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The SA Common Law on Wills —A Database

All the decisions of the superior courts

Compiled by

Costa Divaris

The SA Common Law on Wills —A Database

All the decisions of the superior courts

Compiled by

Costa Divaris

2019 Edition

Terms and conditions

The SA Common Law on Wills—A Database 2019 ed © 2020 C Divaris Bsp Seminars® Gauteng South Africa

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Quick contents


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Quick contents

Terms and conditions 5 Quick contents 7 Stylistic conventions 9 How to use this work 11 Chronological list of cases 13 Cases, summaries 17 Cases, summaries and themes 27 Summaries 51 Cases, themes 59 The superior courts on wills 77

2019 ............................................................................................................... 79 2018 ............................................................................................................... 91 2017 ............................................................................................................. 105 2014 ............................................................................................................. 119 2013 ............................................................................................................. 125 2012 ............................................................................................................. 133 2011 ............................................................................................................. 139 2010 ............................................................................................................. 141 2009 ............................................................................................................. 171 2007 ............................................................................................................. 183 2006 ............................................................................................................. 201 2005 ............................................................................................................. 205 2004 ............................................................................................................. 215 2003 ............................................................................................................. 247 2000 ............................................................................................................. 253 1998 ............................................................................................................. 271 1993 ............................................................................................................. 277 1992 ............................................................................................................. 297 1988 ............................................................................................................. 319 1986 ............................................................................................................. 341 1985 ............................................................................................................. 345 1984 ............................................................................................................. 365 1983 ............................................................................................................. 373 1982 ............................................................................................................. 379 1981 ............................................................................................................. 391 1979 ............................................................................................................. 407 1978 ............................................................................................................. 431 1977 ............................................................................................................. 435 1976 ............................................................................................................. 441 1975 ............................................................................................................. 445 1974 ............................................................................................................. 461 1971 ............................................................................................................. 465 1968 ............................................................................................................. 473

Quick contents


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1966 .............................................................................................................. 481 1965 .............................................................................................................. 495 1963 .............................................................................................................. 501 1961 .............................................................................................................. 513 1960 .............................................................................................................. 515 1958 .............................................................................................................. 521 1957 .............................................................................................................. 525 1956 .............................................................................................................. 559 1955 .............................................................................................................. 571 1954 .............................................................................................................. 631 1953 .............................................................................................................. 647 1951 .............................................................................................................. 675 1950 .............................................................................................................. 699 1949 .............................................................................................................. 717 1948 .............................................................................................................. 733 1947 .............................................................................................................. 741

Stylistic conventions


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Stylistic conventions

The citations listed here in chronological order have been taken verbatim from published reports in South Africa Law Reports (SALR), while the spelling, punctuation and typographical presentation of the texts cited have been adapted to the conventions set out in the latest edition of the Bsp Stylebook (C Divaris, DS McAllister), a free publication. In addition, old citations of cases have been modernized. Obvious errors have been corrected, and are identified by being embraced in square parentheses.

In older judgments, before the advent of the convention of numbered paragraphs, paragraph-indentations have been dispensed with in the first line of the text of every citation and in every first line following an interruption of the text by indented or hanging material. The centered, bold headings in square parentheses indicating the ‘theme’ covered in the ensuing text of a judgment are not regarded as an interruption for this purpose.

Quotation marks are used to indicate a formal, verbatim quotation arising within the text of a citation. When a quotation appears separately from the text and indented, no quotation marks are used. A quotation within a quotation is indicated by a further indentation, again, without quotation marks. Paragraph-indentations have been dispensed with in the first line of every quotation and in every first line following an interruption of the quotation by indented or hanging material.

Quotations within the text of the citation are embraced by single quotation marks, and quotations within those quotations with double quotation marks, subject to recycling should the nesting continue.

The text of a citation or quotation expressed in Latin or Dutch is italicized, regardless of its original font, unless the particular passage concerned is a lengthy one. An attempt has been made to standardize the presentation of citations of learned works, regardless of the original italicization.


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How to use this work


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How to use this work

This is a full collection of judgments of the higher courts dealing with wills and succession. What is reproduced here is that part of each judgment supplying the ratio, as well as any other dicta not traversing the facts. What is silently omitted is (a) the introductory part of each judgment, usually devoted to a statement of the facts and circumstances of the particular case, and (usually) (b) that concluding part of each judgment dealing with the order and the award of costs. The intervening portion is reproduced in full, without interruption, save for the ‘theme’ headings shown in bold type, within square parentheses. When, exceedingly rarely, text is omitted, the ellipsis is shown, in the conventional fashion.

Each citation shows the formal SALR citation of the case, albeit modernized when necessary, the composition of the bench, the date judgment was handed down, the nature of (unanimous, dissenting, concurring) and, if relevant, the support for each judgment, and the ultimate order handed down (appeal allowed or dismissed). In each instance, the facts of the case and the finding are summarized, in two, italicized sentences, one for the facts, and the other for the finding. When essential for an understanding of a particular ratio, the relevant clauses of the will under consideration are supplied before the ratio.


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Chronological list of cases


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Click on an item to go to that page

2019 79 GOOSEN v WIEHAHN (761/2018) [2019] ZASCA 137 ............................. 79 GROBLER v MASTER OF THE HIGH COURT & OTHERS (645/2018) [2019] ZASCA 119 ........................................................................................ 85

2018 91 NAIDOO v DISCOVERY LIFE LIMITED & OTHERS (202/2017) ZASCA 88 ................................................................................................................... 91 STANDARD BANK v JULY (525/2017) [2018] ZASCA 85 ....................... 97

2017 105 LAUBSCHER NO v DUPLAN AND OTHERS 2017 (2) SA 264 (CC) ...... 105

2014 119 ERASMUS NO v ESTATE LATE BOOYSEN 2014 (4) SA 1 (SCA) ........ 119

2013 125 IN RE BOE TRUST LTD AND OTHERS NNO 2013 (3) SA 236 (SCA) .. 125 JAKINS V BAXTER (178/13) [2013] ZASCA 190 .................................... 129

2012 133 RAUBENHEIMER v RAUBENHEIMER AND OTHERS 2012 (5) SA 290 (SCA) ........................................................................................................... 133

2011 139 PIENAAR AND ANOTHER v MASTER OF THE FREE STATE HIGH COURT, BLOEMFONTEIN, AND OTHERS 2011 (6) SA 338 (SCA) ...... 139

2010 141 VAN DER MERWE v THE MASTER AND ANOTHER 2010 (6) SA 544 (SCA) ........................................................................................................... 141 CURATORS, EMMA SMITH EDUCATIONAL FUND v UNIVERSITY OF KWAZULU-NATAL AND OTHERS 2010 (6) SA 518 (SCA) .................. 145 SMITH v PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA) ............ 153 HENRIQUES v GILES NO 2010 (6) SA 51 (SCA) .................................... 155 MEINTJES V COETZER & OTHERS (089/09) [2010] ZASCA 32 .......... 161

2009 171 HASSAM v JACOBS NO AND OTHERS 2009 (5) SA 572 (CC) .............. 171

2007 183 GORY v KOLVER NO AND OTHERS (STARKE AND OTHERS INTERVENING) 2007 (4) SA 97 (CC) ........................................................ 183

2006 201 DE RESZKE v MARAS AND OTHERS 2006 (2) SA 277 (SCA).............. 201

2005 205 BHE AND OTHERS v MAGISTRATE, KHAYELITSHA, AND OTHERS (COMMISSION FOR GENDER EQUALITY AS AMICUS CURIAE); SHIBI v SITHOLE AND OTHERS; SOUTH AFRICAN HUMAN RIGHTS COMMISSION AND ANOTHER v PRESIDENT OF THE REPUBLIC OF



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SOUTH AFRICA AND ANOTHER 2005 (1) SA 580 (CC) ........................ 205 RHODE v STUBBS 2005 (5) SA 104 (SCA) .............................................. 209

2004 215 VAN WETTEN AND ANOTHER v BOSCH AND OTHERS 2004 (1) SA 348 (SCA) .................................................................................................... 215 DANIELS v CAMPBELL NO AND OTHERS 2004 (5) SA 331 (CC) ........ 219

2003 247 BEKKER v NAUDE EN ANDERE 2003 (5) SA 173 (SCA) ...................... 247

2000 253 MTHEMBU v LETSELA AND ANOTHER 2000 (3) SA 867 (SCA) ........ 253 JOWELL v BRAMWELL-JONES AND OTHERS 2000 (3) SA 274 (SCA) ...................................................................................................................... 261

1998 271 WEBB v DAVIS NO AND OTHERS 1998 (2) SA 975 (SCA) ................... 271

1993 277 HARPUR NO v GOVINDAMALL AND ANOTHER 1993 (4) SA 751 (A) ...................................................................................................................... 277

1992 297 HILDA HOLT WILL TRUST v COMMISSIONER FOR INLAND REVENUE 1992 (4) SA 661 (A) ................................................................. 297 COHEN NO v ROETZ NO AND OTHERS 1992 (1) SA 629 (A) .............. 303 KOMMISSARIS VAN BINNELANDSE INKOMSTE v STEYN NO 1992 (1) SA 110 (A) .............................................................................................. 313

1988 319 HOROWITZ v BROCK AND OTHERS 1988 (2) SA 160 (A) ................... 319 DU PLESSIS NO v STRAUSS 1988 (2) SA 105 (A) .................................. 329

1986 341 KOHLBERG v BURNETT NO AND OTHERS 1986 (3) SA 12 (A) ......... 341

1985 345 HEYMANS v VAN TONDER 1985 (3) SA 864 (A) ................................... 345 CRONJE v KRUGER EN ’N ANDER NNO 1985 (2) SA 812 (A) ............. 353

1984 365 REIN NO V FLEISCHER NO AND OTHERS 1984 (4) SA 863 (A) ......... 365 BRAUN v BLANN AND BOTHA NNO AND ANOTHER 1984 (2) SA 850 (A) ................................................................................................................ 369

1983 373 DIEDERICHS v GOUWS EN ’n ANDER 1983 (3) SA 28 (A) ................... 373

1982 379 KINLOCH NO AND ANOTHER v KINLOCH 1982 (1) SA 679 (A) ........ 379

1981 391 FERREIRA NO v SMIT NO 1981 (3) SA 1264 (A) .................................... 391 SMIT v DU TOIT EN ANDERE 1981 (3) SA 1249 (A) ............................. 397

1979 407 DISON NO AND OTHERS v HOFFMANN AND OTHERS NNO 1979 (4) SA 1004 (A) ................................................................................................. 407

1978 431 WESSELS EN ANDERE v SINODALE KERKKANTOOR KOMMISSIE VAN DIE NEDERDUITSE GEREFORMEERDE KERK, OVS 1978 (3) SA 716 (A) ......................................................................................................... 431

1977 435



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RADLEY EN ’N ANDER v STOPFORTH EN ’N ANDER 1977 (2) SA 516 (A) ................................................................................................................ 435

1976 441 IN RE JENNETT NO 1976 (1) SA 580 (A) ................................................. 441

1975 445 MAPHAM v ROSS AND ANOTHER NNO 1975 (2) SA 412 (A) ............. 445 BOSWELL EN ANDERE v VAN TONDER 1975 (3) SA 29 (A) .............. 451

1974 461 SECRETARY FOR INLAND REVENUE v ESTATE ROADKNIGHT AND ANOTHER 1974 (1) SA 253 (A) ................................................................. 461

1971 465 LELLO AND OTHERS v DALES NO 1971 (2) SA 330 (A) ...................... 465

1968 473 LOOCK EN ’N ANDER v STEYN NO 1968 (1) SA 602 (A)..................... 473

1966 481 ESTATE ORPEN v ESTATE ATKINSON AND OTHERS 1966 (4) SA 589 (A) ................................................................................................................ 481 CONRADIE EN ANDERE v SMIT 1966 (3) SA 368 (A) .......................... 489

1965 495 SCHOEMAN v O’NEIL EN ANDERE 1965 (3) SA 359 (A) ..................... 495

1963 501 GLAZER v GLAZER NO 1963 (4) SA 694 (A) .......................................... 501 VAN RENSBURG v VAN RENSBURG EN ANDERE 1963 (1) SA 505 (A) ..................................................................................................................... 507 WOLMAN AND OTHERS v WOLMAN 1963 (2) SA 452 (A) ................. 511

1961 513 BODASING v CHRISTIE NO AND ANOTHER 1961 (3) SA 553 (A) ..... 513

1960 515 HARRIS v FISHER NO 1960 (4) SA 855 (A) .............................................. 515

1958 521 HENNING v ERASMUS EN ANDERE 1958 (2) SA 512 (A) .................... 521

1957 525 ABRAHAM-KRIEL KINDERHUIS v ADENDORFF NO AND OTHERS 1957 (3) SA 653 (A) ..................................................................................... 525 EX PARTE BURGER EN ANDERE 1957 (3) SA 644 (A) ........................ 529 SPIES NO v SMITH EN ANDERE 1957 (1) SA 539 (A) ........................... 535 O’DWYER v ESTATE MARKS AND OTHERS 1957 (1) SA 287 (A) ..... 543 GREEFF v ESTATE GREEFF 1957 (2) SA 269 (A) .................................. 549 PHIPSON AND OTHERS v JARDINE AND OTHERS 1957 (3) SA 268 (A) ..................................................................................................................... 553

1956 559 COMMISSIONER FOR INLAND REVENUE v LUKIN’S ESTATE 1956 (1) SA 617 (A) .............................................................................................. 559 SCHAUMBERG v STARK NO 1956 (4) SA 462 (A)................................. 563 ESTATE SANUA v THE MASTER, HIGH COURT (SR) AND ANOTHER 1956 (1) SA 158 (A) ..................................................................................... 569

1955 571 HOLMES’ EXECUTOR AND OTHERS v RAWBONE AND OTHERS 1954 (3) SA 703 (A) ..................................................................................... 571 ESTATE WATKINS-PITCHFORD AND OTHERS v COMMISSIONER



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FOR INLAND REVENUE 1955 (2) SA 437 (A) ........................................ 585 GREENBERG AND OTHERS v ESTATE GREENBERG 1955 (3) SA 361 (A) ................................................................................................................ 605 COMMISSIONER FOR INLAND REVENUE AND OTHERS v SIVE’S ESTATE 1955 (1) SA 249 (A) ..................................................................... 611

1954 631 ASSOCIATED MANGANESE MINES OF SA LTD v CLAASSENS 1954 (3) SA 768 (A) .............................................................................................. 631 EX PARTE OPPERMAN 1954 (1) SA 358 (A) .......................................... 637 EX PARTE MELLE AND OTHERS 1954 (2) SA 329 (A) ......................... 641

1953 647 EX PARTE SIMPSON 1953 (1) SA 565 (A) ............................................... 647 GLASS AND OTHERS v KER NO AND OTHERS 1953 (1) SA 550 (A) . 651 BYDAWELL v CHAPMAN NO AND OTHERS 1953 (3) SA 514 (A) ..... 659 HARTER v EPSTEIN 1953 (1) SA 287 (A) ................................................ 667

1951 675 EX PARTE ROSSOUW NO 1951 (3) SA 681 (A) ...................................... 675 MOSES v ABINADER 1951 (4) SA 537 (A) .............................................. 681 VAN ZYL AND OTHERS v VAN ZYL AND OTHERS 1951 (3) SA 288 (A) ...................................................................................................................... 695

