TOPIC 8

CONTENT OF WILLS

1. Explain what Vesting of Rights entails.

- The word “vesting” means that a person becomes the holder of a right.
- Principes of vesting apply to both testate and intestate succession.
- The date when vesting takes place depends on the intention of the testator as
indicated in their will.

2. Does the fact that a right has vested in a beneficiary mean that they have the right
to enjoy it or that the right already exists?
- No, the fact that a right has vested in a beneficiary does not mean that they have
the right to enjoy it or that the right already exists.
- Vesting consists of 2 sub-moments, namely dies cedit and dies vent.

3. What are the 2 sub-moments that vesting consists of/

- Dies cedit:
o the time when a beneficiary obtains a vested right to claim delivery of the
bequeathed benefit unconditionally.
o The right forms part of your estate
- Dies vent:
o The time at which the beneficiary’s right to claim delivery of the benefit
becomes enforceable.
o When you are able to enjoy the asset
o Example: I leave my car to my son on his 21st Birthday.

4. When does vesting, dies cedit and dies vent occur?

- Unless there is an explicit stipulation to the contrary in a testator’s will, it is
presumed that they intended the bequeathed benefit to vest in the beneficiary
immediately on their death.
- Usually on the death of the testator.
5. Can the testator postpone dies cedit or dies venit?
- The testator may postpone either dies cedit or dies venit or both to any moment
after the date of their death.
- Testator can use clauses to delay vesting:
o Absolute Bequests
o Time clauses

6. Distinguish between an Absolute Bequest and a Conditional Bequest

- An absolute bequest is the simplest and most straightforward way for a testator to
make a bequest and does not contain any conditions.
- A conditional bequest is one which postpones the vesting of rights; vesting will
only take place if and when an uncertain future event occurs.
- A conditional bequest may also terminate a beneficiary’s right on the occurrence
of an uncertain future event.

7. What is a legacy/legatee?
- Where a testator leaves a specific asset to a beneficiary, such as a house, a farm or
a specific amount of money, the bequest is known as a legacy.
- The beneficiary of a legacy is called a legatee.
- A legatee always inherits a specific asset or specific sum of money.

8. What is an inheritance/heir/sole heir?

- Where a testator leaves their entire estate, a portion thereof or the residue thereof
to a certain beneficiary, such a bequest is called an inheritance and the beneficiary
is called an heir.
- Example: “I leave half of my estate to my daughter, Dalia.”
- If a testator leaves their entire estate to a single person, such person is called a sole
heir.
9. Why is it important to distinguish between legatees and heirs?
- The difference between heirs and legatees is important for the process of
administration of the estate as it effects the order of payment of the beneficiaries
and collation.
- Legacies always enjoy preference of inheritances.
- After the executor has paid the testator’s debt, they must first transfer the legacies
to the legatees before transferring the inheritances to the heirs.
- If the legacies are of equal value to the estate after the creditors have been paid
nothing will be left for the heirs.

10. What is a Pre-legacy?

- A legacy that takes precedence over all other legacies and inheritances according
to the testator’s instructions.

11. What is the residue or residuary estate?

- The residue of an estate refers to the pat of the deceased’s estate after the payment
of funeral expenses, all debts, taxes, administrative fees and other administrative
costs, maintenance claims and all legacies have been paid out.
- The reside is what is left in the estate after everything has been paid out and it
includes all bequests that have failed or lapsed.

12. When does a legacy lapse/fail?

- If for some reason an effect cannot be given to a legacy, it depends on the testator
whether the legacy will fail or not.
- A legacy will fail when:
o Ademption: a form of tacit revocation of a legacy when a testator
voluntarily alienates the object of a legacy during their lifetime, causing
the legacy to fail.
o Legatee dies before legacy vests.
o Legatee repudiates the legacy.
o Legatee is incompetent to inherit.
 o Bequeathed object is destroyed.
o Testator’s estate is insolvent.

13. Provide an example of an Absolute bequest

- I leave my house to my daughter, Dalia.
o There are no restrictions/time clauses.
o House = legacy
o Dailia = legatee
- I leave half of my estate to my son, Timmy.
o No restrictions/time clauses/conditions
o Timmy = heir

14. What is a Time Clause?

- If a bequest is subject to a time clause, it is subject to an event that will certainly
happen in the future, although it may be certain or uncertain WHEN it will arrive.

