Statutory provision has been made for the protection of trust property which is settled upon a person either inter vivos or by will, to be administered by him or her for the benefit of other persons. 2. A testator may amend a will at any time prior to death. The cost of furnishing security is a liability against the estate, and is paid as an administration cost. As a result, the contents of wills may vary greatly. Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O). Heirs occur in both testate and intestate succession; legatees occur only in testate succession. SARS recently considered the question of whether there would be tax To be complete and effective, a testamentary disposition must identify. 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. Intestacy is partial when the deceased has left a valid will which, however, does not dispose of all his assets; in this event there is an intestacy as to the undisposed residue. The preferred legatees correspond to the secured creditors, and the other legatees to the concurrent creditors. Each of these interests may be made subject to direct substitutions. The fiction has gained statutory recognition in the Wills Act.[13]. Freedom of testation is the power a testator has to deal with his property as he desires. What does the Inheritance Law practice area entail? Where an heir who stands to inherit along with the surviving spouse (provided that that heir is not a minor or mentally ill) renounces his or her intestate benefit, such benefit vests in the surviving spouse. When a legitimate portion was not provided, the will could be set aside by the action. 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. Animals are not legal persons and, therefore, may not be beneficiaries in a will. 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. The general rule is that the courts are very reluctant to alter a will. Repudiation of an inheritance must be In customary law, the competence of the beneficiary is often linked to the rule of male primogeniture. the High Court. when the testator has left no valid will or testamentary disposition contained in a valid. A testator living under a system of customary law may still use his or her freedom of testation to stipulate that the customary law of succession must be applicable to his or her estate. Collation (collatio bonorum or hotchpot) is an obligation imposed by law on all descendants who wish to share as heirs in the deceased's estate, either by will or on intestacy. With regard to marriages in separation of property,[31] the entire estate devolves according to the rules of intestate succession. In the event of intestacy, the assets are distributed in a definite order of preference among the heirs, as stipulated by the Intestate Succession Act. In this case, the descendants of the heir may represent the heir to inherit. 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. 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. Cameron would want to prove that Armand died before Corbin. If Corbin died after Armand and could first inherit from him, then Cameron, who inherits from Corbin, is in a favourable position. The survivor, however, is not bound to allow the mutual will to be carried into effect. 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. The beneficiary must be competent to inherit. 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.[11]. 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. A codicil is a second or later will, either annexed to the original will or in a separate document. Freedom of testation is not absolute, however. The aggregate of assets and liabilities of the deceased is termed the deceased estate. The net effect of the proposed amendment, it has been argued, is that it elevates same-sex partnerships to a level superior to that of heterosexual life partnerships. 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. The effect of these testamentary devices is that the same thing may be given to more than one person, either concurrently or alternatively or successively. 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. to have adiated. The certificate must be completed as soon as possible after the will is signed by the testator or the proxy. Who inherits in the case of disqualification? The executor becomes the legal ‘owner’ of the assets. Read the full article on Inheritance Law. The mutual will operates in effect as the will of the first-dying party and the survivor is a beneficiary under that will. If, however, all the surviving descendants are related to the deceased through one parent alone, such descendants inherit the entire estate. When receiving a benefit, the heir must sign a receipt; obviously animals are unable to do so. South Africa In South Africa, a ... alimony or inheritance as well as the elective share and get nothing in return. s 2(1)(a)(i) read with s 2(1)(a)(ii) and (v). Furthermore, it is not necessary for the date or place of execution to be recorded, but for practical reasons it is recommended: for example, if a series of wills are executed revoking previous ones. 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. Today the double substitution is superfluous. It follows that the heir is in effect a residuary legatee. If there are insufficient funds in the deceased estate to cover the total maintenance and education of minor children, the children will receive a pro rata amount. There is no longer any distinction between legitimate and extra-marital children; both are now in the same position. First-line collaterals are the descendants of the deceased's parents, i.e., the deceased's siblings and nieces and nephews. 