1950 699 ARONSON v ESTATE HART AND OTHERS 2 1950 (1) SA 539 (A) ..... 699

1949 717 KETHEL v KETHEL’S ESTATE 1949 (3) SA 598 (A) .............................. 717 SMITH AND ANOTHER v ESTATE SMITH 1949 (1) SA 534 (A) .......... 727

1948 733 MOYCE v ESTATE TAYLOR 1948 (3) SA 822 (A) .................................. 733 KRIEL v KRIEL AND ANOTHER 1948 (3) SA 309 (A) ........................... 737

1947 741 CANNON AND OTHERS v NORRIS 1947 (4) SA 811 (A) ...................... 741

Cases, summaries


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Cases, summaries


2019 79 GOOSEN v WIEHAHN (761/2018) [2019] ZASCA 137 ............................. 79

Beneficiary exercised right under will to acquire properties at determined price. ‘Real source’ of the right is ‘disposition by the testator’, which was its fons et origo; consequently right was not pactum de contrahendo, and acquisition was ‘acquisition by succession’. 79

GROBLER v MASTER OF THE HIGH COURT & OTHERS (645/2018) [2019] ZASCA 119 ........................................................................................ 85

Deceased with will properly executed at time of first marriage, presented with draft will prepared by deceased’s financial adviser. Section 2(3) of Wills Act not applied, since no intention that final document was to be will. 85

2018 91 NAIDOO v DISCOVERY LIFE LIMITED & OTHERS (202/2017) ZASCA 88 ................................................................................................................... 91

Nomination of beneficiary under risk-only policy containing beneficiary clause (stipulatio alteri) changed by deceased. Such a policy cannot be an asset in the estate of the policyholder and of joint estate from marriage in community of property, and not an insurance policy under s 15(2)(c) of Matrimonial Property Act. 91

STANDARD BANK v JULY (525/2017) [2018] ZASCA 85 ....................... 97 Deceased executor sold estate assets unlawfully before his death. Under the Beningfield exception, beneficiary of deceased estate may claim assets from the person in possession. 97


Permanent life partners with reciprocal duties of support without solemnization under the Civil Union Act; one of them died intestate. Survivor held to be entitled to inherit. 105


Will created fiduciary and first and second fideicommissaries; first fideicommissary predeceased fiduciary. Property held to go to second fideicommissary. 119

2013 125 IN RE BOE TRUST LTD AND OTHERS NNO 2013 (3) SA 236 (SCA) .. 125

Will provided for charitable testamentary trust, with alternative beneficiaries should the primary appointment prove impossible. Upon failure of primary appointment, alternative appointment held to apply. 125

Cases, summaries


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JAKINS V BAXTER (178/13) [2013] ZASCA 190 .................................... 129 Antenuptial contract compensated wife for benefits forgone under previous marriage with benefits ‘arising’ from deceased’s membership of provident fund. In context of ANC, relevant clause was meant to make financial provision for the wife upon the death of the deceased, and life policy as a benefit falling within ambit of the clause. 129


Testator bequeathed a usufruct without identifying the remainderman; omitted to attach a list of bequests to the will. Will interpreted and held to be valid. 133


Testator’s second will did not revoke earlier will. Both wills read together, with later will revoking earlier one in instances of inconsistency. 139

2010 141 VAN DER MERWE v THE MASTER AND ANOTHER 2010 (6) SA 544 (SCA) ........................................................................................................... 141

Document bearing characteristics of will unsigned. Found to be a will, under the Wills Act. 141

CURATORS, EMMA SMITH EDUCATIONAL FUND v UNIVERSITY OF KWAZULU-NATAL AND OTHERS 2010 (6) SA 518 (SCA) .................. 145

Charitable testamentary trust included racially restrictive provision. Relevant clause deleted under the Trust Property Control Act. 145

SMITH v PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA) ............ 153 Suicide note. Accepted as will under the Wills Act. 153

HENRIQUES v GILES NO 2010 (6) SA 51 (SCA) ..................................... 155 Crossed wills. Rectification accepted into law but not when testator lacked testamentary capacity. 155

MEINTJES V COETZER & OTHERS (089/09) [2010] ZASCA 32 .......... 161 Farm fraudulently transferred and registered in the names of deceased’s children, who claimed she had either waived or abandoned (donated) her right to ownership. Neither claim proved, rectification of deeds approved. 161

2009 171 HASSAM v JACOBS NO AND OTHERS 2009 (5) SA 572 (CC) ............... 171

Widows in polygynous Muslim marriages excluded by s 1(1) of the Intestate Succession Act. Deficiency rectified by a reading-in. 171


Surviving partner in permanent same-sex partnership under reciprocal duties of support did not inherit upon intestacy of deceased partner. Statute held to be unconstitutional, and rectifying words read-in. 183

2006 201

Cases, summaries


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DE RESZKE v MARAS AND OTHERS 2006 (2) SA 277 (SCA).............. 201 Whether a document constituted a will. Intention concurrent with its drafting that it be a will, as opposed to instructions to an attorney, not shown. 201

2005 205 BHE AND OTHERS v MAGISTRATE, KHAYELITSHA, AND OTHERS (COMMISSION FOR GENDER EQUALITY AS AMICUS CURIAE); SHIBI v SITHOLE AND OTHERS; SOUTH AFRICAN HUMAN RIGHTS COMMISSION AND ANOTHER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER 2005 (1) SA 580 (CC) ........................ 205

On the constitutional validity of s 23 of the Black Administration Act and of the principal of primogeniture under the customary law of succession. Orders made as to the interpretation of the relevant statutes. 205

RHODE v STUBBS 2005 (5) SA 104 (SCA) .............................................. 209 Joint will of spouses married in community of property. Held not to constitute a massing. 209

2004 215 VAN WETTEN AND ANOTHER v BOSCH AND OTHERS 2004 (1) SA 348 (SCA) .................................................................................................... 215

Document in sealed envelope addressed to deceased’s attorney handed over for safekeeping, together with other sealed documents, to deceased’s friend some years before his death, seemingly in circumstances indicating that he was contemplating suicide. Document held to be a will under s 2(3) of Wills Act 7 of 1953. 215

DANIELS v CAMPBELL NO AND OTHERS 2004 (5) SA 331 (CC) ........ 219 Whether ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act includes persons married according to Muslim rites. Held that these acts are to be interpreted as including a party to a monogamous Muslim marriage as a spouse. 219


Bank instructed by client to draft will; never signed by client. Will declared invalid, as not having been drafted by the deceased. 247

2000 253 MTHEMBU v LETSELA AND ANOTHER 2000 (3) SA 867 (SCA) ........ 253

Deceased married under customary with illegitimate daughter died intestate. Daughter held not to enjoy any rights under laws intestacy. 253

JOWELL v BRAMWELL-JONES AND OTHERS 2000 (3) SA 274 (SCA) ..................................................................................................................... 261

Wife bequeathed usufruct over shares in a holding company—in which she personally held, outright, a significant interest—with investment in listed shares; advised to sell shares and lend proceeds to trust to buy interest-bearing securities. Action for damages found to be premature, since any loss ascertainable only upon her death. 261


Bequest to beneficiary subject to bequest price payable in instalments, on condition of immediate acceptance and forfeiture in

Cases, summaries


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the event of noncompliance with terms; beneficiary died, leaving property to spouse. Property found to vest, subject to resolutive condition, and to be transmissible. 271

1993 277 HARPUR NO v GOVINDAMALL AND ANOTHER 1993 (4) SA 751 (A) ...................................................................................................................... 277

In one of its two pages, a will was merely initialled by the witnesses, rather than being signed. The will was held to be invalid under s 2(1)(a) of the Wills Act 7 of 1953. 277

1992 297 HILDA HOLT WILL TRUST v COMMISSIONER FOR INLAND REVENUE 1992 (4) SA 661 (A) ................................................................. 297

Under testamentary trust, testatrix’s friend awarded monthly annuity and other benefits, with trust property to go to designated charities upon her death. Bequest to charities found to be unconditional, and vested in them at death. 297

COHEN NO v ROETZ NO AND OTHERS 1992 (1) SA 629 (A) .............. 303 Inter-generational fideicommissum created in will in favour of testator’s three children, with devolution to the eldest child of each child and then of their successors. Found to exclude adopted children, despite statutory accommodation of adopted children generally. 303

KOMMISSARIS VAN BINNELANDSE INKOMSTE v STEYN NO 1992 (1) SA 110 (A) .............................................................................................. 313

Liability of deceased to ex-wife under agreement incorporated in divorce order relevant to estate duty calculation. Liability found to be more than the tax authorities allowed but less than what was claimed as a deduction in the estate. 313

1988 319 HOROWITZ v BROCK AND OTHERS 1988 (2) SA 160 (A) ................... 319

Under massed estate, survivor enjoyed life interest, with devolution to a trust with daughters as income beneficiaries, and capital to go their lawful children. ‘Children’ found to include grandchildren with predeceased parents. 319

DU PLESSIS NO v STRAUSS 1988 (2) SA 105 (A) .................................. 329 The testator bequeathed a farm to his son by way of fideicommissum, subject to the condition that, should he die without lawful descendants, the farm would go to his sisters or their lawful descendants, by substitution; son died, leaving children. Children found to be fideicommissary beneficiaries. 329


Before executing his will, the testator created two trusts, in his will appointing them (via their trustees) as beneficiaries of the residue of his estate. Bequest held to be valid. 341

1985 345 HEYMANS v VAN TONDER 1985 (3) SA 864 (A) ................................... 345

Surviving spouse adiated under joint will providing that, should the survivor remarry, a sum be either paid to the son or security furnished. Choice of providing security found to subsist only for so long as son was a minor. 345

Cases, summaries


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CRONJE v KRUGER EN ’N ANDER NNO 1985 (2) SA 812 (A) ............. 353 Joint will bequeathed joint estate to survivor; fideicommissum over part in favour of testators’ son, including movables and livestock as found on a particular farm upon the survivor’s death; survivor had in her lifetime disposed of some of these movables. Son successfully obtained compensation for diminution in movables. 353

1984 365 REIN NO V FLEISCHER NO AND OTHERS 1984 (4) SA 863 (A) ......... 365

Bequest subject to forfeiture clause in the event of anticipation or encumbrance of interest or inheritance; beneficiary promised a portion of anticipated in heritance in consent paper. Action did not trigger forfeiture clause. 365

BRAUN v BLANN AND BOTHA NNO AND ANOTHER 1984 (2) SA 850 (A) ................................................................................................................ 369

Will created discretionary trust, empowering trustees to make distributions at their discretion among designated beneficiaries; termination clause included proviso purportedly affording them the power to create trusts at will. Bequest found to be valid; the proviso to be invalid, although with no effect upon the validity of the testamentary trust. 369

1983 373 DIEDERICHS v GOUWS EN ’n ANDER 1983 (3) SA 28 (A) .................. 373

Bequest to survivor in joint will, with special bequests out of ‘the estate as then found’ upon the death of the survivor. The survivor was precluded from disposing of the property. 373


Usufruct in property enjoyed by testator’s wife, with conditional fideicommissum in favour of grandson, subject to a fideicommissary substitution, should grandson not dispose of property by transaction or by will; grandson died intestate, while married in community of property. Property fell into joint estate of late grandson and his wife. 379

1981 391 FERREIRA NO v SMIT NO 1981 (3) SA 1264 (A) .................................... 391

Grandson inherited property by way of fideicommissum, with limited power to nominate fideicommissarii by way of testamentary disposition; purported in his will so to dispose of the property, but subject to terms contrary to his testamentary power. No honest intention to exercise his power, and in fact had not so exercised it. 391

SMIT v DU TOIT EN ANDERE 1981 (3) SA 1249 (A) ............................. 397 Alienation of property bequeathed by way of fideicommissum prohibited except to legitimate children. Sale and bequest by beneficiary to her son upheld. 397


The focus of a poorly drafted will was its clause 6, which failed to make it clear whether vesting in the beneficiaries depended upon their surviving to a later date, or what was to be done with surplus

Cases, summaries


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income. Vesting found to take place at second date, and surplus income accrued to the capital of the residue. 407


Control of farming property left to Commission, with user rights of two types reserved for most needy of identified beneficiaries, otherwise to be let on the open market. None of applicants qualified for access to these user rights, and none of them were prejudiced by the letting of the property on the open market. 431

1977 435 RADLEY EN ’N ANDER v STOPFORTH EN ’N ANDER 1977 (2) SA 516 (A) ................................................................................................................ 435

Commissioner of oaths failed to append his certificate to the will marked by testator. Will held to be invalid. 435


Testator signed will with mark in presence of commissioner of oaths, who appended certificate required by s 2(1)(a)(v) of Act 7 of 1953. Certificate complied, even though commissioner did not use the ipsissima verba of the provision. 441

1975 445 MAPHAM v ROSS AND ANOTHER NNO 1975 (2) SA 412 (A) ............. 445

Bequest to eldest son, and from him to ‘the eldest heir male’ of such son. Interpreted as identifying the eldest son’s heirs, from eldest son to eldest son. 445

BOSWELL EN ANDERE v VAN TONDER 1975 (3) SA 29 (A) .............. 451 Bequest to testators’ daughter; to go to her lawful issue; failing them, to other children or their lawful issue. Daughter’s adopted child excluded from qualification, despite s 74(2) of Act 33 of 1960. 451


Will gave beneficiary option to acquire immovable property at fixed price. Held to be acquisition by testamentary succession for transfer duty purposes. 461

1971 465 LELLO AND OTHERS v DALES NO 1971 (2) SA 330 (A) ...................... 465

Bequest to brother or lawful issue, if any; died without issue. Devolution held to be to other beneficiaries. 465

1968 473 LOOCK EN ’N ANDER v STEYN NO 1968 (1) SA 602 (A) ..................... 473

Bequest of farms to children; subsequent heirs required to bear names of testators. Not invalid for uncertainty; constituted a fideicommissum. 473

1966 481 ESTATE ORPEN v ESTATE ATKINSON AND OTHERS 1966 (4) SA 589 (A) ................................................................................................................ 481

Daughter as usufructuary with power to appoint successors in full

Cases, summaries


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title, exercising power in her will, but predeceasing the testator. Her testamentary disposition invalid. 481

CONRADIE EN ANDERE v SMIT 1966 (3) SA 368 (A) .......................... 489 Daughter left portion of farm, with improvements. Intended portion identified as homestead on farm at the time of execution of the will; no interference with costs order de bonis propriis against executor. 489


Will created perpetual fideicommissum in favour of eldest son in each generation; first eldest son died without issue. Substitution to be applied in each generation, whenever an eldest son leaves no male descendants. 495

1963 501 GLAZER v GLAZER NO 1963 (4) SA 694 (A) .......................................... 501

Claim by widow for maintenance from estate of late husband. Condonation for late noting of appeal refused, prospects of success being too slender. 501

VAN RENSBURG v VAN RENSBURG EN ANDERE 1963 (1) SA 505 (A) ..................................................................................................................... 507

Mutual will of husband and wife written out by husband but not confirmed by wife. Surviving husband prohibited from benefiting under will. 507

WOLMAN AND OTHERS v WOLMAN 1963 (2) SA 452 (A) ................. 511 Guardians represented minors in court, despite possible conflict of interest. Decision set aside and case remitted to trial court, for appointment of `. 511


