causing or contributing to the death of another

This can be either the intentional or negligent unlawful causing of death of another. At common law, somebody who has negligently caused the death of a deceased (of the testator’s conjunctissimi) is also unworthy of inheriting from the deceased. It is evident, therefore, that unworthiness is not contingent on a criminal act.^[13][14][15]

Where, therefore, the deceased does not die immediately, and does not revoke a bequest conferred on the killer, the latter is still precluded from inheriting. It is an open question whether a person who has killed his spouse may claim the survivor’s share in terms of the matrimonial property regime governing their marriage.

Justifiable homicide

A person is only disqualified if he caused the death of the deceased unlawfully and intentionally. 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.

Perpetrator not criminally responsible

A person who is incapable of forming the necessary intention will not be regarded as being unworthy to inherit.^[16][17]

Forging, hiding or destroying a will

Forging, hiding or destroying a will is not only a civil wrong (in that a person who does so will not be entitled to inherit); it is also a criminal wrong (in terms of section 102 of the Administration of Estates Act). 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.^[18]

Pension benefits

A pension benefit is not considered to be an asset of a deceased estate. Pension benefits are dealt with outside the estate. The deceased may not bequeath these benefits to an heir or legatee. If pension benefits are due to the deceased, the trustees will decide to whom they are awarded. The bloedige hand principle has been extended to cover pension benefits.^[19]

Insurance benefits

When taking out an insurance policy, one must nominate a beneficiary. The bloedige hand principle has been extended to cover insurance benefits.^[20]

Persons involved in executing a will

Section 4A(1) of the Wills Act disqualifies four categories of people form receiving a benefit from a will:

• a person who signs the will as a witness;
• person who signs the will as a proxy;
• a person who signs the will in the presence of and by the direction of the testator;
• a person who writes out the will or any part of it in his own handwriting; and
• the spouse of any of the above persons.

For the purposes of this provision, “any benefit” includes nomination as an executor, trustee or guardian. The rationale for such disqualifications is that they prevent fraud.

A beneficiary will not be disqualified, however, in the following circumstances:

• A court may declare a person or spouse competent to receive a benefit if it is satisfied that the testator was not defrauded or unduly influenced.
• If a person would have been entitled to receive a benefit in terms of intestate succession, he will not be disqualified, provided that the value of the benefit in terms of the will does not exceed what would have been received in terms of intestate succession.
• If a person who is entitled to receive a benefit in terms of the will has signed the will as a witness, along with two other competent witness who will not receive a benefit, that first person may inherit.

Section 4A does not apply where a beneficiary under a will witnesses a subsequent codicil made by the testator; similarly, a witness to a will may take a benefit under a subsequent codicil made by the testator.

Animals

Animals are not legal persons and, therefore, may not be beneficiaries in a will. When receiving a benefit, the heir must sign a receipt; obviously animals are unable to do so. Provision may be made for animals, however: trust funds to care for them, conditions that a person only inherits if they take care of the animal, etc.

Blood relations

• Descendants are persons who descend directly from another person, such as children, grandchildren, great-grandchildren, etc.
• Ancestors are persons from whom the person is directly descended, like parents, grandparents, great-grandparents, etc.
• Ascendants are ancestors and collaterals.
• Collaterals are relatives descended from the deceased’s ancestors but not in the direct line of descent, i.e., neither ancestors nor descendants—such as siblings, aunts and uncles, nieces and nephews, etc.
  • Collaterals can be full- or half-blooded. A full-blood collateral has two ancestors in common with a person; a half-blood collateral has only one. A sister, therefore, is a full-blood collateral—she has both parents in common with her sibling—but a half-sister is only a half-blood collateral, since she has only one parent in common. If, in other words, Boucher and Cronje are descendants of Abel—that is, if Abel is an ancestor of Boucher and Cronje—Boucher and Cronje are full-blood collaterals.
  • Collaterals can be first-, second- or third-line. First-line collaterals are the descendants of the deceased’s parents, i.e., the deceased’s siblings and nieces and nephews. Second-line collaterals are the issue of the grandparents not including the parents, which includes uncles and aunts, and first cousins. Likewise, third-line collaterals are the issue of great-grandparents not including grandparents and parents, and so on.

Distribution scheme

Three stirpes. B is a stirpes, as he is a surviving descendant of A. C and E are both stirpes, as they are survived by descendants. F is not a stirpes, as he is not survived.