15. What is a Suspensive Time Clause?

- A bequest subject to a suspensive time clause is a bequest from which the
beneficiary will receive the benefit only at a certain future time.
- A bequest subject to a suspensive time clause is a bequest where the beneficiary
will have to wait; they are kept in suspense until a CERTAIN time to receive the
benefit.

16. What is a resolutive/terminative Time Clause?

- A bequest subject to a resolutive time clause is a bequest where the beneficiary’s
rights are terminated when a certain time arrives.
- A beneficiary’s already established rights terminate when a certain time arrives.
17. Provide an example of a Suspensive Time Clause?
- “I leave my farm to my son when he turns 21”.
o Suspensive time clause
o Consequences for vesting of a suspensive time clause?
▪ Dies cedit: immediately.
▪ Dies venit: is suspended until he turns 21.
o If he dies before then?
▪ It will form part of his estate (dies cedit) so it will go to his
beneficiaries.

18. “I leave my husband R1000 payable in 2 years.”

- Suspensive time clause
- Dies cedit: immediately.
- Dies venit: suspended for 2 years.

19. “I leave R1000 to my husband payable upon his death.”

- Suspensive time clause
- Dies cedit: immediately.
- Dies venit: upon his death; it will be paid to his estate.

20. Provide an example of a Terminative Time Clause

- “I leave my house to my husband and in 10 years it must go to my son.”
- Husband’s pov:
o Terminative time clause
o In 10 years’, time he will no longer have the house.
o Dies cedit and dies venit occurs immediately, in 10 years dies cedit and
dies venit is terminated.
21. What is a conditional bequest?
- A conditional bequest is a bequest that depends on a future event which is
uncertain in the sense that it may or may not occur.
- Conditional bequests often contain words such as “if” or “should”.
o “I leave my house to my son IF he graduates with an LLM.”
- It is important to consider the intention of the testator:
o “I leave my house to my son WHEN he obtains an LLB.”
o This is NOT time clause, it is still an example of a condition even though it
does not contain the words “if” or “should.”

22. What are the requirements for a valid condition?

- Needs to be clear and possible.
- Cannot be illegal.
- Cannot be contrary to public policy.
- If the condition fails in one of these aspects it is held to be pro non scripto; the
condition falls away and the bequest is unconditional.

23. What are the 2 kinds of conditions found in wills?

- Terminative conditions
- Suspensive Conditions

24. What is a Terminative Condition?

- A bequest subject to a terminative condition is one in which the bequest is made
to terminate in the event of a particular uncertain future state of affairs.
- “I leave my farm to my husband Mitchell. Should he remarry, the farm goes to my
sister, Amy.”
- “I leave my house to my husband. Should he remarry, he forfeits the house.”
o Dies cedit and dies venit: immediate, only terminates IF he remarries.
25. What is the concept of Nudum Praeceptum?
- It prohibits conduct with a terminative condition without specifying what is to
happen to the asset.
- The consequence of this is that the condition is deemed to be invalid.
- Th husband for example will receive the house without the condition attached to
it.

26. What is a Suspensive Condition?

- If a bequest is made subject to a suspensive condition, the beneficiary does not
obtain a vested, finally established right to the benefit UNLESS and UNTIL a
particular uncertain future event takes place.
- The vesting of the beneficiary’s rights is therefore suspended/postponed until the
uncertain future event occurs.
- Until the condition is fulfilled, the beneficiary has no transmissible right that
would form an asset in their estate on death or insolvency.

27. Provide an example of a Suspensive Condition

- “I leave my portrait collection of my cat, Hannibal to my nephew Farai on the
condition that the marries Peter.”
- Suspensive condition
- However: against the constitution as it forces people to marry in order to inherit
(infringes on their choice to marry)

28. What is the effect of a suspensive and terminative condition?

- The effect of a suspensive condition is usually to postpone dies cedit while a
resolutive condition does not do so.
- The possibility exists for a beneficiary to lose their vested right to a bequest if a
terminative condition is fulfilled.
- A suspensive condition usually has a corresponding terminative condition.
SUBSTITUTION

1. What is Substitution?
- Substitution occurs when a testator appoints a beneficiary to inherit a benefit and
at the same time appoints another beneficiary to TAKE THE PLACE of the first-
mentioned beneficiary.