Farm bequeathed to each of two sons, each subject to a right of pre-emption in favour of his brother. Could not prevent sale by public auction upon insolvency of one of the brothers. 513


Widow a vested income beneficiary of estate property, bequeathed to a trust, claimed as income a dividend paid to extinguish the deceased’s indebtedness to the declaring dividend. Dividend held not to be income of the estate. 515


Bequest to married daughter subject to a usufruct to her surviving spouse; subsequently divorced. On her death, usufruct to ex-husband upheld. 521

1957 525 ABRAHAM-KRIEL KINDERHUIS v ADENDORFF NO AND OTHERS 1957 (3) SA 653 (A) ..................................................................................... 525

Joint will dependent upon survivor’s making another will; survivor dies seven moths later, without making a will. Joint will inapplicable; survivor died intestate. 525

EX PARTE BURGER EN ANDERE 1957 (3) SA 644 (A) ........................ 529

Cases, summaries


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Bequest to grandchildren, subject to a usufruct in favour of the testator’s child, who, being beyond child-bearing age, attempted to vest the property in her children, subject to a usufruct in her favour. Will created a fideicommissum in favour of grandchildren and great-grandchildren; grandchildren could receive transfer, subject to the fideicommissum. 529

SPIES NO v SMITH EN ANDERE 1957 (1) SA 539 (A) ........................... 535 Validity of will upheld despite pressure brought to bear upon testator. 535

O’DWYER v ESTATE MARKS AND OTHERS 1957 (1) SA 287 (A) ..... 543 Under will, marriage outside of the Jewish faith by children entailed forfeiture. Under construction of will and codicil, ‘children’ found not to include ‘grandchildren’. 543

GREEFF v ESTATE GREEFF 1957 (2) SA 269 (A) ................................... 549 Bequest to daughters subject to fideicommissum in favour of testator’s descendants, subject to reversion to all children should a daughter die without issue. Held to constitute fiduciary substitution, in favour of testator’s surviving son. 549

PHIPSON AND OTHERS v JARDINE AND OTHERS 1957 (3) SA 268 (A) ...................................................................................................................... 553

Bequest to son subject to a prohibition against alienation outside of a class. Class too poorly identified for a fideicommissum to have been created. 553

1956 559 COMMISSIONER FOR INLAND REVENUE v LUKIN’S ESTATE 1956 (1) SA 617 (A) .............................................................................................. 559

Surviving spouse left usufruct over residue of estate, with power of appointment, subject to gift over. Dominium found not to vest in wife, who enjoyed a usufructuary interest, ceasing on her death. 559

SCHAUMBERG v STARK NO 1956 (4) SA 462 (A) ................................. 563 Estate bequeathed to wife, to be administered by a trustee, with all income to go to the wife, and ultimate devolution to the children, subject to a set-aside for one of the children, who predeceased his mother. No vesting in trustee; wife enjoyed fiduciary interest; owned but could not access the set-aside, which did not vest in deceased son. 563

ESTATE SANUA v THE MASTER, HIGH COURT (SR) AND ANOTHER 1956 (1) SA 158 (A) ..................................................................................... 569

Endorsement of will required by statute to maintain its validity upon marriage of testator. Will executed before marriage but clearly contemplating marriage found to comply. 569

1955 571 HOLMES’ EXECUTOR AND OTHERS v RAWBONE AND OTHERS 1954 (3) SA 703 (A) ..................................................................................... 571

First-dying spouse provided for children, subject to a time clause, as well as for a massing of the joint estate, with the surviving spouse adiating. The massing applied to the whole estate. 571

ESTATE WATKINS-PITCHFORD AND OTHERS v COMMISSIONER FOR INLAND REVENUE 1955 (2) SA 437 (A) ........................................ 585

A will and a codicil conferred ownership upon the testator’s children,

Cases, summaries


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with the income to be paid to them during their lifetimes, subject to disposition by them by will or, failing a will, to their next of kin. Their interests found to be fideicommissa, subject to death duties under s 3(4)(b) of the Death Duties Act. 585

GREENBERG AND OTHERS v ESTATE GREENBERG 1955 (3) SA 361 (A) ................................................................................................................ 605

The testator’s widow enjoyed a usufructuary interest in a property, with the estate being held in trust, for the benefit of the sons of the marriage, who predeceased their mother. Despite the trust, ownership of the estate property vested in the sons, and, failing them, their children. 605

COMMISSIONER FOR INLAND REVENUE AND OTHERS v SIVE’S ESTATE 1955 (1) SA 249 (A) ..................................................................... 611

Will vested property in trustees. Deceased beneficiary found to have no vested beneficial interest in that property. 611

1954 631 ASSOCIATED MANGANESE MINES OF SA LTD v CLAASSENS 1954 (3) SA 768 (A) .............................................................................................. 631

Farm bequeathed to son, with benefits under mining contract to be divided equally among all the children, subject to usufruct in favour of surviving spouse, who renounced it, in favour of the son. Rights under contract did not vest in son, who could not cancel it; in any event, the court was bound to have regard to the interests of the other beneficiaries. 631

EX PARTE OPPERMAN 1954 (1) SA 358 (A) .......................................... 637 Farm left to testator’s son to go to his sisters should he die without children. His inheritance constituted a fideicommissum, which could not be expunged. 637

EX PARTE MELLE AND OTHERS 1954 (2) SA 329 (A) ......................... 641 Will appointed children as sole heirs, subject to a time-clog on some of the assets. Children found to enjoy vested interests ab initio. 641

1953 647 EX PARTE SIMPSON 1953 (1) SA 565 (A) ............................................... 647

Fideicommissum subject to marriage and lawful issue. Lapsed not upon marriage but death, leaving issue. 647

GLASS AND OTHERS v KER NO AND OTHERS 1953 (1) SA 550 (A). 651 Shares to be offered to beneficiaries at face value. Acceptance of option a patrimonial event. 651

BYDAWELL v CHAPMAN NO AND OTHERS 1953 (3) SA 514 (A) ..... 659 Family agreement purported to dispose of an estate, contrary to the provisions of the will. Devolution of estate unaffected. 659

HARTER v EPSTEIN 1953 (1) SA 287 (A) ................................................ 667 Balance of estate left to discretion of executors. Interpretation of will showed that identified beneficiary not entitled to the residue, which was therefore required to be dealt with under the rules of intestacy. 667

1951 675 EX PARTE ROSSOUW NO 1951 (3) SA 681 (A) ...................................... 675

Testator appointed daughter and her children, born and still to be born, as sole heirs, with liquidation and distribution to be

Cases, summaries


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accomplished within three month. Daughter held to be sole heiress. 675

MOSES v ABINADER 1951 (4) SA 537 (A) .............................................. 681 Codicil amended revoked will. Onus not discharged of proving revival of revoked will. 681

VAN ZYL AND OTHERS v VAN ZYL AND OTHERS 1951 (3) SA 288 (A) ...................................................................................................................... 695

Usufruct in favour of surviving spouse, with reversion should legatee of corpus die without issue. Constituted fideicommissum in favour of legatee. 695


Will with religion-based, conditional disqualification. Not void for uncertainty, and not a nude prohibition. 699

1949 717 KETHEL v KETHEL’S ESTATE 1949 (3) SA 598 (A) .............................. 717

Action to set aside will. Since beneficiaries not joined, no order made. 717

SMITH AND ANOTHER v ESTATE SMITH 1949 (1) SA 534 (A) .......... 727 Bequests taking effect on surviving spouse’s death. No vesting at date of testator’s death. 727

1948 733 MOYCE v ESTATE TAYLOR 1948 (3) SA 822 (A) .................................. 733

Bequest of rent-free tenancy to existing tenant. Bequest a continuance of tenure, rent free. 733

KRIEL v KRIEL AND ANOTHER 1948 (3) SA 309 (A) ........................... 737 Conditional bequest price. Triggers marriage of legatee and vacation of premises by those with user rights. 737


Usufruct over farm in testamentary trust left to eldest son of each usufructuary. Eldest grandson of usufructuary who died without sons excluded. 741

Cases, summaries and themes


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Beneficiary exercised right under will to acquire properties at determined price. ‘Real source’ of the right is ‘disposition by the testator’, which was its fons et origo; consequently right was not pactum de contrahendo, and acquisition was ‘acquisition by succession’. 79

[Nothing ‘like a will for fomenting family dissension’] ................. 79 [Exercise of the option] .................................................................. 80 [The litigation] ................................................................................ 81 [The golden rule of interpreting a will] .......................................... 83 [Personal, not real rights] ................................................................ 83 [Right arose from testamentary disposition, not pactum de contrahendo] ................................................................................... 84


Deceased with will properly executed at time of first marriage, presented with draft will prepared by deceased’s financial adviser. Section 2(3) of Wills Act not applied, since no intention that final document was to be will. 85

[The facts] ....................................................................................... 85 [The court a quo] ............................................................................ 87 [Section2(3) of the Wills Act] ........................................................ 87 [Outcome] ....................................................................................... 89


Nomination of beneficiary under risk-only policy containing beneficiary clause (stipulatio alteri) changed by deceased. Such a policy cannot be an asset in the estate of the policyholder and of joint estate from marriage in community of property, and not an insurance policy under s 15(2)(c) of Matrimonial Property Act. 91

[Is policy asset, nomination an alienation?].................................... 91 [The facts—policy was risk-only] .................................................. 91 [The wife’s argument] .................................................................... 92 [Was policy an asset? (stipulatio alteri)] ........................................ 92 [Was nomination an alienation under Matrimonial Property Act?] 93 [Ndaba distinguished] ..................................................................... 96 [Nomination under policy not transfer of asset in estate] ............... 96

STANDARD BANK v JULY (525/2017) [2018] ZASCA 85 ....................... 97 Deceased executor sold estate assets unlawfully before his death.



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Under the Beningfield exception, beneficiary of deceased estate may claim assets from the person in possession. 97

[Did respondents, not being executors, have locus standi?] ........... 97 [Words and phrases: the Beningfield exception] ............................ 97 [The facts] ....................................................................................... 97 [Application of the Beningfield exception] ................................... 100 [Need for executor] ....................................................................... 103 [Contingent beneficiaries have locus standi] ................................ 103


Permanent life partners with reciprocal duties of support without solemnization under the Civil Union Act; one of them died intestate. Survivor held to be entitled to inherit. 105

[Aspects determinative of status as intestate successor] ............... 105 [Gory as an interim measure] ....................................................... 105 [Gory and the Civil Union Act] .................................................... 107 [Intestate Succession Act] ............................................................ 110 [Section 1(1) as amended by Gory] .............................................. 110 [Interpretative approach] .............................................................. 110 [Has Civil Union Act amended the Intestate Succession Act?] .... 111 [Volks case] ................................................................................... 113 [Conclusion] ................................................................................. 116 [Conclusion] ................................................................................. 117


Will created fiduciary and first and second fideicommissaries; first fideicommissary predeceased fiduciary. Property held to go to second fideicommissary. 119

[Difference between two wills] .................................................... 119 [Both wills provided for property to pass to children and from them to grandchildren]........................................................................... 119 [High Court’s approach] ............................................................... 120 [Immovable Property (Removal or Modification of Restrictions) Act] ............................................................................................... 121 [Words and phrases: fideicommissum multiplex] ......................... 121 [The per stirpes presumption] ...................................................... 122 [The presumption against disinherison]........................................ 122 [Intention of testators] .................................................................. 123


Will provided for charitable testamentary trust, with alternative beneficiaries should the primary appointment prove impossible. Upon failure of primary appointment, alternative appointment held to apply. 125

[Application of Emma Smith] ....................................................... 125 [Freedom of testation] .................................................................. 126 [Testator’s wishes] ........................................................................ 127 [Words and phrases: ‘impossible’] ............................................... 127

JAKINS V BAXTER (178/13) [2013] ZASCA 190 .................................... 129 Antenuptial contract compensated wife for benefits forgone under



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previous marriage with benefits ‘arising’ from deceased’s membership of provident fund. In context of ANC, relevant clause was meant to make financial provision for the wife upon the death of the deceased, and life policy as a benefit falling within ambit of the clause. 129

[Disputed clause] .......................................................................... 129 [Did insurance proceeds accrue to widow or estate?] ................... 129 [Disputed clause in ANC] .............................................................. 129 [Words and phrases: ‘arising’]...................................................... 131 [Outcome] ..................................................................................... 131


Testator bequeathed a usufruct without identifying the remainderman; omitted to attach a list of bequests to the will. Will interpreted and held to be valid. 133

[Untrained advisers—a never-ending source of amazement] ....... 133 [Clauses 2 and 3 of the will] ......................................................... 133 [Intended to be a will?] ................................................................. 134 [Lack of specific bequests: rendered will void?] .......................... 135 [Usufruct over home] .................................................................... 135 [Will created fideicommissum] ..................................................... 136 [Interpreting a will] ....................................................................... 137 [Conclusions] ................................................................................ 138


Testator’s second will did not revoke earlier will. Both wills read together, with later will revoking earlier one in instances of inconsistency. 139

[More than one will] ..................................................................... 139 [Golden rule of interpretation of wills] ......................................... 140 [Earlier will contained important provisions] ............................... 140


Document bearing characteristics of will unsigned. Found to be a will, under the Wills Act. 141

[Section 2(1) of the Wills Act] ..................................................... 141 [Testing the document against the jurisdictional requirements of s 2(3)] ............................................................................................ 143


Charitable testamentary trust included racially restrictive provision. Relevant clause deleted under the Trust Property Control Act. 145

[Section 13 of the Trust Property Control Act] ............................ 145 [History of administration of fund] ............................................... 145 [Authority to amend trust deed] .................................................... 147 [Equality] ...................................................................................... 147 [Racially discriminatory testamentary dispositions] ..................... 148



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[Order] .......................................................................................... 151 SMITH v PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA) ............ 153

Suicide note. Accepted as will under the Wills Act. 153 [Issues] .......................................................................................... 153 [Intention of deceased] ................................................................. 153 [Not donatio mortis causa] ........................................................... 154 [Intended to be will] ..................................................................... 154

HENRIQUES v GILES NO 2010 (6) SA 51 (SCA) ..................................... 155 Crossed wills. Rectification accepted into law but not when testator lacked testamentary capacity. 155

[Rectification of wills] .................................................................. 155 [Procedural issues] ........................................................................ 158 [Testamentary capacity] ............................................................... 159

MEINTJES V COETZER & OTHERS (089/09) [2010] ZASCA 32 .......... 161 Farm fraudulently transferred and registered in the names of deceased’s children, who claimed she had either waived or abandoned (donated) her right to ownership. Neither claim proved, rectification of deeds approved. 161

[Waiver or abandonment of property] .......................................... 161 [Background facts] ....................................................................... 161 [Defendant’s position and counterclaim] ...................................... 162 [Plaintiff’s claim (rei vindicatio), abstract theory of ownership] . 162 [How real rights are acquired, rectification] ................................. 163 [Will takes effect upon death]....................................................... 164 [Abandonment alleged] ................................................................ 164 [Prescription argument abandoned] .............................................. 165 [Rei vindicatio claim ignored] ...................................................... 165 [Knysna Hotel distinguished] ....................................................... 165 [Contrary to public policy and inimical to constitutional values] 165 [Waiver or abandonment not proved (donation)] ......................... 166 [Conclusion] ................................................................................. 166 [Abstract theory of transfer] ......................................................... 167 [Waiver and requirements for and consequences of waiver (donation)] .................................................................................... 168 [Conclusion] ................................................................................. 170