Two stirpes. C is a stirpes, as he is a surviving descendant of A. D is a stirpes, because he is survived by a descendant. In other words, although D and H are both deceased, D is survived by his grandchild; therefore it is D who is the stirpes, not I.

If B is unworthy to inherit, or if he chooses not to, F and G may represent B in order to inherit.

South Africa uses the Roman-Dutch parentelic system to reckon kinship and determine distribution in intestacy. The term parentela refers to a particular parental group and its descendants:

• First parentela consists of the deceased and his descendants.
• Second parentela consists of the deceased’s parents and their descendants (first-line collaterals).
• Third parentela consists of the deceased’s grandparents and their descendants (second-line collaterals).
• Fourth parentela consists of great-grandparents and their descendants (third-line collaterals).

And so the parentelae go on. Essentially, the lowest parentela wins and takes the entire estate, and parentelic heads trump others within the same parentela.

A stirp may be translated literally as a branch. In the present context, therefore, it includes the surviving child of a deceased, as well as a predeceased child survived by descendants.

When determining how many stirpes there are, one should pay attention to the immediate descendants of the deceased and then see if they are alive or if their descendants are alive.

Representation arises when an heir cannot, or does not wish to, inherit from the deceased. In this case, the descendants of the heir may represent the heir to inherit.

Spouse only, no descendants

Where the deceased is survived by a spouse, but not by a descendant, the spouse inherits the intestate estate. “Spouse” includes

• a person married to the deceased in accordance with Muslim rites;
• a person married to the deceased in terms of African Customary Law; and
• a partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support.

No spouse and only descendants

The estate is worth R300,000. A, B and C will each receive R100,000.

The estate is worth R300,000. B and C will each receive R100,000. D and E will each receive R50,000 (A's one-third share divided equally).

Where the deceased is survived by a descendant, but not by a spouse, the descendant inherits the intestate estate. The estate is divided into as many equal portions as there are surviving children and deceased children who leave descendants. Each surviving child takes one share, termed a “child’s share,” and the share of each deceased child is divided equally among his surviving children and each group of descendants of a deceased child. This process is known as representation per stirpes; it continues ad infinitum.

An adopted child is deemed, for all purposes, to be the legitimate child of its adoptive parent. An order of adoption terminates all rights and obligations existing between the child and its natural parents (and their relatives). 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.

Under Roman-Dutch law, an illegitimate or extra-marital child inherited upon the intestacy of its mother, but not of its father. This limitation on the capacity of the extra-marital child to inherit on intestacy has been swept away by the Intestate Succession Act, which provides that, in general, illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation. Illegitimacy arising from incest, too, no longer presents a problem. Furthermore, as noted earlier, the tenuous position of extra-marital children under African customary law of succession, too, has been removed by making the Intestate Succession Act applicable to all children.

Spouse and descendants

The estate is worth R400,000. There are three children; therefore, one should divide the entire estate by four (three children plus one) to calculate a child’s share. A child’s share is thus R100,000. Because the spouse inherits the greater of R125,000 and a child’s share, the spouse in this example will inherit R125,000. The remaining R275,000 is then divided equally between the children. Thus each child will receive R91,666.67. If the estate is worth less than R125,000, the spouse will inherit everything.

Where the deceased is survived by one spouse, as well as by a descendant, the surviving spouse inherits whichever is the greater of

• a child’s share; and
• an amount fixed from time to time by the Minister of Justice and Constitutional Development (presently R250,000).

The descendant or descendants inherit the residue (if any) of the intestate estate.

To calculate a child’s share, the estate is divided into as many children’s shares as stated above, plus an additional share, which the surviving spouse takes.

Where the deceased is survived by more than one spouse, a child’s share in relation to the intestate estate of the deceased is calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased who have either survived or predeceased the deceased, but who are survived by their descendants, plus the number of spouses who have survived the deceased. Each surviving spouse inherits whichever is the greater of

• a child’s share;
• an amount fixed from time to time by the Minister (presently R250 000).

The descendant or descendants inherit the residue (if any) of the intestate estate. Where the assets of the deceased are not sufficient to provide for each spouse with the amount fixed by the Minister, the estate is divided between the surviving spouses.

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.

No spouse, no descendants; both parents survive the deceased

Where the deceased leaves neither a spouse nor a descendant, but is survived

• by both his parents, they inherit the intestate estate in equal shares; or
• 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.

In relation to the descendants of a parent of the deceased, division of the estate takes place per stirpes. Representation is allowed ad infinitum.