2. How does Substitution take place?

- Substitution may take place in the alternative: direct substitution.
- Substitution may take place successively: one beneficiary after another,
(fideicommissary substitution/fideicommissum)

3. Provide an example of Alternative/Direct Substitution

- I leave my house to A. If A cannot inherit or is disqualified, then the house must
go to B.

4. Provide an example of Successive Substitution/Fideicommissum

- I leave my house to my wife Agatha, and when she dies, it must go to my
daughter Billy.

5. What is Direct Substitution?

- Direct Substitution occurs when a testator names a substitute or a series of
substitutes who are to inherit if the heir or legatee named to benefit in a will does
not inherit.
- Direct substitution = substitution in the alternative
6. When does Direct Substitution occur?
- Direct substitution occurs where one or more beneficiaries are instituted in the
alternative to make provision for instances where the appointed beneficiaries:
o Has predeceased the testator.
o Is disqualified from benefiting.
o Has repudiated the benefit.
o Cannot take the benefit because of non-fulfilment of a condition.

7. What are the 2 forms that Direct Substitution can take?

- Express direct substitution:
o stipulated by the testator in the will.
- Direct substitution implied by law:
o ex lege in terms of S2C of the Wills Act.

8. Why do testators make use of Direct Substitution?

- To avoid the benefit devolving in terms of the rules of intestate succession (in the
case of heirs)
- Prevent certain assets from falling into the residue of the estate (in the case of
legatees)
- Exclude right of accrual.

9. What does Express Direct Substitution entail?

- The testator makes provision for the beneficiaries in the alternative.
- If the beneficiary predeceases the testator, repudiates the benefit, or is
disqualified, the substitute will inherit.
- Example?
o I leave my house to my friend Pepechewa. If Pepechewa predeceases me,
repudiates the benefit or otherwise cannot receive the benefit, the house
must pass to my niece Yolandi.
o Pepechewa: beneficiary
o Yolandi: Substitute beneficiary
10. What does Implied Substitution entail?
- Direct substitution that is implied by law in certain circumstances.
- This is regulated by S2C of the Wills Act.
- Section 2C(2)can be seen as the general rule or point of departure but it is
qualified by S2C(1).

11. What does the provisions of S2C (1) entail?

- The provisions of S2C (1) were included in the Act to the benefit of the surviving
spouse.
- It provides for statutory accrual in favour of the surviving spouse where a
descendant repudiates the benefit left to them in the will.
o provided that the descendant is entitled to a benefit in terms of the will
together with the surviving spouse
o provided that the descendant is not a minor or mentally ill person.

12. What does S2C (2) entail?

- S2C (2) provides that the descendants of a descendant of the testator who has been
appointed a beneficiary in a will can represent or substitute that descendant where:
o the descendant predeceased the testator.
o is disqualified from inheriting.
- Such representation can also occur where the descendant repudiates in
circumstances where S2C (1) is not applicable:
o Because there is no surviving spouse or where the descendants are not
entitled to a benefit together with the surviving spouse.
13. Section 2C (2) of the Wills Act
- Applies to:
o Descendants
- When does it apply:
o Repudiate, predeceased or disqualified.
- What happens to benefit?
o Representation: goes to the descendant

14. Section S2C (1) of the Wills Act

- Applies to:
o Major descendants who are not mentally ill and are entitled to a benefit
along with the surviving spouse.
- When does it apply:
o Repudiates the benefit.
- What happens to benefit?
o Goes to the surviving spouse.

15. If a descendant repudiates, is it the same as being disqualified?

- If a descendant repudiates it is NOT the same as being disqualified,
- In the case of repudiation, the benefit will accrue to the surviving spouse (if there
is one)
- In the case of disqualification, the benefit will NOT go to the surviving spouse but
to the descendant.