2009 171 HASSAM v JACOBS NO AND OTHERS 2009 (5) SA 572 (CC) ............... 171

Widows in polygynous Muslim marriages excluded by s 1(1) of the Intestate Succession Act. Deficiency rectified by a reading-in. 171

[Issues] .......................................................................................... 171 [Equality jurisprudence] ............................................................... 171 [Approach to legislative interpretation] ........................................ 173 [Is Constitution violated?] ............................................................ 174 [Words and phrases: ‘spouse’] ..................................................... 178 [Section 1(1) of the Intestate Succession Act] .............................. 178 [Remedy] ...................................................................................... 180


Surviving partner in permanent same-sex partnership under



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reciprocal duties of support did not inherit upon intestacy of deceased partner. Statute held to be unconstitutional, and rectifying words read-in. 183

[Unconstitutionality of s 1(1) of the Intestate Succession Act] .... 183 [Remedy] ...................................................................................... 183 [Reading-in] .................................................................................. 184 [Retrospectivity] ........................................................................... 187 [Appeals to the Constitutional Court] ........................................... 192 [Order] .......................................................................................... 198

2006 201 DE RESZKE v MARAS AND OTHERS 2006 (2) SA 277 (SCA).............. 201

Whether a document constituted a will. Intention concurrent with its drafting that it be a will, as opposed to instructions to an attorney, not shown. 201

[When intention for purposes of s 2(3) exist] ............................... 201 [Was document intended to be will?] ........................................... 201 [Requisite intention lacking]......................................................... 202


On the constitutional validity of s 23 of the Black Administration Act and of the principal of primogeniture under the customary law of succession. Orders made as to the interpretation of the relevant statutes. 205

[Effect of the judgment]................................................................ 205 RHODE v STUBBS 2005 (5) SA 104 (SCA) .............................................. 209

Joint will of spouses married in community of property. Held not to constitute a massing. 209

[Nature and requirements and effects of massing] ....................... 209 [Survivor enjoyed usufruct over property] ................................... 209 [Adiation does not of itself achieve a massing] ............................ 210 [Massing of itself has no consequences] ...................................... 210 [Joint wills often ambiguous] ....................................................... 210 [Presumption against massing in marriages of community] ......... 210 [Terms of the joint will] ................................................................ 211 [Has to be read as two wills]......................................................... 213


Document in sealed envelope addressed to deceased’s attorney handed over for safekeeping, together with other sealed documents, to deceased’s friend some years before his death, seemingly in circumstances indicating that he was contemplating suicide. Document held to be a will under s 2(3) of Wills Act 7 of 1953. 215

[Deceased’s intention] .................................................................. 215 [Document was will] .................................................................... 218

DANIELS v CAMPBELL NO AND OTHERS 2004 (5) SA 331 (CC) ........ 219



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Whether ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act includes persons married according to Muslim rites. Held that these acts are to be interpreted as including a party to a monogamous Muslim marriage as a spouse. 219

[Words and phrases: ‘spouse’] ..................................................... 219 [Legislative interpretation] ........................................................... 226 [Case law and ‘spouse’] ................................................................ 231 [Recognition of Muslim marriages].............................................. 234 [Principles of interpretation] ......................................................... 237 [Words and phrases: ‘spouse’] ..................................................... 238 [The doctrine of stare decicis] ...................................................... 240 [This case distinguishable?] .......................................................... 241 [Equality] ...................................................................................... 243 [Appropriate relief] ....................................................................... 245


Bank instructed by client to draft will; never signed by client. Will declared invalid, as not having been drafted by the deceased. 247

[The facts] ..................................................................................... 247 [Words and phrases: ‘opstel’ v ‘laat opstel’] ................................ 247 [Sections 2A and 2(3) of the Wills Act 7 of 1953] ....................... 248 [No escaping literal meaning of s 2(3)] ........................................ 250


Deceased married under customary with illegitimate daughter died intestate. Daughter held not to enjoy any rights under laws intestacy. 253

[Regulation 2(e) of GN R 200 GG 10601 of 6 February 1987] ...... 253 [Regulation not ultra vires] .......................................................... 254 [Regulation not repealed] ............................................................. 255 [Development of rule better left to legislature] ............................ 258 [Regulation not contrary to public policy] .................................... 259 [Zondi v President of the Republic of South Africa] ..................... 259 [A caveat] ..................................................................................... 259

JOWELL v BRAMWELL-JONES AND OTHERS 2000 (3) SA 274 (SCA) ...................................................................................................................... 261

Wife bequeathed usufruct over shares in a holding company—in which she personally held, outright, a significant interest—with investment in listed shares; advised to sell shares and lend proceeds to trust to buy interest-bearing securities. Action for damages found to be premature, since any loss ascertainable only upon her death. 261

[Clause 3 of the will] .................................................................... 261 [The scheme] ................................................................................ 261 [Listed shares were not trust property and so could be alienated] 263 [Trustee vested with shares in holding company still required to exercise voting rights as fiduciary] ............................................... 264 [Conflict of interest] ..................................................................... 264 [Deregistration of holding company breach of trust].................... 264 [Establishing liability] .................................................................. 265 [Damages calculated with reference to future date] ..................... 266



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[Delictual claims for prospective loss] ......................................... 266 [Loss, if any, will only be known on future date] ......................... 269


Bequest to beneficiary subject to bequest price payable in instalments, on condition of immediate acceptance and forfeiture in the event of noncompliance with terms; beneficiary died, leaving property to spouse. Property found to vest, subject to resolutive condition, and to be transmissible. 271

[Clauses 2 and 3 of the will] ......................................................... 271 [Did beneficiary acquire vested right?] ........................................ 272 [Vesting upon death] .................................................................... 272 [Suspensive or resolutive condition?] ........................................... 272 [Testator’s intention v general scheme of will and circumstances] ...................................................................................................... 273 [Dies venit cannot precede dies cedit] .......................................... 273 [Presumptions come into play] ..................................................... 274 [Suspensive v resolutive conditions] ............................................ 274 [Rights transmissible?] ................................................................. 275

1993 277 HARPUR NO v GOVINDAMALL AND ANOTHER 1993 (4) SA 751 (A) ..................................................................................................................... 277

In one of its two pages, a will was merely initialled by the witnesses, rather than being signed. The will was held to be invalid under s 2(1)(a) of the Wills Act 7 of 1953. 277

[Section 2(1)(a) of the Wills Act, 1953] ....................................... 277 [Is initialling by a witness is a signing under s 2(1)(a)(iii) and (iv)?] ...................................................................................................... 278 [Words and phrases: ‘signature’] .................................................. 278 [Words and phrases: ‘sign’, ‘signature’, ‘mark’] .......................... 279 [Why signatures of witnesses?] .................................................... 283 [Words and phrases: ‘mark’] ........................................................ 283 [Signatures and SA case law] ........................................................ 285 [Initials are not marks] .................................................................. 288 [Writings that are not marks or signatures in ordinary sense are not signatures] ..................................................................................... 288 [Intention of testator defeated] ...................................................... 288 [Cases supporting or apposing initials as signatures] ................... 289 [Pre-Union legislation and decisions] ........................................... 290 [The Melville/Dempers/court a quo argument] ............................ 292 [Words and phrases: ‘sign’] .......................................................... 294

1992 297 HILDA HOLT WILL TRUST v COMMISSIONER FOR INLAND REVENUE 1992 (4) SA 661 (A) ................................................................. 297

Under testamentary trust, testatrix’s friend awarded monthly annuity and other benefits, with trust property to go to designated charities upon her death. Bequest to charities found to be unconditional, and vested in them at death. 297

[Surplus income vested in person in whom trust capital vested] .. 297 [Was bequest to charities contingent or certain?] ......................... 297



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[Nature of interest of beneficiary in continuance] ........................ 297 [Not a vested interest, therefore not a fiduciary interest] ............. 298 [Interest of beneficiaries on termination] ..................................... 299 [Bequest was certain, although not in amount] ............................ 300 [When fideicommissary is charity, survivorship is not an issue] . 300

COHEN NO v ROETZ NO AND OTHERS 1992 (1) SA 629 (A) .............. 303 Inter-generational fideicommissum created in will in favour of testator’s three children, with devolution to the eldest child of each child and then of their successors. Found to exclude adopted children, despite statutory accommodation of adopted children generally. 303

[Conditions (iii) and (iv) of the will] ............................................ 303 [Words and phrases: ‘eldest child’] .............................................. 303 [Taking effect of will] ................................................................... 303 [Section 71(2) of the Children’s Act 31 of 1937] ......................... 304 [Section 20(2) of the Child Care Act 74 of 1983] ........................ 304 [Golden rule of interpretation] ...................................................... 304 [Strong indications pointing to confinement to blood relations] .. 305 [Conditions (iii) and (iv) compliment each other] ........................ 306 [Words and phrases: ‘eldest child’] .............................................. 306 [Effect of 1937 Act] ...................................................................... 307 [Effect of 1983 Act] ...................................................................... 307 [Application to will of new legislation] ........................................ 309 [Effect of 1983 Act] ...................................................................... 309 [Boswell en Andere v Van Tonder] ............................................... 309 [Legal fiction gives way to contrary intention expressed in will] 312


Liability of deceased to ex-wife under agreement incorporated in divorce order relevant to estate duty calculation. Liability found to be more than the tax authorities allowed but less than what was claimed as a deduction in the estate. 313

[Obligation to meet ex-wife’s medical costs a liability of deceased’s estate] ............................................................................................ 313 [Adjustment for increased future medical costs] .......................... 313 [Obligation to pay monthly maintenance] .................................... 314 [Inflationary adjustment] .............................................................. 314 [User right over fixed property] .................................................... 315 [Establishing deceased’s debt for estate duty purposes] ............... 316 [Estate duty capitalized values inapplicable] ................................ 316 [Treatment of annuities] ............................................................... 316 [Summary] .................................................................................... 317


Under massed estate, survivor enjoyed life interest, with devolution to a trust with daughters as income beneficiaries, and capital to go their lawful children. ‘Children’ found to include grandchildren with predeceased parents. 319

[Clause 7 and provisos 3 and 6 of the will] .................................. 319 [Words and phrases: ‘lawful children’] ........................................ 320 [The Galliers and Others v Rycrofti rule] ..................................... 323



—35 —

[Words and phrases: ‘children’ means descendants in the first degree] .......................................................................................... 323 [Modification of the rule in Galliers v Rycroft] ............................ 324 [The rule in Galliers v Rycroft not obiter] .................................... 324 [Apply Galliers v Rycroft unless there are indicia to the contrary] ...................................................................................................... 325 [The indicia] ................................................................................. 325 [Words and phrases: ‘issue’] ........................................................ 325 [Words and phrases: ‘remoter descendants’] ................................ 326 [Equal treatment] .......................................................................... 327 [Galliers v Rycroft presumption rebutted] .................................... 327

DU PLESSIS NO v STRAUSS 1988 (2) SA 105 (A) .................................. 329 The testator bequeathed a farm to his son by way of fideicommissum, subject to the condition that, should he die without lawful descendants, the farm would go to his sisters or their lawful descendants, by substitution; son died, leaving children. Children found to be fideicommissary beneficiaries. 329

[The facts] ..................................................................................... 329 [The Cato case] ............................................................................. 331 [The common law] ........................................................................ 332 [Tacit fideicommissa] ................................................................... 332 [Conditional fideicommissum plus sine liberis-clause suggests tacit appointment of fideicommissa] ..................................................... 333 [Cato case] .................................................................................... 335 [Common law—tacit fideicommissum] ........................................ 338 [It would be preferable to rely upon intention of testator] ............ 338 [Reason for si sine liberis decesserit conditions] ......................... 339 [Why not expressly, rather than by implication?] ......................... 339 [Accepting the law of Holland] .................................................... 340 [But conjecturae in the will would have been sufficient] ............. 340


Before executing his will, the testator created two trusts, in his will appointing them (via their trustees) as beneficiaries of the residue of his estate. Bequest held to be valid. 341

[Inter vivos trusts appointed as beneficiaries under will] ............. 341 [Arguments as to invalidity] ......................................................... 342 [Incorporation by reference] ......................................................... 342 [Bequest was not to beneficiaries of the trusts] ............................ 343

1985 345 HEYMANS v VAN TONDER 1985 (3) SA 864 (A) .................................. 345

Surviving spouse adiated under joint will providing that, should the survivor remarry, a sum be either paid to the son or security furnished. Choice of providing security found to subsist only for so long as son was a minor. 345

[Clauses 3, 4 and 5 of the will] ..................................................... 345 [Purported choice requires interpolation] ..................................... 346 [Dies cedit and dies venit]............................................................. 346 [Alternative interpolation] ............................................................ 347 [Dies cedit and dies venit]............................................................. 347



—36 —

[Intention to favour survivor over son] ......................................... 349 [Spared the inconvenience of paying son] .................................... 350 [Repetition of son’s age] ............................................................... 351 [Word order] ................................................................................. 351 [Consequences of payment while son a minor] ............................ 351 [Type of security envisaged] ........................................................ 351

CRONJE v KRUGER EN ’N ANDER NNO 1985 (2) SA 812 (A) ............. 353 Joint will bequeathed joint estate to survivor; fideicommissum over part in favour of testators’ son, including movables and livestock as found on a particular farm upon the survivor’s death; survivor had in her lifetime disposed of some of these movables. Son successfully obtained compensation for diminution in movables. 353

[Clause 4 of the will] .................................................................... 353 [Ordinary fideicommissum or fideicommissum residui?].............. 354 [Words and phrases: ‘wat mag oorbly’, ‘die dan te vinde boedel’] ...................................................................................................... 354 [Wording in casu differs but has the same effect] ........................ 356 [Support from the terms of the will] ............................................. 356 [Rights of disposal under a fideicommissum] ............................... 359 [Extraneous issues] ....................................................................... 359 [Was survivor entitled to dispose of movables?] .......................... 359 [Scheme of the will] ..................................................................... 360 [How son was meant to benefit] ................................................... 360 [Two deductions show that survivor lacked right of disposal] ..... 360 [Supported by wording of the will] .............................................. 361 [Empty shell of a farm was not contemplated] ............................. 363 [Viva voce evidence might have been decisive] ........................... 363 [In any event, finding justifiable in proceedings by way of exception] ..................................................................................... 363 [The deciding vote] ....................................................................... 364 [Case should never have been decided on exception] .................. 364


Bequest subject to forfeiture clause in the event of anticipation or encumbrance of interest or inheritance; beneficiary promised a portion of anticipated in heritance in consent paper. Action did not trigger forfeiture clause. 365

[The forfeiture clause of the will] ................................................. 365 [The consent paper—para 12] ...................................................... 365 [Not a dealing in advance with inheritance] ................................. 365 [No benefit from patrimony] ........................................................ 366 [Inheritance not jeopardized] ........................................................ 366 [Inheritance not encumbered] ....................................................... 367 [Words and phrases: ‘encumbrance’] ........................................... 367 [Personal right to demand performance] ...................................... 367 [Construction of forfeiture clauses] .............................................. 367