No spouse, no descendants; only one parent survives; deceased parent leaves descendants

In this case, the surviving parent will inherit half of the estate, and the descendants of the deceased parent will inherit the residue per stirpes by representation.

X is the deceased in question. His estate is worth R300,000. F will receive his half share of R150,000. M is the deceased mother, so her half-share will be divided equally between her descendants. Therefore, C and A will each receive R75,000.

In this case, the surviving parent is the sole heir.

No spouse, no descendants, no parents; both parents leave descendants

X is the deceased in question. His estate is worth R300,000. Half of the estate goes through M and the other half through F, as they are the parents of the deceased. Y, Q, A and B will receive R37,500 each through F’s line, as they are all descendants of F (R150 000 divided by four). A and B will receive R75,000 each through M’s line, as they are both descendants of M (R150 000 divided by two). Thus overall Y and Q will receive R37,500 each, while A and B will receive R112,500 each (R37,500 plus R75,000).

Where the deceased is not survived by a spouse or descendant or parent, but is survived by descendants of his parents (by a brother or sister, for example, whether of the full or half blood), the intestate estate is divided into halves, one half going to the descendants of the deceased father by representation, the other half to the descendants of the deceased mother. The full brothers and sisters of the deceased consequently take a share in both halves of the estate, while the half-brothers and -sisters take a share in one half only of the estate. If, however, all the surviving descendants are related to the deceased through one parent alone, such descendants inherit the entire estate. Thus, for example, if there are no full brothers or sisters, but merely a half-brother of the deceased on his mother’s side, the half-brother will take the whole estate to the exclusion of more remote relatives such as grandparents, uncles or aunts.

No spouse, no descendants, no parents; one parent leaves descendants

A and B will inherit the entire estate in equal shares.

In this case, the descendants of the parents will inherit the entire estate in equal shares. The descendants inherit per stirpes by representation.

No spouse, no descendants, no parents, no descendants of the parents

E dies intestate. E’s spouse (V), mother (M), father (P), brother (A) and grandfather (C) predeceased him. E is survived by his grandmother (B), great-grandmother (D and great-grandfather (F). Who inherits E’s estate? Look to the people still alive: B is related to E in two degrees; D and F are related to E in three degrees. Since the nearest blood relative is the one who inherits, B will inherit everything from E.

Where the deceased is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree inherit the estate in equal shares (per capita). The degree of relationship between the parties is,

• in the direct line, the number of generations between the deceased and the ancestor or descendant (as the case may be); and,
• in the collateral line, the number of generations between the blood relation and the nearest common ancestor, plus the number of generations between that common ancestor and the deceased.

A parent or child of the deceased would thus be related to him in the first degree, a grandparent or grandchild in the second degree, an uncle or aunt in the third degree, and so on.

No spouse or living blood relatives

If there are no relations of the deceased, by blood or by adoption, and no surviving spouse, the fiscus or State is entitled, after the lapse of thirty years, to claim the estate as bona vacantia (unclaimed property) in terms of the common law. The authority for this is the case of Estate Baker v Estate Baker. In these circumstances the State is not an “heir,” and the estate is not “inherited.” It merely accrues to the State.

Limitations

While testators in South Africa enjoy a wide freedom of testation, this freedom is subject to certain limitations. These limitations can be divided into statutory and common law limitations and include conditions that interfere with a beneficiary’s marital relationship and conditions limiting a beneficiary’s freedom of movement. The common-law limitations are also entrenched in the Constitution. Certain indirect limitations, such as those imposed by the maintenance of children and the Maintenance of Surviving Spouses Act, may also be found.

Delegation

The testator may also delegate his or her freedom of testation to a certain extent by conferring the power of appointment upon other persons.

Customary law

A person living under a system of customary law is free to make a will regarding customary property. The principles regarding power of appointment should, however, be kept in mind in such instances.

Mental ability of the testator

As stated in section 4 of the Wills Act, the testator must have the requisite mental ability. There is a rebuttable presumption that the testator is competent. 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. This obviously depends on the circumstances of each case.^[41][42]

Undue influence on the testator

If there is undue influence exerted on the testator (physical, mental or otherwise), the testator will lack the requisite capacity. The will will be declared invalid.^[43][44]

Requirements for a testamentary disposition

The four requirements for a testamentary disposition are

• compliance with statutory formalities (i.e. the Wills Act);
• a description of the property bequeathed;
• the extent of the interest in the property bequeathed; and
• the identity of the beneficiary.^[45]

Methods of executing a valid will

Accordingly, there are five methods by which the testator may execute a valid will:

1. The testator signs the will in the presence of two witnesses.^[46] All three people (the testator and the two witnesses) must be in the same place at the same time, as all three sign the will.
2. The testator acknowledges in the presence of two witnesses his signature previously placed on the will.^[47] The testator is merely to acknowledge in the presence of the witnesses that he signed the will earlier, and that the signature on the will is his.
3. Someone else signs on behalf of the testator in the presence of two witnesses and it is certified by a commissioner of oaths.^[48] Schedule 1 of the Act contains a certificate which must be completed by a commissioner of oaths stating the identity of the testator and that it is in fact the testator’s last will and testament.
4. Someone else signs on behalf of the testator and acknowledges in the presence of two witnesses his signature previously placed on the will which is then certified by a commissioner of oaths.^[49] Thus the testator may sign the will himself either before or in the presence of the witnesses, or another person may sign on behalf of the testator either before or in the presence of the witnesses, provided the will is certified by a commissioner of oaths.
5. The testator signs by making a mark in the presence of two witnesses and it is certified by the commissioner of oaths.^[50] The testator may make a cross, a thumbprint or any other mark as a “signature.” This is actually very common due to the high rates of illiteracy in South Africa.

Signing and signature

In terms of section 2(1)(a)(i), a will is not valid unless it is signed by the testator or someone else (a proxy) on the testator’s behalf. Where a will is signed by a proxy, the latter must do so in the testator’s presence and by the testator’s direction. For all persons involved in the execution process, a “signature” includes the making of an initial; in the case of the testator, it also includes the making of a mark, such as a cross or a thumbprint, but in that event the will must be certified as set out below.

The will must be signed by the testator or the proxy, or be acknowledged by the testator, and (if applicable) the proxy, in the presence of two or more competent witnesses present at the same time.

The witnesses must attest and sign the will in the presence of the testator and of each other, and, if the will is signed by a proxy, in the presence also of the latter. A witness, unlike a testator, may not sign by making a mark.

If there is more than one page to the will (other than the page on which it ends), the testator or proxy must sign or make a mark on each and every page of the will.^[51][52]

It is unclear from the Act^[53] whether witnesses are required to sign on every page or just at the end of the will, as it just says that they must sign the will. 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.

Certificate

When a testator signs his will with a mark, or by proxy, a certificate from a commissioner of oaths is required, in which the commissioner certifies that he or she is satisfied as to the identity of the testator, and that the document is the will of the testator. In terms of the Wills Act, the commissioner must sign anywhere on every page of the will. The certificate must be completed as soon as possible after the will is signed by the testator or the proxy. Should the testator die before the certificate is made or completed, the commissioner must as soon as possible thereafter complete the certificate and sign the will as indicated above. The importance of this requirement was seen in the case of Tshabalala v Tshabalala.

The commissioner of oaths may not act in a dual capacity as witness, for witnesses are required to attest and sign the will in the presence of the commissioner. In these circumstances, therefore, four persons are required to sign in order to validly execute the will: the two witnesses, the testator placing a mark (or person signing on behalf of the testator) and the commissioner. However, there appears to be no reason why an instructing attorney who drafts a will cannot also commission it.

Witnesses

Two witnesses are required for the valid execution of a will. The witnesses must be at least fourteen years of age—recall that a testator must be at least sixteen to execute his own will—and must be competent to give evidence in a court of law. In terms of section 4A of the Wills Act, a witness to a will and the witness’ spouse cannot take any benefit under the will. The witnesses are required only to sign the last page.

Revocation

When a testator executes a document in accordance with the formalities for a will, the document remains in existence as the testator’s will until such time as the testator

• decides to revoke it; or
• manifests this revocatory intention in one of the recognised acts of revocation.

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.

If the testator intends to revoke his or her will but does not carry out one of the recognised acts of revocation, a court can make an order in terms of section 2A revoking the will for the testator if there is proof of the testator’s revocatory intention, provided that the requirements of section 2A are satisfied.

The requirements for a court to intervene in terms of section 2A are different from those which apply in terms of section 2(3). The issue of whether or not section 2A can be applied in circumstances where the testator revokes a portion of his or her will and simultaneously introduces new testamentary provisions in place of the revoked provisions is problematic.

Alteration or variation

It is possible to alter or vary a valid will at any time after the will is executed. It is preferable merely to execute an entirely new will, but such an amendment is possible.