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. In addition, the nasciturus fiction has been codified in the testate law of succession by section 2D(l)(c) of the Wills Act, which provides that any benefit allocated to the children of a deceased shall vest in such children as are alive at the time of the devolution of the benefit, or as have already been conceived at the time of the devolution of the benefit and who are later born alive. 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. This ground rule is linked to the issue of dies cedit and dies venit. 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. Section 1(1)(a) to (f) of the Intestate Succession Act contains the provisions in terms of which a person's estate is to be divided. 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 testator signs by making a mark in the presence of two witnesses and it is certified by the commissioner of oaths. In Braun v Blann & Botha NNO, however, the Appellate Division ruled that ‘it is both historically and jurisprudentially wrong to identify the trust with the fideicommissum and to equate a trustee to a fiduciary’. In other words, the mutual will now comes fully into operation and the survivor cannot revoke his or her share of it. To remedy this state of affairs a vitally important change was made in 1913 by the Administration of Estates Act in respect of mutual wills of spouses married in community of property. The time for enjoyment can, of course, arrive only after or simultaneously with vesting. The survivor is consequently under an obligation (of a contractual or quasi-contractual nature) to allow the jointly disposed of property to devolve in terms of the joint will. If the will appoints more than one heir, the residue is divided among them. The modus has to be distinguished from a condition. A beneficiary, however, whether heir or legatee, acquires no right in the property of the testator unless he or she accepts the benefit. If his wife, at the start of her marriage, has an estate worth R50,000, and at the end of the marriage worth R100,000, the amount accrued will be R50,000. The physical or symbolic destruction of a will constitutes revocation and renders it invalid. In the latter capacity, they have to administer and deal with the balance of the assets as directed by the will. In addition to the ordinary form of fideicommissum described above, two peculiar forms are recognized by the law, a fideicommissum residui and a fideicommissum purum. 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 fideicommissum can be implied by a si sine liberis decesserit (meaning ‘if you die without children’) clause or by a prohibition against alienation in the will.[77]. 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. This is the most difficult circumstance for the court to pronounce on, as it requires a thorough exploration of the testator's intention. [74], Conditions regarding the insolvency of the beneficiary are valid. 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. 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. Any person who has not been nominated as executor in a will, or who has not been exempted from providing security in terms of a will, must furnish security to the Master for the proper performance of their duties. deceased spouse. In such a case, it would be necessary to apply the customary law of succession to the deceased estate. Fill out, securely sign, print or email your affidavit of waiver sample form instantly with SignNow. 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. Any limitation of the power to amend is generally unenforceable. This is both a fideicommissary and a direct substitution in respect of the same persons. In such as case the share of the repudiating If a man dies childless, the custom of ukungena allows for the continuation of his family line. 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. If the testator is at least sixteen years, this is one of the few legal undertakings a minor can assume. Instances where the courts have rendered a person unworthy to inherit are as follows: Below are listed various categories of unworthy persons. Property is bequeathed to a fiduciary on condition that, on his or her death, whatever is left of the property is to go to another person. In these cases, the portion of the will relating to the dispositions by the first-dying is not binding on the survivor, and the latter may revoke his or her portion of the will. 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. This ruling was A conceived but unborn foetus (the nasciturus) is not a legal subject, but the law takes into account the fact that, in the normal course of events, the foetus will one day become a legal subject. The death of the mother is an event which is certain to occur. 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. The transfer of rights (and occasionally also responsibilities) is a prerequisite for succession. The child's right to claim for maintenance and education has preference over all heirs and legatees,[40] and therefore must be determined first. No additional formalities or witnesses are required for the execution of a mutual will. If the survivor accepts the benefits under the mutual will he or she becomes bound by its terms. 