LAW OF SUCCESSION – CPLB031

TEACHING NOTES

2024 – SEMESTER 1
 CONTENT OF WILLS

TOPICS

1. INTRODUCTION
2. VESTING OF RIGHTS
3. BEQUESTS
3.1. Absolute bequests
3.2. Lapsing of a legacy
3.3. Time clauses
4. CONDITIONAL BEQUESTS
4.1. Resolutive conditions
4.2. Suspensive conditions
5. NUDUM PRAECEPTUM
6. MODUS
7. ESTATE MASSING
7.1. section 37 of the Administration of Estates Act, 1965
7.2. consequences of massing

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 LEARNING OUTCOMES
At the end of this chapter, the following learning outcomes should be achieved;
 Students must be able to distinguish between the two types of dies and understand
the effect of each in a changing set of circumstances;
 Students must understand the various powers and scope of bequests that a testatrix
can make in a will;
 Students must be able to identify, distinguish and apply the different types of
conditions that a testatrix may impose on beneficiaries in a will;
 Students must be able to identify, distinguish and apply the different types of time
clauses that a testatrix may make in a will;
 Students must understand the scope of nude prohibitions and determine how they
differ from conditions imposed on a beneficiary;
 Students must understand the scope of modus and determine how they differ from
conditions imposed on a beneficiary; AND
 Students must understand the requirements and application of estate massing.
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 1. INTRODUCTION

There is an almost unfettered freedom of testation in our law. This is, of course, subject to a few general legal provisos which includes
but not limited to statutory limitations and the boni mores test. The corollary result of this unfettered discretion is that by and large, the
contents of testamentary bequests may vary greatly in some circumstances. As highlighted throughout our study thus far, the intention
of the testatrix remains the most important consideration in the interpretation of testamentary documents. Notwithstanding this, however,
certain features of testamentary documents have become common cause. This has, as shall be evidenced by a will, enabled scholars in
this area to conjure up names for the clauses.
Be that as it may, the naming of clauses has not in any way deprived the testatrix of their freedom. It is for this reason that one cannot
easily predict the outcome of the interpretation of a concept in every single will as the use of these concepts and their meaning depend
on the testatrix’s intention. The effect of freedom of testation and the underlying principle of succession (intention of the testatrix) almost
renders the stare decisis doctrine inefficient in the law of succession.

Against this background, consider some of the common features of a will.

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 2. VESTING OF RIGHTS

Vesting mean that a person becomes the holder of a right. The determination of when that right actually entitles the person to its enjoyment
depends on the intention of the testatrix as evident from surrounding circumstances. Two operative terms are important in answering this question
of vesting. Vis;
 Dies cedit which means the day or time WILL come when the right is due or owing; AND
 Dies venit which means the time for enjoyment HAS arrived.

The testatrix may postpone either or both of these moments. However, in the absence of clear stipulation to the contrary, the presumption in law is
that the testatrix had intended the benefit to vest on the beneficiary on his death. Consider the following on the application of time on the bequests.

i) Dies cedit affects whether the beneficiary may transfer rights received

If there is no condition attached to a testamentary bequest, then the beneficiary acquires both a vested right and the right of enjoyment
immediately after the death of the testatrix. However, where there are conditions attached the application of both dies cedit and dies venit will

depend of the type of condition. Therefore, an appreciation of the types of conditions is very important in the
understanding of these dies.

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If a benefit is made subject to a suspensive condition, then both dies cedit and dies venit are suspended. For example,
“I bequeath farm Zeefontein to my uncle, Makiba, on the condition that he obtains a degree in
financial management”. On this example, Makiba has no vested right to the bequest unless and until he fulfils the condition
attached. Thus, if Makiba dies before he completes a degree in financial management, the farm will not form a part of his estate. Contrast
this with the following example.

“I bequeath my farm Zeefontein to my wife, Avhashoni. Should she remarry, the farm must go to
my uncle, Makiba”. On this example, both dies cedit and dies venit arrives immediately on the death of the testatrix. Therefore,
should Avhashoni pass on without remarrying, her estate will have the extra benefit of Zeefontein.

Play around with the dies and probable scenarios to further enhance your understanding.

ii) Accrual does not operate once a beneficiary’s rights have vested

Once dies cedit has arrived, the beneficiary acquires a personal right to the bequest. Therefore, should s/he pass after that period,
his/her estate will have the benefit of that bequest. However, where there are conditions attached to the bequest and the person passes
before dies cedit the benefit will accrue according to the testatrix’s intentions.

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iii) Vesting as a solution to distribution of surplus capital

This occurs where the testatrix makes bequests subject to time clauses. The dies cedit would arrive at the specific moment indicated in
the will. For example,

“the trust created must, on the 2nd of January every year after my death, make available an
amount of R100 000 towards Bohlale’s education. When Bohlale turns 21, the remaining
amount in the trust must be made available to her ”. Both dies cedit and dies venit arrive on the 2nd of January
however, complete enjoyment is deferred to the year when Bohlale turns 21.

iv) Vesting as a solution to issue of acceleration of interests

Where a beneficiary repudiates a benefit in which he was to act in an interim capacity, the intended benefactor’s claim becomes
accelerated. Thus, dies cedit would arrive immediately after the repudiation has occurred. The question of dies venit would depend on
the nature of the object being bequeathed.