Incorporation by reference

Since all the pages of a will must be executed in compliance with the necessary formalities, a testator may not incorporate into a will, by reference, terms of a separate document, whether or not that document has been formally executed. The question of incorporation arises only when the document referred to contains matters that form an integral part of the will. To be complete and effective, a testamentary disposition must identify

• the property bequeathed;
• the extent of the interest bequeathed; and
• the beneficiary.

Where one of these essential matters is left to a separate, unattested document, the disposition fails.

Where, however, the document in question contains merely incidental matters, it is not an essential part of the disposition or the will; the question of incorporation does not arise at all. Such a document may nonetheless be referred to as part of the “surrounding circumstances” in order to construe or apply the terms of the will. The effect of section 2(3) of the Wills Act, dealing with condonation (discussed above), on the incorporation-by-reference rule is open to discussion.

Lost wills

Where a will has been lost or destroyed, but a copy or draft is in existence, the court, if satisfied that the testator did not intend to revoke the will, may authorise the Master to grant probate of it.

If no copy of the will is available, its contents may be proved by oral evidence, provided that such evidence is very clear and specific. Where, therefore, it was proved that a husband and wife had signed a joint will which was left with their attorney for safe keeping, and that, after the death of the husband, the will could not be found (the probabilities being that the will had been lost or destroyed in the attorney’s office and not removed by either of the testators), the court held that the will was valid; it adopted a reconstructed will.

Inheritance and legacy

There is a particularly important distinction to be made between legacies and inheritances. This distinction plays an important role in the final distribution of an estate. The estate of a deceased person is distributed by the executor by first paying the debts, then handing over the legacies and prelegacies, and finally giving the balance to the heir or heirs.

A legacy is a disposition in a will, to a person termed the “legatee,” of things which are described either specifically or generally. A specific legacy is one of

• a specified thing, such as a farm, a motor car or a particular debt owed to the testator; or
• a specified collection of things, such as a library or a flock of sheep.

A general legacy is a disposition of a class of things described as a rule by number or quantity, such as a thousand sheep, or R1,000. It would seem to follow that a legacy of all the money to the credit of the testator in a particular bank is a specific legacy.

When a legacy fails because the legatee does not want to or cannot inherit his or her benefit (for example, he or she repudiated the legacy or he or she dies before the testator), there are three possibilities:

• a substitute may be provided for in the will or ex lege;
• accrual may take place; or
• the bequest may fall into the residue of the estate and will be inherited by the residuary heirs.

Should a legacy fail, and the testator has not appointed a substitute, or accrual is not possible, the legacy will form part of the residue of the estate, or will form part of the intestate estate to be inherited by the intestate beneficiaries.

A prelegacy is a legacy which is left to an heir in priority to the other heirs, and in addition to any other share of the inheritance which the heir may be entitled to receive.

An inheritance is a disposition in a will, to a person termed the heir, of the residue of the estate, after the debts, legacies and prelegacies have been satisfied. It follows that the heir is in effect a residuary legatee. There may be more than one heir, in which case the shares left to them may be specified to be equal or unequal.

The institution of an heir or heirs is not today essential for the validity of a will. If the will, however, appoints only legatees, and if there is a balance left over after the debts and legacies have been paid or satisfied, there is an intestacy as to such balance. It follows that a person can die partly testate and partly intestate, although there is a presumption in favour of testacy.

An heir may be appointed as from a certain date or event, or until a certain date or event.

The chief difference between the laws relating to inheritance and to legacy arises from the fact that,

• in the case of a legacy, specified or particular property is left; whereas,
• in the case of an inheritance, the property is not specified, but consists of such property as happens to belong to the testator, or a fractional portion of such property.

It follows that, if the testator bequeaths specified property which does not in fact belong solely to him, problems arise which are not met with in inheritance.

Prior and legal rights

The Roman-Dutch notions of legitimate portion^[70] and lex hac edictali^[71] in testamentary succession were abolished at the turn of the 20th century under the influence of English law. 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.^[72]

Vested, conditional and future interests

An interest or benefit under a will may, on the death of the testator, either vest in the beneficiary immediately, or be contingent upon the fulfilment of some condition. If vested, it may be enjoyable presently, or in the future only.

Vested interests

A vested interest refers to an inheritance right which has become unconditionally fixed and established in the beneficiary, with the result that it forms an asset in the beneficiary’s estate; it may be disposed of by him or her inter vivos or mortis causa; and it is normally transmissible to the beneficiary’s heirs on his death (unless the right is purely personal to the beneficiary, such as a usufruct).

The terms dies cedit and dies venit are very important when dealing with vesting of rights.