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. Section 26 of the Bill also provides that an unregistered domestic partner may apply for an order for intestate succession, and that the court will take into account, inter alia. Certain indirect limitations, such as those imposed by the maintenance of children and the Maintenance of Surviving Spouses Act, may also be found. Where, however, the will has been revoked by destruction, it cannot be revived. 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. Minors who are entitled to make wills may do so without the authority or assistance of their parents or guardians. The wife, however, acquires no vested interest, for her right is conditional on her surviving the mother. A property transfer duty is a tax payable by buyers of all types of properties purchased for more than R900 000. In 1621 the Heeren XVII of the Dutch East India Company instructed the government of the Dutch East Indies to enforce these enactments, and the States-General decreed them to be in force in Cape Colony by the Octrooi of 10 January 1661, which was confirmed by Governor Pasques de Chavonnes on 19 June 1714. In the case of statutory estate massing,[76] a limited right is transferred to the survivor. stipulates two separate elections and he/she repudiates one, he/she A similar disposition is the following one in a mutual will: “The estate is bequeathed to our children, but the survivor of us is to have the possession, the children to have no right to their portions until the death of the survivor.”. The court has the power to make an order of validity to avoid frustrating the will of the testator. [10] The executor, however, acquires the bare dominium only, and not the beneficial use and enjoyment of the assets. decide to execute a joint will in which they state that upon the [35] A clause in a will, or an agreement which seeks to limit a testator's freedom to dispose of his property on death, is unenforceable. cannot be said to be a donation, which would trigger donations tax The appellant provided proof that the document had been sent to him by the deceased, giving the document an authentic quality. The interest of the beneficiary in the property may vest immediately on the testator's death or at some later date, depending on the testator's intention as expressed in his/her will. Family heirlooms, for example, are sometimes passed on to the eldest daughter of the testator; when she dies, they are passed on to her oldest daughter; and so on, in perpetuity. a partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support. This means that if the will In the case of the common law of succession, there is a transfer of rights (and sometimes also responsibilities) which belonged to the deceased. 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 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. It definitely serves as a trigger for me to investigate such changes in the legal landscape in South Africa … Child Custody (Primary Residence) Law South Africa. The addition of a modus to a bequest does not make it conditional. [2] Testate succession is governed by the general premise that the assets of the deceased are distributed in accordance with the provisions of the will. Mondaq uses cookies on this website. the Wills Act); a description of the property bequeathed; the extent of the interest in the property bequeathed; and. On the death of the testator, that person, if alive when the testator dies, becomes the heir, and has a vested claim to the ownership of all the testator's property, subject to payment of the debts. Where the body is present and can be identified, death can easily be proved. If the property specified belongs to the residuary heir then, whether the testator knew or did not know that fact, the legacy is valid. In light of the condonation provisions contained in section 2(3) of the Wills Act, it seems that it is no longer necessary for the will or the reviving document to be properly executed; a court may condone these documents if the requirements of the section are met. It follows that the fideicommissary may claim all of the property originally granted to the fiduciary that remains in the estate of the fiduciary upon the latter's death, even if it is more than a quarter of the original property. similar conditions should be considered carefully so as to ensure Abolishsed: Cape Colony, Act 26 of 1873; Transvaal, Proclamation No. Where there is more than one heir, each has this right in respect of his proportionate share. Section 4 of the Wills Act states that a person has formal capacity to make a will if he is. If a second marriage is entered into, the parties must enter into an antenuptial contract, which will regulate the distribution of the estate. 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 courts in Daniels v Campbell and Hassam v Jacobs, however, have held that persons married in terms of Muslim rites may inherit as if they were spouses proper. Position in Roman and Roman-Dutch Law because of universal succession, which was premised on the fact that the beneficiary inherited not only rights but also duties: the beneficiary was deemed to repudiate unless he … The modern position, therefore, is that a beneficiary has merely a personal right, ius in personam ad rem acquirendam, against the executor; he does not acquire ownership by virtue of a will. 