16. Agatha leaves one third of her estate to Byron, her friend. Byron predeceases
Agatha. Will Byron’s illegitimate child receive the inheritance in terms of S2C
(2) Wills Act?
- No, Byron is not a descendent of the testator (Agatha), therefore the inheritance
will not devolve i.t.o S2C (2).
17. Charles leaves his house to his wife Camilla and son William. William is
disqualified from inheriting. William has a son George. Who inherits William’s
portion of the house?
- Even though the testator’s spouse survived him and is entitled to the benefit,
William was disqualified, not a mentally capable descendant who repudiated the
benefit. Therefore, according to section 2C (1), George will inherit William’s part
of his estate.

18. Mary leaves her stamp collection to her husband Jack together with their
grandchild Jill. Jill who just turned 21 has never used a stamp in her life and
repudiates the inheritance. Jill has just had a baby boy, John. What happens to
the stamp collection?
- Because there is a surviving spouse (John), and the benefit was repudiated by a
descendant who is not mentally ill, the inheritance will go to John i.t.o S2C (1).

19. leave my house to my son Andile. If Andile cannot inherit, the house must go to
David. Andile predeceases the testator and has a daughter Grace. Who inherits
the house?
- This is a case of express direct substitution. The testator named a substitute
beneficiary in the will (David); hence the inheritance must go to the named
substitute.

20. What is Fideicommissary Substitution?

- A fideicommissum occurs where a testator directs that his property transfers to
another person, subject to it being transferred from that person to yet another
person at a later stage.
- A fideicommissum occurs where a testator directs that a series of beneficiaries are
to own his or her whole estate or part of it, or specific assets one after the other.
- Example:
o I leave my house to my wife Agatha, and when she dies it must go to my
daughter Billy.
21. What is the first heir and succeeding beneficiary known as?
- First heir = fiduciary
- Succeeding heir = fideicommissary

22. What are the requirements for a valid fideicommissum?

- The testator must have the intention to create a fideicommissum.
- There must be a clear indication of the fiduciary assets, the fiduciary and
fideicommissary.
- The Fideicommissary condition must be valid.

23. What is a Fideicommissum Simplex?

- If there is only one fideicommissary
- Example: “I leave my house to my son John. On his death, it must go to my
Grandson, Joshua.”
o Testator – John – Joshua
o John: fiduciary
o Joshua: fideicommissary

24. What is a Multiplex Fideicommissum?

- When there are more people involved in the fideicommissum if a series of
successive fideicommissaries have been nominated.
- Example: “I leave my house to my son David. On his death, it must pass to his son
Simon and on Simon’s death it must pass to Simon’s eldest son.”
o Testator – David – Simon – Simon’s eldest son
o David: fiduciary
o Simon: Fideicommissary 1
o Simon’s eldest son: Fideicommissary 2
25. What is a Conditional Fideicommissum?
- Passing on of the property to a subsequent beneficiary is dependent on the
fulfilment of a condition.
- Example:
o “I bequeath my house to my wife, Venus. On her remarriage, the house
must go to my son, Wim.”
o Condition: remarriage of Venus.

26. What is a fideicommissum in diem?

- Passing on of property could depend on a future date, definite or indefinite.
o Definite: in 10 years
o Indefinite: the death of the fiduciary
- Contains a hidden conditional bequest.
- It is subject to a time clause, but it also contains the hidden condition that the
fideicommissary must be alive.
- If the fideicommissary is not alive when the time (definite or indefinite) has
lapsed, the fiduciary will remain owner and on his or her death the property will
form part of his or her estate.

27. What is the statutory restrictions on fideicommissum?

- Limited to 2 fideicommissaries.

28. What is the special power of appointment?

- The testator can confer a special power of appointment on the fiduciary to appoint
the fideicommissary.
29. What is Implied Fideicommissum?
- An implied (or tacit) fideicommissum arises when, after considering the will as a
whole, it is clear from the language used that the testator wishes to burden the
disposition with a fideicommissum although the testator has not expressly done
so.