Will created discretionary trust, empowering trustees to make distributions at their discretion among designated beneficiaries;



—37 —

termination clause included proviso purportedly affording them the power to create trusts at will. Bequest found to be valid; the proviso to be invalid, although with no effect upon the validity of the testamentary trust. 369

[Clauses 4(b) and (d) of the will] .................................................. 369 [A trust is not a fideicommissum] ................................................. 370 [Powers of appointment granted to trustees] ................................ 370 [Proviso to clause 4(d) invalid] ..................................................... 371 [Invalid delegation of will-making power to administrators] ....... 371

1983 373 DIEDERICHS v GOUWS EN ’n ANDER 1983 (3) SA 28 (A) .................. 373

Bequest to survivor in joint will, with special bequests out of ‘the estate as then found’ upon the death of the survivor. The survivor was precluded from disposing of the property. 373

[Principal clause of the will] ......................................................... 373 [Fideicommissum created] ............................................................ 373 [What were powers of fiduciaria?] ............................................... 374 [Words and phrases: ‘the estate as then found’] ........................... 374 [Unlikely that survivor enjoyed power of disposal] ..................... 376 [Words and phrases: ‘the estate as then found’] ........................... 376 [Conditional power of disposal by survivor?] .............................. 376 [Indicia in the will] ....................................................................... 377 [Survivor lacked power of disposal] ............................................. 377


Usufruct in property enjoyed by testator’s wife, with conditional fideicommissum in favour of grandson, subject to a fideicommissary substitution, should grandson not dispose of property by transaction or by will; grandson died intestate, while married in community of property. Property fell into joint estate of late grandson and his wife. 379

[Clauses 2 and 5 of the will] ......................................................... 379 [Did clause 5 apply only if grandson predeceased grandmother?] 379 [Clause 2 created a conditional fideicommissum] ......................... 379 [Clause 5’s two conditions are disjunctive] .................................. 380 [Conditional substitution] ............................................................. 381 [Object to avoid intestacy] ............................................................ 381 [Direct substitution ruled out] ....................................................... 381 [Dufill’s case] ............................................................................... 382 [Words and phrases: ‘absolutely’] ................................................ 382 [Words and phrases: ‘his interest’] ............................................... 383 [Compendious substitution (direct and fideicommissary)] ........... 383 [Clause 5 comprehends a fideicommissary substitution] ............. 384 [Effect of marriage in community; not a disposal] ....................... 384 [Clause 5 not aimed at death of grandson before that of grandmother] ................................................................................ 386 [Grandson’s right sunder clauses 2 and 5] .................................... 387 [Was grandson’s bequest burdened with a fideicommissum?] ...... 388 [Fideicommissum residui] ............................................................ 389 [No fideicommissum, half to go to brother] .................................. 390



—38 —


Grandson inherited property by way of fideicommissum, with limited power to nominate fideicommissarii by way of testamentary disposition; purported in his will so to dispose of the property, but subject to terms contrary to his testamentary power. No honest intention to exercise his power, and in fact had not so exercised it. 391

[Clause 1 of the will] .................................................................... 391 [Bequest to grandchild of fideicommissum, with limited testamentary power of substitution].............................................. 392 [Did grandchild exercise his testamentary power?] ...................... 392 [Estate Orpen case] ...................................................................... 392 [Surrounding circumstances] ........................................................ 393 [Knowledge of restrictions] .......................................................... 393 [Addition of extraneous terms] ..................................................... 393 [Clauses 3 and 4 invalid but illuminating of intention] ................ 393 [Did grandson mean to exercise his power?] ................................ 395 [Improper addition of terms designed to thwart grandparents’ will] ...................................................................................................... 395 [Power of court] ............................................................................ 395

SMIT v DU TOIT EN ANDERE 1981 (3) SA 1249 (A) ............................. 397 Alienation of property bequeathed by way of fideicommissum prohibited except to legitimate children. Sale and bequest by beneficiary to her son upheld. 397

[Not conventional, positive fideicommissum] ............................... 397 [Oliver’s case]............................................................................... 398 [Amedment allowed, but to no effect] .......................................... 400 [Fideicommissum with specific prohibition against disposal, save to identified persons] ........................................................................ 400 [Application to present matter] ..................................................... 405


The focus of a poorly drafted will was its clause 6, which failed to make it clear whether vesting in the beneficiaries depended upon their surviving to a later date, or what was to be done with surplus income. Vesting found to take place at second date, and surplus income accrued to the capital of the residue. 407

[Clause 6 of the will] .................................................................... 407 [In the alternative, a fideicommissum?] ........................................ 407 [Sive’s Estate] ............................................................................... 408 [Schaumberg v Stark] ................................................................... 408 [Greenberg’s case] ....................................................................... 408 [Surplus income not to be paid in the meantime] ......................... 410 [Maxim expressio unius est exclusio alterius applicable] ............ 410 [Surplus income became capital of the residue of the estate] ....... 412 [Was vesting on first or second date?] .......................................... 412 [Vesting a morte testatoris?] ........................................................ 412 [Deficiencies of will] .................................................................... 415 [Deficiencies of will go to its construction] ................................. 418



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[Vesting on first or second date?] ................................................. 418 [Surplus income] ........................................................................... 421 [‘Advance’ was loan] .................................................................... 422 [Capital v income] ........................................................................ 423 [Other indications in will] ............................................................. 425 [Vesting took place on the second date: survival to date required] ...................................................................................................... 426 [No distribution of surplus income] .............................................. 426 [Words and phrases: ‘arm-chair’ evidence] .................................. 426 [Other evidence of surrounding circumstances] ........................... 428 [Addendum] .................................................................................. 429 [Conditional fideicommissum?] .................................................... 429 [Surplus income accrued to capital] ............................................. 430


Control of farming property left to Commission, with user rights of two types reserved for most needy of identified beneficiaries, otherwise to be let on the open market. None of applicants qualified for access to these user rights, and none of them were prejudiced by the letting of the property on the open market. 431

[Applicants enjoyed no rights that might be prejudiced] .............. 431 [Terms of will] .............................................................................. 431 [No compulsory letting to beneficiaries demanded] ..................... 433 [None of beneficiaries needy] ....................................................... 433 [On prejudice to beneficiaries] ..................................................... 433 [Beneficiaries enjoyed no rights] .................................................. 433 [But they did enjoy locus standi?] ................................................ 434


Commissioner of oaths failed to append his certificate to the will marked by testator. Will held to be invalid. 435

[Content of certificate v its wording] ............................................ 435 [Person who made the will made the mark] ................................. 435 [Extraordinary circumstances not catered for] .............................. 436 [Will speaks from the date of death] ............................................. 436 [Office of certifier must be supplied] ........................................... 437 [Post mortem recitifation] ............................................................. 437 [Contemporaneous identification required] .................................. 439


Testator signed will with mark in presence of commissioner of oaths, who appended certificate required by s 2(1)(a)(v) of Act 7 of 1953. Certificate complied, even though commissioner did not use the ipsissima verba of the provision. 441

[Prescribed formalities for execution of documents] .................... 441 [Primary object of will-signing formalities] ................................. 441 [Commissioner did not follow wording of act] ............................ 442



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[Must ipsissima verba of provision be used?] .............................. 442 [Object of provisions governing the use of a mark] ..................... 443


Bequest to eldest son, and from him to ‘the eldest heir male’ of such son. Interpreted as identifying the eldest son’s heirs, from eldest son to eldest son. 445

[Numbered extracts from will] ..................................................... 445 [‘The eldest heir male of’] ............................................................ 446 [Construction of wills] .................................................................. 446 [Lateral devolution?] .................................................................... 446 [Eldest son to eldest son?] ............................................................ 447 [Relevant circumstances at time of making will] ......................... 447 [Plain meaning of will] ................................................................. 447 [Search for indications] ................................................................ 448 [Successive lateral devolution unheard of] ................................... 448

BOSWELL EN ANDERE v VAN TONDER 1975 (3) SA 29 (A) .............. 451 Bequest to testators’ daughter; to go to her lawful issue; failing them, to other children or their lawful issue. Daughter’s adopted child excluded from qualification, despite s 74(2) of Act 33 of 1960. 451

[Terms of will] .............................................................................. 451 [Under ordinary rules of interpretation, ‘issue’ confined to bloodline] ...................................................................................... 452 [Words and phrases: ‘child’] ........................................................ 452 [Section 74(2) of Children’s Act 33 of 1960] ............................... 452 [To what extent statutory fiction prevails] .................................... 453 [Not a rule of interpretation] ......................................................... 453 [Will does not engage the Act] ..................................................... 457 [Even if adopted child was of the bloodline, he would not have qualified under condition (c) of will]............................................ 459


Will gave beneficiary option to acquire immovable property at fixed price. Held to be acquisition by testamentary succession for transfer duty purposes. 461

[Words and phrases: ‘acquired’ (transfer duty)] ........................... 461 1971 465

LELLO AND OTHERS v DALES NO 1971 (2) SA 330 (A) ...................... 465 Bequest to brother or lawful issue, if any; died without issue. Devolution held to be to other beneficiaries. 465

[Extract from will] ........................................................................ 465 [Words and phrases: ‘verbis tantum’] ........................................... 465 [Verbis tantum v jus accrescendi] ................................................ 465 [Probable intention of testator] ..................................................... 466 [Words and phrases: ‘conjectura’] ............................................... 467 [The will] ...................................................................................... 468 [The probabilities] ........................................................................ 468 [Division not intended to survive its purpose] .............................. 470 [Anderson’s case] ......................................................................... 470



—41 —


Bequest of farms to children; subsequent heirs required to bear names of testators. Not invalid for uncertainty; constituted a fideicommissum. 473

[Invalid for uncertainty?] .............................................................. 473 [Grusd v Grusd] ............................................................................ 473 [Arenson v Estate Hart] ................................................................ 473 [Intention of testators] .................................................................. 475 [If naming term fails] .................................................................... 477 [Term reasonable; fideicommisum created] .................................. 479


Daughter as usufructuary with power to appoint successors in full title, exercising power in her will, but predeceasing the testator. Her testamentary disposition invalid. 481

[Extract from clause 14 of will] .................................................... 481 [Clause 4 of wife’s will] ............................................................... 481 [Power of appointment/power of disposal] ................................... 482 [Power of appointment competent] .............................................. 483 [Power attaches to bequest] .......................................................... 483 [Testator’s will speaks from date of death] .................................. 484 [Golden rule of interpretation] ...................................................... 484 [No delegation of testamentary power] ........................................ 485 [Power of appointment is exception to rule] ................................. 486

CONRADIE EN ANDERE v SMIT 1966 (3) SA 368 (A) .......................... 489 Daughter left portion of farm, with improvements. Intended portion identified as homestead on farm at the time of execution of the will; no interference with costs order de bonis propriis against executor. 489

[Could one of two executors act alone?] ...................................... 489 [Jurisdiction of court] ................................................................... 489 [How to divide farm] .................................................................... 490 [Whether improvements or improvements and land] ................... 490 [The envisaged improvements]..................................................... 490 [Invalid for vagueness?] ............................................................... 491 [Election intended?] ...................................................................... 491 [Words and phrases: ‘residue’] ..................................................... 491 [Equality not required] .................................................................. 492 [Value not an issue] ...................................................................... 492 [No reason to interfere with decision of trial court] ..................... 492 [Costs order de bonis propriis] ..................................................... 492


Will created perpetual fideicommissum in favour of eldest son in each generation; first eldest son died without issue. Substitution to be applied in each generation, whenever an eldest son leaves no male descendants. 495

[How a will is to be interpreted] ................................................... 495



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[Perpetual fideicommissum] .......................................................... 495 [Death of eldest son without male descendants not envisaged] .... 495 [Will ambiguous?] ........................................................................ 496 [Substitution down through the generations] ................................ 497 [Previous decision] ....................................................................... 497 [Moolman’s case] ......................................................................... 498


Claim by widow for maintenance from estate of late husband. Condonation for late noting of appeal refused, prospects of success being too slender. 501

[Prospects of success] ................................................................... 501 [Law of Holland] .......................................................................... 501 [Roman-Dutch law] ...................................................................... 504 [Abrogation by disuse] ................................................................. 504 [Extension by judicial authority declined] .................................... 505 [Prospects of success slender] ...................................................... 506

VAN RENSBURG v VAN RENSBURG EN ANDERE 1963 (1) SA 505 (A) ...................................................................................................................... 507

Mutual will of husband and wife written out by husband but not confirmed by wife. Surviving husband prohibited from benefiting under will. 507

[Opportunity for fraud] ................................................................. 507 [Marital regime not significant] .................................................... 508 [Not an extension of the rule] ....................................................... 508 [Rule applies to married parties]................................................... 509 [No confirmation by late wife] ..................................................... 510

WOLMAN AND OTHERS v WOLMAN 1963 (2) SA 452 (A) ................. 511 Guardians represented minors in court, despite possible conflict of interest. Decision set aside and case remitted to trial court, for appointment of `. 511

[Minors with guardians and curator-ad-litem] ............................. 511 [Case remitted to trial court] ......................................................... 512


Farm bequeathed to each of two sons, each subject to a right of pre-emption in favour of his brother. Could not prevent sale by public auction upon insolvency of one of the brothers. 513

[Clause 24 of will] ........................................................................ 513 [Restraint, binding legatee only] .................................................. 513 [Right of first refusal upon voluntary sale] ................................... 514 [Trustee selling no more than inheritance] ................................... 514


Widow a vested income beneficiary of estate property, bequeathed to a trust, claimed as income a dividend paid to extinguish the deceased’s indebtedness to the declaring dividend. Dividend held not to be income of the estate. 515

[When income is not income] ....................................................... 515 [No for benefit of estate] .............................................................. 516



—43 —

[Duty to discharge debts] .............................................................. 516 [Duties of fiduciary] ..................................................................... 516 [Purpose of dividend] ................................................................... 518 [Other issues] ................................................................................ 520


Bequest to married daughter subject to a usufruct to her surviving spouse; subsequently divorced. On her death, usufruct to ex-husband upheld. 521

[Husband clearly identified] ......................................................... 521 [No ground to add qualifying words] ........................................... 521 [Did wording reflect causa finaliz of testators?] .......................... 523


Joint will dependent upon survivor’s making another will; survivor dies seven moths later, without making a will. Joint will inapplicable; survivor died intestate. 525

[Clause 3 of the will] .................................................................... 525 [Words and phrases: ‘versuim’] .................................................... 525 [Failure to make a will over whole period of survivorship?] ....... 525 [Simultaneous or successive deaths] ............................................ 526

EX PARTE BURGER EN ANDERE 1957 (3) SA 644 (A) ........................ 529 Bequest to grandchildren, subject to a usufruct in favour of the testator’s child, who, being beyond child-bearing age, attempted to vest the property in her children, subject to a usufruct in her favour. Will created a fideicommissum in favour of grandchildren and great-grandchildren; grandchildren could receive transfer, subject to the fideicommissum. 529

[Words and phrases: ‘grandchildren’] .......................................... 529 [Voet on children] ......................................................................... 529 [1. Cronje’s case] .......................................................................... 529 [2. Botha’s case] ........................................................................... 530 [3. van Zyl’s case] ......................................................................... 532 [4. Wheeler’s case] ....................................................................... 533 [Bequest postponed later than testator’s death] ............................ 533 [Unborn children] ......................................................................... 534 [Fideicommissum created for grandchildren and great-grandchildren] ............................................................................... 534