• The phrase used to indicate that a right has vested is dies cedit, which indicates that the day or time has come when the right is due or owing.
• Another phrase, dies venit, denotes that the time for enjoyment of the thing has arrived; that is to say, that the possession and use of the thing may be claimed.

If the right has vested, but its enjoyment is postponed to the future, there is dies cedit but not dies venit. The time for enjoyment can, of course, arrive only after or simultaneously with vesting. When it does arrive, there is both dies cedit and dies venit. If there has been no vesting it follows that dies nec cedit nec venit.

Conditional interests

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. This intention is gathered from the language of the will. A testator may postpone dies cedit or dies venit, or both, by means of conditions or time clauses (terms), and may make a specific benefit dependent on a condition, or may link it to a term or period of time.

Suppose that the testator leaves an interest subject to a condition. A condition is a provision that, on the occurrence or non-occurrence of some uncertain future event, a right shall either be conferred or be discharged. There must be uncertainty as to the event, either because it may never happen, or because, although it must happen, it may not happen before some other specified event, such as the death of a particular person, takes place. 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.”

The most common form of condition found in wills is “if A survives B” (B being some specified or determinable person). The effect of an interest being left conditionally is that it vests, dies cedit, only when the condition has been fulfilled. Prior to the fulfilment of the condition, there has been no dies cedit (or dies venit), and the beneficiary acquires merely a contingent right to the benefit. Suppose, then, that the testator leaves “R1,000 to my son if and when he attains the age of 21.” Upon the death of the testator, and if the son is alive but under twenty-one, he acquires no vested interest. Consequently, if he dies before reaching that age, nothing is transmissible to his heirs. If, however, he attains the age of 21 dies cedit, and the legacy thereupon vests in him. The same principles are applicable where an interest is left “to Armand and upon his death after the testator to Lara.” Lara acquires a vested interest only if she survives both the testator and Armand.

The conditions mentioned above are suspensive. A resolutive condition also may be attached to an interest: for example, where a usufruct is left to a widow “provided our children continue to reside with her.” In such a case, the usufruct vests in the widow on the testator’s death, but not absolutely for her lifetime; on the fulfilment of the resolutive condition, a divesting takes place.

There is a distinction, then, between suspensive and resolutive conditions, with regard to their influence on dies cedit and dies venit. There is also a distinction between suspensive and resolutive time clauses with regard to their influence on dies cedit and dies venit.

• Suspensive conditions: The right does not vest in the beneficiary until the condition is fulfilled. For example, X bequeaths his farm to Y on condition that Y obtains an LLB degree. If Y does not get an LLB degree, he will never obtain a right to the farm.
• Resolutive conditions: The bequest terminates on the fulfilment of the condition. For example, A bequeaths his farm to B. If B remarries, the farm will devolve on C. Thus B has a vested right to the farm until fulfilment of the condition.

Nudum praeceptum

If a testator places a prohibition on a bequest but fails to say what should happen with the bequest if the prohibition is contravened, it is said that the prohibition is nude (nudum praeceptum). In other words, the prohibition is of no effect, and the beneficiary will receive the bequest free from any prohibitions.

Estate massing

Estate massing takes place when two or more testators combine or mass the whole or parts of their estates into one consolidated unit and then dispose of it in terms of their mutual will:

In the case of common-law estate massing, a real right is transferred to the survivor. In the case of statutory estate massing,^[75] a limited right is transferred to the survivor.

Since estate massing places a burden on the survivor, the doctrine of election comes into play. The survivor has to adiate or repudiate the massing before there can be any legal consequences.

Customary law

The same principles are applicable to testators living under a system of customary law.

Testamentary devices

We have dealt thus far with the differences between conditional, vested and future interests, since these distinctions must be known before we can appreciate the effect of the various types of dispositions in wills which dispose of interests of a more complicated nature than a simple and unconditional institution of heirs or of legatees.

A testator frequently does not dispose of the full ownership of his assets to any one or more persons, particularly in the case of landed property; he grants interests in the property less than full ownership, such as

• usufruct;
• successive interests, known as fideicommissary substitutions; or
• interests in the alternative, known as direct substitutions.

These various interests will be treated first; thereafter combinations of the various interests.

Bequests subject to a modus

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. The addition of a modus to a bequest does not make it conditional. Consequently, the legacy vests in the legatee on the testator’s death; no fideicommissum is created in favour of the persons intended to be benefited.