30. Provide an example of Implied Fideicommissum

- I leave my house to my child, John. If John dies without children (or childless),
the house must go to Jane.
o John is the fiduciary:
▪ Dies Cedit and dies venit - immediate.
▪ Terminative (potentially)
o Jane:
▪ Dies cedit and dies venit is subject to a certain condition (death
without children)

31. What is a Si sine Liberis decesserit clause?

- Dies without children.
- In a si sine liberis decesserit clause, a testator bequeaths his or her property to a
beneficiary stipulating that if he or she dies after the testator and leaves no
children (si sine liberis decesserit), the property must pass to another.
- Example:
o “I leave my house to my child, John. If John dies without children (or
childless), the house must go to Jane.”
o John: fiduciary
o Jane: fideicommissary
32. What is the relevance of the Du Plessis NO v Strauss 1988 case and what are
facts?
- Use this case when considering questions:
o What happens if beneficiary dies WITH children, who will inherit?
o What happens to the property?
- In the Du Plessis case it was stated that if:
o ‘Die without children' clause; and
o Conditional fideicommissum (somebody is only to get the property if the
fiduciary doesn’t have children); and
o Mentioned children are descendants of the testator; then:
▪ Presumption: children are fideicommissary beneficiaries.
▪ Children will take the property.

33. What is Prohibition against alienation?

- “I leave my house to my son Jack. Jack may not sell the house to anyone except
Jill.”
- Ex Parte Wessel’s 1949:
o Implied fideicommissum in relation to the person in whose favour the
prohibition is.
- Where a testator disposes of property to a beneficiary, subject to a prohibition
against alienation of the property by the beneficiary to third parties other than
family members, he or she also impliedly creates a fideicommissum.

34. What is a Usufruct and what does it entail?

- A usufruct occurs when ownership is bequeathed to one person, but the right to
use, enjoy and take the fruits of the property is bequeathed to another.
- The latter is called the usufructuary and the owner is called the dominus,
remainderman or nude owner.
- A usufruct can be defined as a personal servitude giving the usufructuary a limited
real right to use and enjoy another person's property.
- The usufructuary must eventually return the property to the owner having
preserved its substantial quality.
 - A usufruct usually lasts for the duration of the usufructuary's lifetime.

35. Provide an example of a Usufruct

- I leave my house to my son, George, provided that my wife Kate can live in and
enjoy the house for as long as she is alive.
o I = testator
o George = nude owner / dominus
o Kate = usufructuary

Consider: I leave my house to my son, George, provided that my wife Kate can live in and
enjoy the house for as long as she is alive.

36. What is the nature of the usufructuary’s interests?

- Personal servitude limited real right to use and enjoy another person’s property.

37. What is the nature of the dominus’ interests?

- Bare dominium/ownership

38. Dies cedit / venit for usufructuary’s interests?

- On testator’s death of usufructuary interest not ownership.

39. Dies cedit / venit for dominus?

- Dies cedit on testator’s death & dies venit on death of usufructuary.

40. What happens if Kate dies?

- George will enjoy full ownership.
41. What happens if George dies?
- The house forms part of George’s estate, therefore the house will go to his heirs
subject to Kate’s use and enjoyment of the property.

42. Can the usufructuary ever become the owner?

- No.

43. If Kate repudiates her interest how does this effect dies cedit and dies venit?
Does dies venit occur for George or does he have to wait until Kate dies?
- Dies venit occurs immediately, he does not have to wait for Kate to die.
- If usufructuary repudiates the benefit, the dominus will get dies cedit and dies
venit immediately after the death of the testator.

44. What is the difference between Usufruct and Fideicommissum?

- If the intention of the testator was to vest ownership in the first beneficiary subject
to a condition or term before it is transferred to the second beneficiary, it is
usually a fideicommissum.
- If the intention of the testator was to vest only a personal right in the beneficiary
subject to the condition that this right must pass on to the dominus, it is usually a
usufruct.
- There is a presumption against a usufruct in favour of a fideicommissum.
 Fiduciary Usufructuary
- Owner of fiduciary asset (real - Not owner of the asset.
right) - Has a limited real right in the
- Ownership is limited in duration property - can use and enjoy
(has to be transferred to (therefore, also limited in scope.
fideicommissary) and extent (use and duration)
and enjoyment). - Cannot become the owner.
- Can become full owner (for Ownership lies with ‘nude
example, should owner'. If 'nude owner’ dies,
fideicommissary predecease the then benefit or asset passes to his
fiduciary). or her beneficiaries in terms of
will or intestate succession.