SPIES NO v SMITH EN ANDERE 1957 (1) SA 539 (A) ........................... 535 Validity of will upheld despite pressure brought to bear upon testator. 535

[Pressure as ground of invalidity, and, if so, degree required] ..... 535 [Freedom of testation and interference] ........................................ 535 [No longer a genuine will] ............................................................ 537 [Degree of pressure or urging] ...................................................... 537 [Lack of evidence] ........................................................................ 538 [The Placaat of Keiser Karel of 4th October 1540] ....................... 541

O’DWYER v ESTATE MARKS AND OTHERS 1957 (1) SA 287 (A) ..... 543 Under will, marriage outside of the Jewish faith by children entailed



—44 —

forfeiture. Under construction of will and codicil, ‘children’ found not to include ‘grandchildren’. 543

[Words and phrases: ‘children’] ................................................... 543 [Fiduciary benefit] ........................................................................ 543 [Previous will] .............................................................................. 544 [Presumed knowledge] ................................................................. 545 [Words and phrases: ‘children’] ................................................... 546 [Revoked provisions] .................................................................... 546 [Sentiment v actual language] ...................................................... 547

GREEFF v ESTATE GREEFF 1957 (2) SA 269 (A) ................................... 549 Bequest to daughters subject to fideicommissum in favour of testator’s descendants, subject to reversion to all children should a daughter die without issue. Held to constitute fiduciary substitution, in favour of testator’s surviving son. 549

[Extract from will] ........................................................................ 549 [Direct v fideicommissary substitution] ....................................... 549 [Fideicommissary substitution] .................................................... 550 [Words and phrases: ‘all our children’] ........................................ 550 [Gift in favour of a class] .............................................................. 550 [Jus accrescendi] .......................................................................... 550 [Verbis tantum] ............................................................................. 550 [Those predeceasing the deceased enjoyed no rights] .................. 552

PHIPSON AND OTHERS v JARDINE AND OTHERS 1957 (3) SA 268 (A) ...................................................................................................................... 553

Bequest to son subject to a prohibition against alienation outside of a class. Class too poorly identified for a fideicommissum to have been created. 553

[Extract from will] ........................................................................ 553 [Prohibition against alienation]..................................................... 554 [Those meant to be favoured by fideicommissum must be identified with reasonable certainty] ............................................................. 555 [Secondary fideicommissum] ........................................................ 555


Surviving spouse left usufruct over residue of estate, with power of appointment, subject to gift over. Dominium found not to vest in wife, who enjoyed a usufructuary interest, ceasing on her death. 559

[Power of appointment exercisable only by way of fideicommissum?] ......................................................................... 559 [Westminster Bank case] ............................................................... 559 [Not a fiduciary interest but a usufruct] ........................................ 560

SCHAUMBERG v STARK NO 1956 (4) SA 462 (A) ................................. 563 Estate bequeathed to wife, to be administered by a trustee, with all income to go to the wife, and ultimate devolution to the children, subject to a set-aside for one of the children, who predeceased his mother. No vesting in trustee; wife enjoyed fiduciary interest; owned but could not access the set-aside, which did not vest in deceased son. 563

[Extract from will] ........................................................................ 563



—45 —

[Did deceased son acquire vested interest?] ................................. 564 [Smith’s case] ................................................................................ 564 [No vesting in trustees] ................................................................. 564 [Sive’s Estate case] ....................................................................... 564 [Widow’s interest fiduciary, not usufructuary]............................. 565 [Dominant clause] ......................................................................... 565 [Strydom case] .............................................................................. 566 [Usufructuary or fiduciary? In cases of doubt…] ......................... 567 [Jus accrescendi and verbis tantum] ............................................. 568 [Deceased son’s share] ................................................................. 568


Endorsement of will required by statute to maintain its validity upon marriage of testator. Will executed before marriage but clearly contemplating marriage found to comply. 569

[Endorsement can be before marriage] ......................................... 569 [Words and phrases: ‘endorse’] .................................................... 569


First-dying spouse provided for children, subject to a time clause, as well as for a massing of the joint estate, with the surviving spouse adiating. The massing applied to the whole estate. 571

[Clauses 1 to 4 of the will] ............................................................ 571 [Mother’s estate vested in children on her death, with time clause] ...................................................................................................... 572 [Massing of joint estate] ............................................................... 572 [Surviving spouse a fiduciary; children fideicommissaries?] ....... 572 [Under massing, children acquired vested rights?] ....................... 573 [A familiar model will] ................................................................. 573 [Decided cases] ............................................................................. 576 [Conditional massing] ................................................................... 576 [Massing continued after distributions to children] ...................... 577 [Master wrongly allowed surviving spouse to take over joint estate] ...................................................................................................... 578 [Not conditional massing]............................................................. 579 [Children obtained a vested right in mother’s estate] ................... 579 [Canon of construction of a will] .................................................. 580 [What to call beneficiaries] ........................................................... 580 [Joint will is subject to the conditio juris] .................................... 581 [Speculation needless] .................................................................. 581 [Respondents were ultimate beneficiaries] ................................... 583


A will and a codicil conferred ownership upon the testator’s children, with the income to be paid to them during their lifetimes, subject to disposition by them by will or, failing a will, to their next of kin. Their interests found to be fideicommissa, subject to death duties under s 3(4)(b) of the Death Duties Act. 585

[Clause 9 of the will] .................................................................... 585



—46 —

[Codicil] ........................................................................................ 585 [Usufructuary or fiduciary interest?] ............................................ 585 [‘Other like interest’] .................................................................... 585 [Administration of residue divorced from its ownership] ............ 586 [Gift over if no testamentary disposition] ..................................... 587 [Nudum praeceptum] .................................................................... 587 [Westminster Bank case] ............................................................... 589 [Fideicommissum followed by general power of appointment] ... 589 [Applying Westminster Bank case] ............................................... 591 [Fiduciary interest nonconvertible]............................................... 592 [The several possibilities] ............................................................. 592 [Words and phrases: ‘power of appointment’ v fideicommissum] 593 [Words and phrases: ‘fiduciary interest’] ..................................... 596 [Reading a codicil]........................................................................ 596 [Effect of codicil].......................................................................... 597 [Usufructuary interest did not become a fiduciary interest] ......... 598 [Construing testamentary documents] .......................................... 598 [Immediate vesting, enjoyment postponed] .................................. 600 [Effect of death] ............................................................................ 600 [Legal solecism] ........................................................................... 600 [Powers of appointment] .............................................................. 601 [Piae causae] ................................................................................ 601 [No fiduciary interest passing]...................................................... 601 [Words and phrases: trustees as ‘fiduciaries’] .............................. 602 [Vesting in the deceased] .............................................................. 603 [Death Duties Act] ........................................................................ 604


The testator’s widow enjoyed a usufructuary interest in a property, with the estate being held in trust, for the benefit of the sons of the marriage, who predeceased their mother. Despite the trust, ownership of the estate property vested in the sons, and, failing them, their children. 605

[Canons of construction] .............................................................. 605 [Smith and Another v Estate Smith] .............................................. 605 [What vests in beneficiaries upon testator’s death] ...................... 605 [Widow was usufructuary] ........................................................... 607 [Property vested in sons] .............................................................. 607 [Canons of construction] .............................................................. 608 [With two successive interests, the second vests] ........................ 609 [A trust is not a fideicommissum] ................................................. 610


Will vested property in trustees. Deceased beneficiary found to have no vested beneficial interest in that property. 611

[Clause 45 of will] ........................................................................ 611 [No claim of deceased against accumulated income] ................... 612 [Did deceased enjoy fiduciary interest?] ...................................... 613 [Deceased acquired vested right subject to a fideicommissum] .... 616 [No bequest to trustees] ................................................................ 616



—47 —

[Even if trustees are fiduciaries of the bare dominium] ................ 618 [Children’s fiduciary interests—death duties] .............................. 619 [Accrued succession—succession duty] ....................................... 621 [Applying the statute] ................................................................... 622 [No succession] ............................................................................. 623 [No vested beneficial interest] ...................................................... 624 [Effect of the will] ........................................................................ 626 [Fideicommissum purum or conditional] ...................................... 627 [Conditional fideicommissum] ...................................................... 628 [Estate vested in trustees] ............................................................. 629 [Words and phrases: two kinds of ‘fiduciary’] ............................. 629


Farm bequeathed to son, with benefits under mining contract to be divided equally among all the children, subject to usufruct in favour of surviving spouse, who renounced it, in favour of the son. Rights under contract did not vest in son, who could not cancel it; in any event, the court was bound to have regard to the interests of the other beneficiaries. 631

[Clauses 3 to 5 of the will] ............................................................ 631 [Forfeiture clauses in leases] ........................................................ 631 [Landowner not only person interested in royalties] .................... 632 [Interpretation of will: circumstances] .......................................... 633 [Rights of other beneficiaries] ...................................................... 635 [Vesting of rights under contract] ................................................. 635

EX PARTE OPPERMAN 1954 (1) SA 358 (A) .......................................... 637 Farm left to testator’s son to go to his sisters should he die without children. His inheritance constituted a fideicommissum, which could not be expunged. 637

[Extract from will] ........................................................................ 637 [Circumstances existing at date of will] ....................................... 637 [Fideicommissum imposed] .......................................................... 637 [Fideicommissum imposed] .......................................................... 638

EX PARTE MELLE AND OTHERS 1954 (2) SA 329 (A) ......................... 641 Will appointed children as sole heirs, subject to a time-clog on some of the assets. Children found to enjoy vested interests ab initio. 641

[Fourth, seventh and eighth clauses of will] ................................. 641 [Principles of interpretation of wills] ............................................ 642 [Dominant clause] ......................................................................... 642 [Reconcile conflicting clauses] ..................................................... 642 [Dominant clause] ......................................................................... 642 [Vested right, subject to time clause] ........................................... 643 [Position of minors] ...................................................................... 644 [Applying the dominant clause].................................................... 645


Fideicommissum subject to marriage and lawful issue. Lapsed not upon marriage but death, leaving issue. 647

[When fideicommissum lapsed] .................................................... 647



—48 —

[Disposal of burdened property] ................................................... 648 [Advantage of fideicommissaries] ................................................ 648

GLASS AND OTHERS v KER NO AND OTHERS 1953 (1) SA 550 (A) . 651 Shares to be offered to beneficiaries at face value. Acceptance of option a patrimonial event. 651

[Extract from will] ........................................................................ 651 [Bequest price v option] ............................................................... 651 [Treatment of options to purchase] ............................................... 651 [Acceptance of offer created contract] ......................................... 654 [Condition conferred a right] ........................................................ 654 [Intention of testator determined when right became exigible] .... 655 [Form of action immaterial] ......................................................... 656 [Option to purchase] ..................................................................... 657

BYDAWELL v CHAPMAN NO AND OTHERS 1953 (3) SA 514 (A) ..... 659 Family agreement purported to dispose of an estate, contrary to the provisions of the will. Devolution of estate unaffected. 659

[Extract from will] ........................................................................ 659 [Family agreement] ....................................................................... 660

HARTER v EPSTEIN 1953 (1) SA 287 (A) ................................................ 667 Balance of estate left to discretion of executors. Interpretation of will showed that identified beneficiary not entitled to the residue, which was therefore required to be dealt with under the rules of intestacy. 667

[Golden rule of interpretation] ...................................................... 667 [Application of rule] ..................................................................... 667 [Breach of testamentary power].................................................... 668 [Words and phrases: ‘only’] ......................................................... 669 [Words and phrases: ‘in cash or shares as she wishes’] ............... 670 [Interpretation of wills] ................................................................. 671 [Punctuation] ................................................................................ 671 [Words and phrases: ‘in cash or shares as she wishes’] ............... 672


Testator appointed daughter and her children, born and still to be born, as sole heirs, with liquidation and distribution to be accomplished within three month. Daughter held to be sole heiress. 675

[Clause 1 and 2] ............................................................................ 675 [Simultaneous v successive heirs] ................................................ 675 [Words and phrases: ‘and still to be born’] .................................. 677 [Vulgar substitution intended] ...................................................... 677 [Children of legatee take only if legatee fails to take] .................. 677 [Rapid liquidation and distribution called for] ............................. 679 [Words and phrases: ‘divided amongst my heirs’] ....................... 679

MOSES v ABINADER 1951 (4) SA 537 (A) .............................................. 681 Codicil amended revoked will. Onus not discharged of proving revival of revoked will. 681

[Doctrine of revival] ..................................................................... 681 [Doctrine of incorporation] ........................................................... 681 [Doctrine of revival] ..................................................................... 682



—49 —

[Doctrine of revival: requirements] .............................................. 683 [Applied to the facts] .................................................................... 684 [Onus not discharged] ................................................................... 685 [No incorporation in this case] ..................................................... 686 [Partial revival] ............................................................................. 687 [Re Estate Marks] ......................................................................... 687 [English principle of revival of revoked wills] ............................. 688

VAN ZYL AND OTHERS v VAN ZYL AND OTHERS 1951 (3) SA 288 (A) ..................................................................................................................... 695

Usufruct in favour of surviving spouse, with reversion should legatee of corpus die without issue. Constituted fideicommissum in favour of legatee. 695

[Extract from clause X of the will] ............................................... 695 [Cardinal rule of construction of will] .......................................... 695 [Words and phrases: ‘in lewe synde’] ........................................... 696 [Fideicommissum created] ............................................................ 697


Will with religion-based, conditional disqualification. Not void for uncertainty, and not a nude prohibition. 699

[Void for uncertainty] ................................................................... 699 [Construction of disqualifying or disentitling provision] ............. 699 [Against public policy] ................................................................. 701 [Nude prohibition] ........................................................................ 702 [Void for uncertainty] ................................................................... 704 [Suspensive and resolutive conditions] ........................................ 704 [Clause afflicted by incurable uncertainty and void] .................... 705 [Nude prohibition] ........................................................................ 706 [No vesting ex testamento] ........................................................... 707 [Logically or legally impossible conditions] ................................ 708 [Wasserzug v Administrators Estate Nathanson] ......................... 709 [Void for uncertainty] ................................................................... 711 [The first condition] ...................................................................... 713 [The second condition] ................................................................. 714 [Religious persuasion] .................................................................. 714


Action to set aside will. Since beneficiaries not joined, no order made. 717

[Joinder of parties] ........................................................................ 717 [Bekker v Meyring, Bekker’s Executor] ........................................ 717 [Three types of cases on the interpretation or validity of wills] ... 723 [Interested parties] ........................................................................ 723 [Minors must be represented by curator ad litem] ....................... 723 [Action against executor not binding as res judicata on beneficiaries] ................................................................................ 724 [Prejudicial to beneficiaries] ......................................................... 724 [Usual response to non-joinder].................................................... 725

SMITH AND ANOTHER v ESTATE SMITH 1949 (1) SA 534 (A) .......... 727 Bequests taking effect on surviving spouse’s death. No vesting at



—50 —

date of testator’s death. 727 [Clause 10 of the will] .................................................................. 727 [Vesting of testamentary dispositions] ......................................... 728 [Vesting of ownership in face of usufructuary interest] ............... 728 [Dominium in deceased’s property] .............................................. 729 [Dominium in fiduciary] ............................................................... 729 [Deceased’s intention and language of will] ................................ 730