The modus has to be distinguished from a condition. The modus can manifest itself in different forms:

• in the interest of the beneficiary himself;
• in the interest of a specific person; or
• in the interest of an impersonal purpose.

Interpretation of some common dispositions in wills

Frequently the language used in a will is not sufficiently clear and unambiguous for the executor to determine what interests in property are disposed of, or who the beneficiaries are. In such a case, it is necessary for the court to interpret the will. 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. In order to ascertain this intention, where the will is ambiguous, recourse is had to certain presumptions and canons of construction which have long been accepted in the interpretation of wills. 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.

Implied fideicommissa

In spite of the fact that there is a presumption against fideicommissa, nevertheless a fideicommissum is implied by law in favour of particular persons in the case of certain dispositions. 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.

Statutory aids to interpretation

The Wills Act contains several provisions that serve as interpretative aids when construing wills. Unless the context of a will indicates otherwise, when interpreting a will,

• an adopted child must be regarded as being born of its adoptive parents, not of its natural parents;
• the fact that a person was born out of wedlock is not taken into account when determining his or her relationship with the testator or another person;
• if a benefit is left to the children of a person or to members of a class of persons mentioned in a will, it is presumed that the benefit was intended to vest in the children of the person or in 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.

Combinations of various interests

Various interests (usufructuary, fiduciary, or fideicommissary) relating to the same property may be combined. Each of these interests may be made subject to direct substitutions. The following are examples of the less complex of these combinations.

Rights of heirs

On acceptance or adiation of the inheritance, the heir obtains a vested right to claim from the executor payment or delivery of all the property in the estate after satisfaction of the debts and legacies. But the heir’s claim is enforceable only when the liquidation and distribution account has been confirmed. Where there is more than one heir, each has this right in respect of his proportionate share.

Rights of legatees

On the acceptance of a legacy, a legatee obtains a vested right to claim from the executor delivery of the specific asset bequeathed to him or her, or registration in the case of immovable property; this claim is enforceable only when the liquidation and distribution account has been confirmed.

Where the assets in the estate are sufficient to satisfy all the legacies, pecuniary and corporeal, in full, there is no difficulty as to each legatee obtaining delivery of the bequest; but problems arise where the property specified as being bequeathed did not in fact belong to the testator at all, or only belonged to the testator jointly with other persons.

Where the testator leaves as a legacy specified property which belongs in fact to a third person, but which the testator in error thought he or she owned, the legacy is void; if, however, the testator knew that the property belonged to a third person it is the duty of the executor to buy the property from the owner at a reasonable price and to hand it over to the legatee, and if unable to do so to pay the legatee its value. If the property had been mortgaged or pledged, and the testator was aware of that fact, then unless a contrary intention appears from the will it is the duty of the executor to discharge the debt and to hand over the property free to the legatee.

If the property specified belongs to the residuary heir then, whether the testator knew or did not know that fact, the legacy is valid. The heir, however, has an election to accept or to refuse the terms. If the heir accepts the inheritance, the heir must allow his or her own property to go to the legatee; if the heir refuses to adiate and retains his or her own property, the heir cannot accept any benefit under the will.

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. There is a presumption in such a case that only the testator’s share is bequeathed if it is doubtful from the will whether the testator intended to burden his or her estate with the duty of buying out the co-owner’s share. This presumption may, however, be rebutted and more easily so where the testator bequeaths property belonging jointly to the testator and his or her spouse. If the property bequeathed belongs jointly to the testator and to the residuary heir, the whole of the property is deemed to be bequeathed; but the heir has an election whether to accept the terms of the will or to keep his or her share of the property.

If the property belongs to the legatee himself the legacy is void, unless the testator had some real right, such as a mortgage, in the property; in that case the testator is deemed to remit such right and to leave the property unburdened to the legatee.

Rights of fiduciaries and fideicommissaries

Under a simple form of fideicommissum the right of the fiduciary (as stated earlier) vests on the death of the testator; the right of the fideicommissary vests only upon the fulfilment of the attached condition, which is almost invariably that the fideicommissary be alive at the death of the fiduciary, whereupon the fideicommissary becomes the unconditional owner of the property. Likewise, if the fiduciary for any reason fails to take or renounces his or her rights, the inheritance passes to the surviving fideicommissaries, provided that the latter class is then ascertainable and that there is no other provision in the will postponing vesting or enjoyment of the interest. Pending the vesting in the fideicommissary, the right and duties of the parties are as follows:

The fiduciary acquires a resolutive ownership; he or she has the right to possess the property, to use it and take the fruits, but not to depreciate it. The fiduciary may not alienate or mortgage the property except in the following cases:

• Where the will confers the right of alienation on the fiduciary either expressly or impliedly, as in the case of a fideicommissum residui, when the fiduciary may alienate three-quarters of the property.
• Where all the persons, being majors, who are interested in the fideicommissum agree to the alienation, provided that the fideicommissum was imposed for their benefit and for no other reason. It follows that the fideicommissum may generally be extinguished by the joint act of the fiduciary and the fideicommissary. It must be noted that what is termed a “family arrangement” between the beneficiaries which purports to effect substantial deviations from the provisions of a will are as a rule not lawful; but special considerations arise in connection with fideicommissa permitting such departures.
• With the authority of the court on the grounds of necessity (ob causam necessarium),
  • to pay the debts of the testator and to make provision for the legacies bequeathed by him or her when there is no other property available for the purpose;
  • to pay taxes imposed on the property;
  • to pay expenses which are necessary for the preservation or protection of the property; or
  • to provide necessary maintenance for the children of the fiduciary where the latter is indigent.
• The court has power, by virtue of statute, to remove or modify testamentary restrictions on immovable property in certain circumstances, inter alia where it will be to the advantage of the persons, born or unborn, certain or uncertain, who are beneficiaries under a will.

The fiduciary’s rights are subject to the rights of creditors. Hence execution may be levied against the fiduciary’s rights in pursuance of a judgment obtained against him or her. On the insolvency, the fiduciary’s rights vest in his or her trustee (unless the will provides otherwise) and they may be sold subject, of course, to the rights of the fideicommissary. A fiduciary, again, may let the property for the period of his or her right, but not beyond the same. Consequently, the fiduciary may not grant a lease which is entitled to registration, such as a lease in longum tempus, with the exception of a lease for his or her own life.

The fiduciary, if called upon, must give security for delivery of the property to the fideicommissary when the condition is fulfilled unless

• under the will the fiduciary is entitled to alienate the fideicommissary estate;
• the testator has dispensed with the requirement of security; and
• the fideicommissary is the child, brother, or sister of the fiduciary.

In the case of a fideicommissum residui, security for a quarter only of the property need be given. In the case of immovable property, it is the duty of the executor to have the terms of the fideicommissary disposition registered or endorsed against the title deeds of the property, and consequently there is probably no necessity for security to be given.

If the estate of the fideicommissary heir or legatee is sequestrated, his or her contingent interest does not vest in the trustee; but if the interest becomes vested while the estate is under sequestration, it ipso facto passes to the trustee.

A fideicommissary has prior to the vesting of his or her interest only a contingent right to the property (sometimes referred to as a mere spes or expectation of benefit). If, however, any attempt is made by the fiduciary or by any third persons to infringe the rights of the fideicommissary the court will give the latter ample and effective protection. Thus the court will interdict a threatened alienation of the fideicommissary property, and it will refuse to grant execution against the property in respect of a judgment obtained against the fiduciary. Similarly the court will generally not allow the fiduciary to mortgage the property, for the fideicommissary is not liable for the debts of the fiduciary; but as pointed out earlier, there are circumstances in which the court may consent to the mortgage or sale of the fideicommissary property. The contingent right of the fideicommissary may be ceded and such cession need not be notarially executed.

Jus accrescendi

Jus accrescendi, or the right of accrual, is the right of beneficiaries to whom an interest in property has been left jointly to take the share of one of them who fails to take his or her 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.

Where the jus accrescendi operates the co-beneficiaries to whom the vacant portion accrues take the same shares thereof as they do of their own portion. Where it does not operate the share vacated by a co-heir devolves upon the intestate heirs of the testator, while the share vacated by a co-legatee falls into the residue of the estate and devolves upon the heirs, testate or intestate, of the testator.

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. Accrual can, however, only operate if provision is not made for substitution either by the testator himself or herself, or ex lege through the operation of section 2C of the Wills Act.

Whether or not accrual operates in certain circumstances depends on the intention of the testator as it appears from the will. The testator may make some express provision on the point. If the intention of the testator is not clear, his probable intention must be deduced from certain indications in the language of the will itself, or from the surrounding circumstances. To assist the court in ascertaining the testator’s probable intention various canons of construction or conjecturae have been evolved, the most important of which concerns the method of joinder of the beneficiaries. The mode in which beneficiaries are joined is only one of the indications, although an important one, in ascertaining the probable intention of the testator. It must be stressed, however, that these conjecturae are merely guides and not hard and fast rules of law.