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 3. BEQUESTS

The testatrix retains the freedom to decide how her estate should devolve. She may, as such, decide on a variety of ways regarding this
devolution. This chapter discusses these ways.

From the outset, it is important to distinguish between legatees and heirs. This distinction is quite significant in the process of

administration of estates as it affects the order of payment of beneficiaries. Legacies enjoy preference over
inheritances. Once creditors are paid, the legacies are next in the packing order.
3.1. absolute bequests

This is the most basic testamentary bequest. There is nothing standing in the way of the beneficiary receiving his/her benefit. Practically,
on the death of the testatrix, the beneficiary acquires a vested right (dies cedit) and only gets to enjoy that benefit at the time of
distribution (dies venit).

3.2. lapsing of a legacy

Ademption

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As noted previously, ademption only occurs when the object is sold voluntarily or for convenience. However, if the item is sold in
execution of a judgment debt, then the legatee continuous to have a claim against the estate for the value of that item or a new item if it
can be purchased.

Legatee dies before vesting

Refer to the first example of Makiba above.

One of the ground rules of succession is that the beneficiary must be alive to inherit. If one is to predecease the testatrix, this obviously
mean that s/he cannot inherit. Be mindful of the provisions of section 2C of the Wills Act.

Legatee repudiates

Be mindful of section 2C.

Legatee is incompetent to inherit

Where the legatee is disqualified for killing the testatrix, for example, that legacy lapses.
Bequeathed object is destroyed

Where the bequeathed object cannot be found, there is a rebuttable presumption that the testatrix revoked.

testatrix’s estate is insolvent

The creditors must be paid first. So where there is nothing left for named beneficiaries, the benefit fails.

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3.3. time clause

The time clause may either suspend or terminate either or both the dies cedit and dies venit. What is certain though, is that the time will
arrive!
Suspensive time clause
This occurs where the enjoyment of the benefit is deferred to a later date. It must be noted though that here only dies venit is suspended.
Therefore, should the person pass before s/he actually gets to enjoy that benefit, his or her estate will benefit from the testamentary bequest.

Example: I transfer my farm, Erf 1442 Bochum, to my aunt, Dudu. The farm and all rights of
ownership must be transferred to her on her 40 th birthday.
Resolutive time clause
The death of the testatrix marks the arrival of both dies cedit and dies venit. However, what happens here is that the beneficiary’s rights
terminate on the arrival of that certain time. A practical example of this clause is when a person is made a beneficiary of something until a
specific age or death, whichever comes first.

Example: I transfer my farm, Erf 1442 Bochum, to my aunt, Dudu. On her 40 th birthday or on her
death, whichever comes first, the farm must pass to my niece Ntswaki.

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 4. CONDITIONAL BEQUESTS

What distinguishes conditional bequests from time clauses is the certainty element. As far as conditions are concerned, a bequest is
made subject to an uncertain future event. Thus, the enjoyment of a bequest is conditioned on the fulfilment of a certain external factor.
Likewise, there are suspensive and resolutive conditions.

4.1 Resolutive conditions

Refer to the Avhashoni example above. As a recap, both dies cedit and dies venit arrive at the moment of death while the continued
enjoyment of the bequest is conditional upon the beneficiary not doing something. Thus, the beneficiary must refrain from performing the
specific act if she is to continue enjoying the benefit.

4.2 Suspensive conditions

Refer to the first example of Makiba. As a recap, both dies cedit and dies venit are suspended pending the fulfilment of the condition set
out in the will. Thus, for the enjoyment of the benefit, the beneficiary must ensure that s/he meets the condition stipulated.

Academics have long grappled with the question of who must have the benefit of the bequest that is made subject to a suspensive
condition. The overwhelming evidence seems to point to the fact that the heir(s) get to enjoy the benefit until the fulfilment of the
condition. What this means, to a lot of academics, is that a suspensive condition ordinarily has a corresponding resolutive condition.

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In effect therefore, the heir(s) enjoys the benefit until the fulfilment of the condition. This begs the question; is there a restriction on the
type of object that may be bequeathed subject to a suspensive condition? Think about the various possibilities and determine an answer
for yourself.

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 5. NADUM PRAECEPTUM

Literally translated, this means ‘nude prohibition’. This principle comes into play where the testatrix bequests a specific object on
the beneficiary and then make provision for how the object is to be dealt with. For instance, the testatrix bequests a house to Thabo and
further stipulates that he is prohibited from leaving the house here in Mankweng. However, this type of prohibition is nude because it
fails to provide some degree of cover for the failure to comply with the stipulation. Therefore, the prohibition here will be ignored for
being nude. To be enforced, the testatrix must make provision for what must happen to the bequest should Thabo fail to heed the
prohibition.