Bequest of rent-free tenancy to existing tenant. Bequest a continuance of tenure, rent free. 733

[No will can be analysed in vacuo]............................................... 734 [Novation v election (waiver)]...................................................... 734

KRIEL v KRIEL AND ANOTHER 1948 (3) SA 309 (A) ........................... 737 Conditional bequest price. Triggers marriage of legatee and vacation of premises by those with user rights. 737

[Clause 2(8) of the will] ................................................................ 737 [Conditional obligation as bequest price] ..................................... 737


Usufruct over farm in testamentary trust left to eldest son of each usufructuary. Eldest grandson of usufructuary who died without sons excluded. 741

[Operative part of will] ................................................................. 741 [Words & phrases: ‘children’] ...................................................... 741 [Words & phrases: ‘sons’ v ‘grandson’] ....................................... 742 [Words & phrases: ‘stock’] ........................................................... 742 [Words & phrases: ‘father’] .......................................................... 743 [Words & phrases: ‘their descendants’] ....................................... 744

Summaries


—51 —

Summaries


2019 79 Beneficiary exercised right under will to acquire properties at determined price. ‘Real source’ of the right is ‘disposition by the testator’, which was its fons et origo; consequently right was not pactum de contrahendo, and acquisition was ‘acquisition by succession’. .................................................. 79 Deceased with will properly executed at time of first marriage, presented with draft will prepared by deceased’s financial adviser. Section 2(3) of Wills Act not applied, since no intention that final document was to be will................. 85

2018 91 Nomination of beneficiary under risk-only policy containing beneficiary clause (stipulatio alteri) changed by deceased. Such a policy cannot be an asset in the estate of the policyholder and of joint estate from marriage in community of property, and not an insurance policy under s 15(2)(c) of Matrimonial Property Act. ............................................................................. 91 Deceased executor sold estate assets unlawfully before his death. Under the Beningfield exception, beneficiary of deceased estate may claim assets from the person in possession. ................................................................................ 97

2017 105 Permanent life partners with reciprocal duties of support without solemnization under the Civil Union Act; one of them died intestate. Survivor held to be entitled to inherit. ........................................................................ 105

2014 119 Will created fiduciary and first and second fideicommissaries; first fideicommissary predeceased fiduciary. Property held to go to second fideicommissary. .......................................................................................... 119

2013 125 Will provided for charitable testamentary trust, with alternative beneficiaries should the primary appointment prove impossible. Upon failure of primary appointment, alternative appointment held to apply. ................................... 125 Antenuptial contract compensated wife for benefits forgone under previous marriage with benefits ‘arising’ from deceased’s membership of provident fund. In context of ANC, relevant clause was meant to make financial provision for the wife upon the death of the deceased, and life policy as a benefit falling within ambit of the clause. .................................................... 129

2012 133 Testator bequeathed a usufruct without identifying the remainderman; omitted to attach a list of bequests to the will. Will interpreted and held to be valid. ..................................................................................................................... 133

2011 139 Testator’s second will did not revoke earlier will. Both wills read together, with later will revoking earlier one in instances of inconsistency. ............... 139

Summaries


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2010 141 Document bearing characteristics of will unsigned. Found to be a will, under the Wills Act. ............................................................................................... 141 Charitable testamentary trust included racially restrictive provision. Relevant clause deleted under the Trust Property Control Act. .................................. 145 Suicide note. Accepted as will under the Wills Act. .................................... 153 Crossed wills. Rectification accepted into law but not when testator lacked testamentary capacity. .................................................................................. 155 Farm fraudulently transferred and registered in the names of deceased’s children, who claimed she had either waived or abandoned (donated) her right to ownership. Neither claim proved, rectification of deeds approved. ......... 161

2009 171 Widows in polygynous Muslim marriages excluded by s 1(1) of the Intestate Succession Act. Deficiency rectified by a reading-in. .................................. 171

2007 183 Surviving partner in permanent same-sex partnership under reciprocal duties of support did not inherit upon intestacy of deceased partner. Statute held to be unconstitutional, and rectifying words read-in. ....................................... 183

2006 201 Whether a document constituted a will. Intention concurrent with its drafting that it be a will, as opposed to instructions to an attorney, not shown. ........ 201

2005 205 On the constitutional validity of s 23 of the Black Administration Act and of the principal of primogeniture under the customary law of succession. Orders made as to the interpretation of the relevant statutes. ................................... 205 Joint will of spouses married in community of property. Held not to constitute a massing. ..................................................................................................... 209

2004 215 Document in sealed envelope addressed to deceased’s attorney handed over for safekeeping, together with other sealed documents, to deceased’s friend some years before his death, seemingly in circumstances indicating that he was contemplating suicide. Document held to be a will under s 2(3) of Wills Act 7 of 1953. ............................................................................................... 215 Whether ‘spouse’ in the Intestate Succession Act and the Maintenance of Surviving Spouses Act includes persons married according to Muslim rites. Held that these acts are to be interpreted as including a party to a monogamous Muslim marriage as a spouse. ................................................ 219

2003 247 Bank instructed by client to draft will; never signed by client. Will declared invalid, as not having been drafted by the deceased. .................................... 247

2000 253 Deceased married under customary with illegitimate daughter died intestate. Daughter held not to enjoy any rights under laws intestacy. ........................ 253 Wife bequeathed usufruct over shares in a holding company—in which she personally held, outright, a significant interest—with investment in listed shares; advised to sell shares and lend proceeds to trust to buy interest-bearing securities. Action for damages found to be premature, since any loss ascertainable only upon her death. ............................................................... 261

1998 271 Bequest to beneficiary subject to bequest price payable in instalments, on

Summaries


—53 —

condition of immediate acceptance and forfeiture in the event of noncompliance with terms; beneficiary died, leaving property to spouse. Property found to vest, subject to resolutive condition, and to be transmissible. ............................................................................................... 271

1993 277 In one of its two pages, a will was merely initialled by the witnesses, rather than being signed. The will was held to be invalid under s 2(1)(a) of the Wills Act 7 of 1953................................................................................................ 277

1992 297 Under testamentary trust, testatrix’s friend awarded monthly annuity and other benefits, with trust property to go to designated charities upon her death. Bequest to charities found to be unconditional, and vested in them at death. ..................................................................................................................... 297 Inter-generational fideicommissum created in will in favour of testator’s three children, with devolution to the eldest child of each child and then of their successors. Found to exclude adopted children, despite statutory accommodation of adopted children generally. ........................................... 303 Liability of deceased to ex-wife under agreement incorporated in divorce order relevant to estate duty calculation. Liability found to be more than the tax authorities allowed but less than what was claimed as a deduction in the estate. ........................................................................................................... 313

1988 319 Under massed estate, survivor enjoyed life interest, with devolution to a trust with daughters as income beneficiaries, and capital to go their lawful children. ‘Children’ found to include grandchildren with predeceased parents. ......... 319 The testator bequeathed a farm to his son by way of fideicommissum, subject to the condition that, should he die without lawful descendants, the farm would go to his sisters or their lawful descendants, by substitution; son died, leaving children. Children found to be fideicommissary beneficiaries. ....... 329

1986 341 Before executing his will, the testator created two trusts, in his will appointing them (via their trustees) as beneficiaries of the residue of his estate. Bequest held to be valid. ............................................................................................ 341

1985 345 Surviving spouse adiated under joint will providing that, should the survivor remarry, a sum be either paid to the son or security furnished. Choice of providing security found to subsist only for so long as son was a minor. .... 345 Joint will bequeathed joint estate to survivor; fideicommissum over part in favour of testators’ son, including movables and livestock as found on a particular farm upon the survivor’s death; survivor had in her lifetime disposed of some of these movables. Son successfully obtained compensation for diminution in movables. ......................................................................... 353

1984 365 Bequest subject to forfeiture clause in the event of anticipation or encumbrance of interest or inheritance; beneficiary promised a portion of anticipated in heritance in consent paper. Action did not trigger forfeiture clause............................................................................................................ 365 Will created discretionary trust, empowering trustees to make distributions at their discretion among designated beneficiaries; termination clause included proviso purportedly affording them the power to create trusts at will. Bequest

Summaries


—54 —

found to be valid; the proviso to be invalid, although with no effect upon the validity of the testamentary trust. ................................................................. 369

1983 373 Bequest to survivor in joint will, with special bequests out of ‘the estate as then found’ upon the death of the survivor. The survivor was precluded from disposing of the property. ............................................................................. 373

1982 379 Usufruct in property enjoyed by testator’s wife, with conditional fideicommissum in favour of grandson, subject to a fideicommissary substitution, should grandson not dispose of property by transaction or by will; grandson died intestate, while married in community of property. Property fell into joint estate of late grandson and his wife. ........................ 379

1981 391 Grandson inherited property by way of fideicommissum, with limited power to nominate fideicommissarii by way of testamentary disposition; purported in his will so to dispose of the property, but subject to terms contrary to his testamentary power. No honest intention to exercise his power, and in fact had not so exercised it. ........................................................................................ 391 Alienation of property bequeathed by way of fideicommissum prohibited except to legitimate children. Sale and bequest by beneficiary to her son upheld. .......................................................................................................... 397

1979 407 The focus of a poorly drafted will was its clause 6, which failed to make it clear whether vesting in the beneficiaries depended upon their surviving to a later date, or what was to be done with surplus income. Vesting found to take place at second date, and surplus income accrued to the capital of the residue. ...................................................................................................................... 407

1978 431 Control of farming property left to Commission, with user rights of two types reserved for most needy of identified beneficiaries, otherwise to be let on the open market. None of applicants qualified for access to these user rights, and none of them were prejudiced by the letting of the property on the open market. .......................................................................................................... 431

1977 435 Commissioner of oaths failed to append his certificate to the will marked by testator. Will held to be invalid. ................................................................... 435

1976 441 Testator signed will with mark in presence of commissioner of oaths, who appended certificate required by s 2(1)(a)(v) of Act 7 of 1953. Certificate complied, even though commissioner did not use the ipsissima verba of the provision. ...................................................................................................... 441

1975 445 Bequest to eldest son, and from him to ‘the eldest heir male’ of such son. Interpreted as identifying the eldest son’s heirs, from eldest son to eldest son. ...................................................................................................................... 445 Bequest to testators’ daughter; to go to her lawful issue; failing them, to other children or their lawful issue. Daughter’s adopted child excluded from qualification, despite s 74(2) of Act 33 of 1960. .......................................... 451

1974 461 Will gave beneficiary option to acquire immovable property at fixed price.

Summaries


—55 —

Held to be acquisition by testamentary succession for transfer duty purposes. ..................................................................................................................... 461

1971 465 Bequest to brother or lawful issue, if any; died without issue. Devolution held to be to other beneficiaries. .......................................................................... 465

1968 473 Bequest of farms to children; subsequent heirs required to bear names of testators. Not invalid for uncertainty; constituted a fideicommissum. ......... 473

1966 481 Daughter as usufructuary with power to appoint successors in full title, exercising power in her will, but predeceasing the testator. Her testamentary disposition invalid. ....................................................................................... 481 Daughter left portion of farm, with improvements. Intended portion identified as homestead on farm at the time of execution of the will; no interference with costs order de bonis propriis against executor. ............................................. 489

1965 495 Will created perpetual fideicommissum in favour of eldest son in each generation; first eldest son died without issue. Substitution to be applied in each generation, whenever an eldest son leaves no male descendants. ........ 495

1963 501 Claim by widow for maintenance from estate of late husband. Condonation for late noting of appeal refused, prospects of success being too slender. ... 501 Mutual will of husband and wife written out by husband but not confirmed by wife. Surviving husband prohibited from benefiting under will. ................. 507 Guardians represented minors in court, despite possible conflict of interest. Decision set aside and case remitted to trial court, for appointment of `. .... 511

1961 513 Farm bequeathed to each of two sons, each subject to a right of pre-emption in favour of his brother. Could not prevent sale by public auction upon insolvency of one of the brothers. ................................................................ 513

1960 515 Widow a vested income beneficiary of estate property, bequeathed to a trust, claimed as income a dividend paid to extinguish the deceased’s indebtedness to the declaring dividend. Dividend held not to be income of the estate. ..... 515

1958 521 Bequest to married daughter subject to a usufruct to her surviving spouse; subsequently divorced. On her death, usufruct to ex-husband upheld. ........ 521

1957 525 Joint will dependent upon survivor’s making another will; survivor dies seven moths later, without making a will. Joint will inapplicable; survivor died intestate. ....................................................................................................... 525 Bequest to grandchildren, subject to a usufruct in favour of the testator’s child, who, being beyond child-bearing age, attempted to vest the property in her children, subject to a usufruct in her favour. Will created a fideicommissum in favour of grandchildren and great-grandchildren; grandchildren could receive transfer, subject to the fideicommissum. ........ 529 Validity of will upheld despite pressure brought to bear upon testator. ....... 535 Under will, marriage outside of the Jewish faith by children entailed forfeiture. Under construction of will and codicil, ‘children’ found not to include ‘grandchildren’. ............................................................................... 543

Summaries


—56 —

Bequest to daughters subject to fideicommissum in favour of testator’s descendants, subject to reversion to all children should a daughter die without issue. Held to constitute fiduciary substitution, in favour of testator’s surviving son. ............................................................................................... 549 Bequest to son subject to a prohibition against alienation outside of a class. Class too poorly identified for a fideicommissum to have been created. ..... 553

1956 559 Surviving spouse left usufruct over residue of estate, with power of appointment, subject to gift over. Dominium found not to vest in wife, who enjoyed a usufructuary interest, ceasing on her death. ................................. 559 Estate bequeathed to wife, to be administered by a trustee, with all income to go to the wife, and ultimate devolution to the children, subject to a set-aside for one of the children, who predeceased his mother. No vesting in trustee; wife enjoyed fiduciary interest; owned but could not access the set-aside, which did not vest in deceased son. ............................................................. 563 Endorsement of will required by statute to maintain its validity upon marriage of testator. Will executed before marriage but clearly contemplating marriage found to comply. .......................................................................................... 569

1955 571 First-dying spouse provided for children, subject to a time clause, as well as for a massing of the joint estate, with the surviving spouse adiating. The massing applied to the whole estate. ............................................................ 571 A will and a codicil conferred ownership upon the testator’s children, with the income to be paid to them during their lifetimes, subject to disposition by them by will or, failing a will, to their next of kin. Their interests found to be fideicommissa, subject to death duties under s 3(4)(b) of the Death Duties Act. ............................................................................................................... 585 The testator’s widow enjoyed a usufructuary interest in a property, with the estate being held in trust, for the benefit of the sons of the marriage, who predeceased their mother. Despite the trust, ownership of the estate property vested in the sons, and, failing them, their children. .................................... 605 Will vested property in trustees. Deceased beneficiary found to have no vested beneficial interest in that property. .................................................... 611

1954 631 Farm bequeathed to son, with benefits under mining contract to be divided equally among all the children, subject to usufruct in favour of surviving spouse, who renounced it, in favour of the son. Rights under contract did not vest in son, who could not cancel it; in any event, the court was bound to have regard to the interests of the other beneficiaries. .......................................... 631 Farm left to testator’s son to go to his sisters should he die without children. His inheritance constituted a fideicommissum, which could not be expunged. ...................................................................................................................... 637 Will appointed children as sole heirs, subject to a time-clog on some of the assets. Children found to enjoy vested interests ab initio. ............................ 641