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 deceased may not bequeath these benefits to an heir or legatee. The phrase used to indicate that a right has vested is, successive interests, known as fideicommissary substitutions; or. It is important to note that the interest passes to one or other of the beneficiaries mentioned, not to both of them; it is, as noted above, a case of transfer in the alternative. a person who signs the will as a witness; 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 preferred legatees have preference and are satisfied in full and the balance is divided proportionately among the remaining legatees. where the will does not appoint an heir at all, but appoints only legatees, and a residue is left over after the liabilities and the legacies have been satisfied; where the appointed heir(s) fail to succeed; where an heir is appointed to a fractional portion of the estate only, and there is no other disposition of property; where heirs have been appointed, each to a fractional portion of the estate, and the disposition to one of them is a nullity, or one of them fails to succeed to his share. Where the ius accrescendi operates the co-beneficiaries to whom the vacant portion accrues take the same shares thereof as they do of their own portion. In other words, if a testator dies within three months after his or her marriage was dissolved, and the will was executed before the dissolution, the estate will be distributed in accordance with the provisions of the will, but as if the previous spouse had died before the dissolution of the marriage—unless it appears from the will that the testator had intended to benefit the spouse despite the dissolution of their marriage. The remainder of the assets then pass to persons qualified to succeed him. 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. The most secure digital platform to get legally binding, electronically signed documents in just a few seconds. Waiver of Right of Inheritance Create your own printable contract — FREE! I,_____ , the undersigned, being an heir of the estate of _____, deceased, hereby disclaims my right to receive any property from the Estate of _____, whether by Will or intestate succession and further state as follows: Although criticised, this decision was subsequently followed in numerous cases. 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. In relation to the descendants of a parent of the deceased, division of the estate takes place per stirpes. Transfer of rights and/or duties with regard to assets and/or the status of the deceased, Unlawfully causing or contributing to the death of another. The court noted that the lack of a signature had never, in terms of section 2(3), been held to be a complete bar to a document being declared a will. This distinction plays an important role in the final distribution of an estate. Consider the following example: Corbin and Armand die in a plane crash in which there are no survivors. the will was not made voluntarily). Each surviving spouse inherits whichever is the greater of. If the deceased has not left a valid will or valid document containing testamentary provisions, the deceased dies intestate; similarly, if the deceased leaves a valid will which does not dispose of all property, there is an intestacy as to the portion not disposed of. duty liability would remain the same unless the repudiation A testator bequeaths the property rights to the naked owner (nudus dominus or remainderman), but the right to use, enjoy and take the fruits of the property to the usufructuary. Such a claim is preferent to the claims of heirs and, if the inheritances are insufficient, to the claims of legatees, but it cannot compete with the claims of normal creditors. The 1965 Act, unlike the 1913 Act, is not, it is submitted, confined to spouses married in community of property despite the use of the words “joint estate” in the quoted extract. If, at any time within twelve months prior to death, the deceased resided in any other district, the advertisement must also appear in a newspaper circulating in that district. The presumption in favour of a direct substitution does not arise if it is clear that the testator intended to grant different interests in the same property to two persons, not alternatively but either successively (as in the case of a fideicommissum) or concurrently (as in the case where the ownership is left to one person subject to a usufruct in favour of another); in other words, there is no presumption that the interest of the institute is an ownership subject to a direct substitution, nor is there a presumption that his interest is usufructuary and not fiduciary. an amount fixed from time to time by the Minister of Justice and Constitutional Development (presently R250,000). 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. Representation is allowed ad infinitum. The fideicommissum residui is a form of fideicommissum which constitutes an exception to the general rule that the fiduciary may not alienate the fideicommissary property. 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. where he appoints “my children as my heirs and if any of them predecease me his lawful descendants shall take his share.”. For example, the testator leaves “my estate to my wife for her life, and on her death it is to be divided equally among our children or such of them as may then be alive.” On the testator's death, the usufruct of the estate vests in the widow, and on her death the ownership of the estate vests in the surviving children, these being directly substituted for the original group which consisted of the surviving children and those who predeceased their mother. 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