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 6. MODUS

A modus is a qualification added to a testamentary disposition which requires the beneficiary to devote property s/he receives in whole

or in part to a specific purpose. The modus may be for the benefit of the beneficiary. Here there is no duty, other
than a moral one, for the beneficiary to fulfil the obligation. The modus may be in the interest of the 3rd party. The 3rd
party acquires a personal right against the beneficiary for the fulfilment of the obligation. An example is where the testatrix leaves an
object to a named beneficiary. However, instead of making its enjoyment conditional, the testatrix saddles the beneficiary with the
obligation to pay a specified amount of money to a named 3 rd party. The beneficiary gets to enjoy the benefit upon the conclusion of the

L&D. However, the 3rd party may enforce his or her personal right through legal action. The modus may be for the
furtherance of an impersonal object. The enforcement of this type of obligations is an administrative nightmare. This is so
because the enforcement hereof is not without problems. The executor and the Master’s office may not have an interest in this type of
obligations, therefore there is only a moral duty on the person to fulfil the obligation set out.
This discussion makes it important to distinguish an obligation from a condition.

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As far as a modus is concerned, there is no effect on the rights of the beneficiary if an obligation is attached to the bequest. However, as
indicated above, conditions have an effect on the vesting and subsequent enjoyment of the benefit. This, of course, depends on whether
a resolutive or suspensive condition is attached to the bequest. Revise this part.

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 7. ESTATE MASSING

Often used by couples married in community of property . However, it is not a prerequisite for massing that the people be married or
be so married in community of property. The following three requirements are set for estate massing. To wit

1. The parties must have the intention to consolidate their estates;

2. There must be a disposition of the entire estate on the death of the first dying joint testatrix; AND

3. The surviving testatrix must adiate the massing.

In effect, estate massing is the manifestation of the doctrine of election. Thus, the surviving testatrix has choices. Vis to adiate and therefore
accept the benefit and the burden OR to repudiate both the benefit and the obligation. In weighing up her choices, the surviving testatrix must bear in
mind that by adiating, she loses the right to make a separate will. To some degree, estate massing compromises the testatrix’s freedom
of testation in the sense that once she opts to adiate, she may not at any stage change her mind to dispose of her estate according to the changed
wishes.

By massing their estates, testatrix may create different legal concepts of property ownership or enjoyment;

4. Usufruct; the massed estate is bequeathed to a testamentary heir subject to a usufruct being created for the surviving testatrix.

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2. Fideicommissum, the massed estate is bequeathed on the surviving testatrix on the understanding and direction that it passes to someone else on
the death of this surviving testatrix;

3. Trust, the estate is massed and a stipulation is made in the will that on the death of the first dying testatrix, the estate shall be transferred into a trust
to be administered by a trustee. The surviving testatrix draws an income from the trust for as long as she is alive.
4. Unlimited rights, this occurs were the surviving testatrix actually receives an unbound benefit from the estate. Thus, a specific item is given to the
surviving testatrix. In this way, the surviving testatrix retains her freedom of testation in that she is free to dispose of the asset in a manner she deems
fit.

7.1. section 37 of the Administration of Estates Act, 1965

 There must be a mutual will.

 As a general rule, the mutual will must give the survivor limited interest iro the property in the massed estate. Therefore the
operation of section 37 does not extent to cover instances were unlimited rights are created for the surviving spouse.

 The survivor must adiate.

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7.2. consequences of estate massing

As mentioned above, if the survivor adiates, s/he losses the power to alter or revoke the mutual will. Because of the invasive nature of
estate massing, there is a presumption of law against it. The rationale is that no person can deprive herself of the freedom of testation.
Therefore, in cases where there is doubt whether there is massing, the will must be interpreted in a manner that allows the greatest
possible measure of freedom of testation. See Rhodes v Stubbs.

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 CLASS ACTIVITY
1. Ratang plans to make a will distributing her vast riches to her family. She is concerned however that her children
in particular will exhaust their inheritances in no time and become candidates for ‘I blew it’ television program. She
wants to ensure that at the very least some degree of delay or control must be exercised to curb their spending. She
is mostly concerned about her farm with all its agricultural possessions. She tells you the following things to
consider in writing the will for her;
 She wants her husband to have a lifelong usufruct on the farm. However, she tells you that the usufruct must be
cancelled if he remarries;
 She wants her eldest son to inherit the farm provided that he completes an agricultural science degree;
 She wants her daughter to inherit and manage the family store in Polokwane when she turns 18. The inheritance
should pass on to her eldest child when s/he (the grandchild) turns 18 or on her (the daughter) death;
 She does not wish for any of the named beneficiaries to leave the assets inherited;
 She wishes that every year after her death, the family may have a ‘thanksgiving’ ceremony on a date they may
determine.
Discuss in detail what the scope of each of these wishes mean. Furthermore, reflect on effect of the different dies in
respect of each of these wishes.
2. Ratang and her Husband, Thato, want to make a will together. Advice them on the option of estate massing as a
viable choice for parties married in community of property.

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