1953 647 Fideicommissum subject to marriage and lawful issue. Lapsed not upon marriage but death, leaving issue. ................................................................ 647 Shares to be offered to beneficiaries at face value. Acceptance of option a patrimonial event. ......................................................................................... 651 Family agreement purported to dispose of an estate, contrary to the provisions

Summaries


—57 —

of the will. Devolution of estate unaffected. ................................................ 659 Balance of estate left to discretion of executors. Interpretation of will showed that identified beneficiary not entitled to the residue, which was therefore required to be dealt with under the rules of intestacy. .................................. 667

1951 675 Testator appointed daughter and her children, born and still to be born, as sole heirs, with liquidation and distribution to be accomplished within three month. Daughter held to be sole heiress....................................................... 675 Codicil amended revoked will. Onus not discharged of proving revival of revoked will. ................................................................................................ 681 Usufruct in favour of surviving spouse, with reversion should legatee of corpus die without issue. Constituted fideicommissum in favour of legatee. ..................................................................................................................... 695

1950 699 Will with religion-based, conditional disqualification. Not void for uncertainty, and not a nude prohibition. ....................................................... 699

1949 717 Action to set aside will. Since beneficiaries not joined, no order made. ...... 717 Bequests taking effect on surviving spouse’s death. No vesting at date of testator’s death. ............................................................................................ 727

1948 733 Bequest of rent-free tenancy to existing tenant. Bequest a continuance of tenure, rent free. ........................................................................................... 733 Conditional bequest price. Triggers marriage of legatee and vacation of premises by those with user rights. .............................................................. 737

1947 741 Usufruct over farm in testamentary trust left to eldest son of each usufructuary. Eldest grandson of usufructuary who died without sons excluded. ...................................................................................................... 741


—58 —

Cases, themes


—59 —

Cases, themes



[Nothing ‘like a will for fomenting family dissension’] 79 [Exercise of the option] 80 [The litigation] 81 [The golden rule of interpreting a will] 83 [Personal, not real rights] 83 [Right arose from testamentary disposition, not pactum de contrahendo] 84


[The facts] 85 [The court a quo] 87 [Section2(3) of the Wills Act] 87 [Outcome] 89


[Is policy asset, nomination an alienation?] 91 [The facts—policy was risk-only] 91 [The wife’s argument] 92 [Was policy an asset? (stipulatio alteri)] 92 [Was nomination an alienation under Matrimonial Property Act?] 93 [Ndaba distinguished] 96 [Nomination under policy not transfer of asset in estate] 96

STANDARD BANK v JULY (525/2017) [2018] ZASCA 85 ....................... 97 [Did respondents, not being executors, have locus standi?] 97 [Words and phrases: the Beningfield exception] 97 [The facts] 97 [Application of the Beningfield exception] 100 [Need for executor] 103 [Contingent beneficiaries have locus standi] 103


[Aspects determinative of status as intestate successor] 105 [Gory as an interim measure] 105 [Gory and the Civil Union Act] 107 [Intestate Succession Act] 110 [Section 1(1) as amended by Gory] 110 [Interpretative approach] 110 [Has Civil Union Act amended the Intestate Succession Act?] 111

Cases, themes


—60 —

[Volks case] 113 [Conclusion] 116 [Conclusion] 117


[Difference between two wills] 119 [Both wills provided for property to pass to children and from them to grandchildren] 119 [High Court’s approach] 120 [Immovable Property (Removal or Modification of Restrictions) Act] 121 [Words and phrases: fideicommissum multiplex] 121 [The per stirpes presumption] 122 [The presumption against disinherison] 122 [Intention of testators] 123


[Application of Emma Smith] 125 [Freedom of testation] 126 [Testator’s wishes] 127 [Words and phrases: ‘impossible’] 127

JAKINS V BAXTER (178/13) [2013] ZASCA 190 .................................... 129 [Disputed clause] 129 [Did insurance proceeds accrue to widow or estate?] 129 [Disputed clause in ANC] 129 [Words and phrases: ‘arising’] 131 [Outcome] 131


[Untrained advisers—a never-ending source of amazement] 133 [Clauses 2 and 3 of the will] 133 [Intended to be a will?] 134 [Lack of specific bequests: rendered will void?] 135 [Usufruct over home] 135 [Will created fideicommissum] 136 [Interpreting a will] 137 [Conclusions] 138


[More than one will] 139 [Golden rule of interpretation of wills] 140 [Earlier will contained important provisions] 140


[Section 2(1) of the Wills Act] 141 [Testing the document against the jurisdictional requirements of s 2(3)] 143

Cases, themes


—61 —


[Section 13 of the Trust Property Control Act] 145 [History of administration of fund] 145 [Authority to amend trust deed] 147 [Equality] 147 [Racially discriminatory testamentary dispositions] 148 [Order] 151

SMITH v PARSONS NO AND OTHERS 2010 (4) SA 378 (SCA) ............ 153 [Issues] 153 [Intention of deceased] 153 [Not donatio mortis causa] 154 [Intended to be will] 154

HENRIQUES v GILES NO 2010 (6) SA 51 (SCA) .................................... 155 [Rectification of wills] 155 [Procedural issues] 158 [Testamentary capacity] 159

MEINTJES V COETZER & OTHERS (089/09) [2010] ZASCA 32 .......... 161 [Waiver or abandonment of property] 161 [Background facts] 161 [Defendant’s position and counterclaim] 162 [Plaintiff’s claim (rei vindicatio), abstract theory of ownership] 162 [How real rights are acquired, rectification] 163 [Will takes effect upon death] 164 [Abandonment alleged] 164 [Prescription argument abandoned] 165 [Rei vindicatio claim ignored] 165 [Knysna Hotel distinguished] 165 [Contrary to public policy and inimical to constitutional values] 165 [Waiver or abandonment not proved (donation)] 166 [Conclusion] 166 [Abstract theory of transfer] 167 [Waiver and requirements for and consequences of waiver (donation)] 168 [Conclusion] 170

2009 171 HASSAM v JACOBS NO AND OTHERS 2009 (5) SA 572 (CC) .............. 171

[Issues] 171 [Equality jurisprudence] 171 [Approach to legislative interpretation] 173 [Is Constitution violated?] 174 [Words and phrases: ‘spouse’] 178 [Section 1(1) of the Intestate Succession Act] 178 [Remedy] 180


[Unconstitutionality of s 1(1) of the Intestate Succession Act] 183 [Remedy] 183 [Reading-in] 184

Cases, themes


—62 —

[Retrospectivity] 187 [Appeals to the Constitutional Court] 192 [Order] 198

2006 201 DE RESZKE v MARAS AND OTHERS 2006 (2) SA 277 (SCA) .............. 201

[When intention for purposes of s 2(3) exist] 201 [Was document intended to be will?] 201 [Requisite intention lacking] 202


[Effect of the judgment] 205 RHODE v STUBBS 2005 (5) SA 104 (SCA) .............................................. 209

[Nature and requirements and effects of massing] 209 [Survivor enjoyed usufruct over property] 209 [Adiation does not of itself achieve a massing] 210 [Massing of itself has no consequences] 210 [Joint wills often ambiguous] 210 [Presumption against massing in marriages of community] 210 [Terms of the joint will] 211 [Has to be read as two wills] 213


[Deceased’s intention] 215 [Document was will] 218

DANIELS v CAMPBELL NO AND OTHERS 2004 (5) SA 331 (CC) ........ 219 [Words and phrases: ‘spouse’] 219 [Legislative interpretation] 226 [Case law and ‘spouse’] 231 [Recognition of Muslim marriages] 234 [Principles of interpretation] 237 [Words and phrases: ‘spouse’] 238 [The doctrine of stare decicis] 240 [This case distinguishable?] 241 [Equality] 243 [Appropriate relief] 245


[The facts] 247 [Words and phrases: ‘opstel’ v ‘laat opstel’] 247 [Sections 2A and 2(3) of the Wills Act 7 of 1953] 248 [No escaping literal meaning of s 2(3)] 250


[Regulation 2(e) of GN R 200 GG 10601 of 6 February 1987] 253 [Regulation not ultra vires] 254

Cases, themes


—63 —

[Regulation not repealed] 255 [Development of rule better left to legislature] 258 [Regulation not contrary to public policy] 259 [Zondi v President of the Republic of South Africa] 259 [A caveat] 259

JOWELL v BRAMWELL-JONES AND OTHERS 2000 (3) SA 274 (SCA) ..................................................................................................................... 261

[Clause 3 of the will] 261 [The scheme] 261 [Listed shares were not trust property and so could be alienated] 263 [Trustee vested with shares in holding company still required to exercise voting rights as fiduciary] 264 [Conflict of interest] 264 [Deregistration of holding company breach of trust] 264 [Establishing liability] 265 [Damages calculated with reference to future date] 266 [Delictual claims for prospective loss] 266 [Loss, if any, will only be known on future date] 269


[Clauses 2 and 3 of the will] 271 [Did beneficiary acquire vested right?] 272 [Vesting upon death] 272 [Suspensive or resolutive condition?] 272 [Testator’s intention v general scheme of will and circumstances] 273 [Dies venit cannot precede dies cedit] 273 [Presumptions come into play] 274 [Suspensive v resolutive conditions] 274 [Rights transmissible?] 275

1993 277 HARPUR NO v GOVINDAMALL AND ANOTHER 1993 (4) SA 751 (A) ..................................................................................................................... 277

[Section 2(1)(a) of the Wills Act, 1953] 277 [Is initialling by a witness is a signing under s 2(1)(a)(iii) and (iv)?] 278 [Words and phrases: ‘signature’] 278 [Words and phrases: ‘sign’, ‘signature’, ‘mark’] 279 [Why signatures of witnesses?] 283 [Words and phrases: ‘mark’] 283 [Signatures and SA case law] 285 [Initials are not marks] 288 [Writings that are not marks or signatures in ordinary sense are not signatures] 288 [Intention of testator defeated] 288 [Cases supporting or apposing initials as signatures] 289 [Pre-Union legislation and decisions] 290 [The Melville/Dempers/court a quo argument] 292 [Words and phrases: ‘sign’] 294

1992 297 HILDA HOLT WILL TRUST v COMMISSIONER FOR INLAND

Cases, themes


—64 —

REVENUE 1992 (4) SA 661 (A) ................................................................. 297 [Surplus income vested in person in whom trust capital vested] 297 [Was bequest to charities contingent or certain?] 297 [Nature of interest of beneficiary in continuance] 297 [Not a vested interest, therefore not a fiduciary interest] 298 [Interest of beneficiaries on termination] 299 [Bequest was certain, although not in amount] 300 [When fideicommissary is charity, survivorship is not an issue] 300

COHEN NO v ROETZ NO AND OTHERS 1992 (1) SA 629 (A) .............. 303 [Conditions (iii) and (iv) of the will] 303 [Words and phrases: ‘eldest child’] 303 [Taking effect of will] 303 [Section 71(2) of the Children’s Act 31 of 1937] 304 [Section 20(2) of the Child Care Act 74 of 1983] 304 [Golden rule of interpretation] 304 [Strong indications pointing to confinement to blood relations] 305 [Conditions (iii) and (iv) compliment each other] 306 [Words and phrases: ‘eldest child’] 306 [Effect of 1937 Act] 307 [Effect of 1983 Act] 307 [Application to will of new legislation] 309 [Effect of 1983 Act] 309 [Boswell en Andere v Van Tonder] 309 [Legal fiction gives way to contrary intention expressed in will] 312


[Obligation to meet ex-wife’s medical costs a liability of deceased’s estate] 313 [Adjustment for increased future medical costs] 313 [Obligation to pay monthly maintenance] 314 [Inflationary adjustment] 314 [User right over fixed property] 315 [Establishing deceased’s debt for estate duty purposes] 316 [Estate duty capitalized values inapplicable] 316 [Treatment of annuities] 316 [Summary] 317


[Clause 7 and provisos 3 and 6 of the will] 319 [Words and phrases: ‘lawful children’] 320 [The Galliers and Others v Rycrofti rule] 323 [Words and phrases: ‘children’ means descendants in the first degree] 323 [Modification of the rule in Galliers v Rycroft] 324 [The rule in Galliers v Rycroft not obiter] 324 [Apply Galliers v Rycroft unless there are indicia to the contrary] 325 [The indicia] 325 [Words and phrases: ‘issue’] 325 [Words and phrases: ‘remoter descendants’] 326 [Equal treatment] 327

Cases, themes


—65 —

[Galliers v Rycroft presumption rebutted] 327 DU PLESSIS NO v STRAUSS 1988 (2) SA 105 (A) .................................. 329

[The facts] 329 [The Cato case] 331 [The common law] 332 [Tacit fideicommissa] 332 [Conditional fideicommissum plus sine liberis-clause suggests tacit appointment of fideicommissa] 333 [Cato case] 335 [Common law—tacit fideicommissum] 338 [It would be preferable to rely upon intention of testator] 338 [Reason for si sine liberis decesserit conditions] 339 [Why not expressly, rather than by implication?] 339 [Accepting the law of Holland] 340 [But conjecturae in the will would have been sufficient] 340


[Inter vivos trusts appointed as beneficiaries under will] 341 [Arguments as to invalidity] 342 [Incorporation by reference] 342 [Bequest was not to beneficiaries of the trusts] 343

1985 345 HEYMANS v VAN TONDER 1985 (3) SA 864 (A) .................................. 345

[Clauses 3, 4 and 5 of the will] 345 [Purported choice requires interpolation] 346 [Dies cedit and dies venit] 346 [Alternative interpolation] 347 [Dies cedit and dies venit] 347 [Intention to favour survivor over son] 349 [Spared the inconvenience of paying son] 350 [Repetition of son’s age] 351 [Word order] 351 [Consequences of payment while son a minor] 351 [Type of security envisaged] 351

CRONJE v KRUGER EN ’N ANDER NNO 1985 (2) SA 812 (A) ............. 353 [Clause 4 of the will] 353 [Ordinary fideicommissum or fideicommissum residui?] 354 [Words and phrases: ‘wat mag oorbly’, ‘die dan te vinde boedel’] 354 [Wording in casu differs but has the same effect] 356 [Support from the terms of the will] 356 [Rights of disposal under a fideicommissum] 359 [Extraneous issues] 359 [Was survivor entitled to dispose of movables?] 359 [Scheme of the will] 360 [How son was meant to benefit] 360 [Two deductions show that survivor lacked right of disposal] 360 [Supported by wording of the will] 361 [Empty shell of a farm was not contemplated] 363 [Viva voce evidence might have been decisive] 363 [In any event, finding justifiable in proceedings by way of exception]

Cases, themes


—66 —

363 [The deciding vote] 364 [Case should never have been decided on exception] 364


[The forfeiture clause of the will] 365 [The consent paper—para 12] 365 [Not a dealing in advance with inheritance] 365 [No benefit from patrimony] 366 [Inheritance not jeopardized] 366 [Inheritance not encumbered] 367 [Words and phrases: ‘encumbrance’] 367 [Personal right to demand performance] 367 [Construction of forfeiture clauses] 367


[Clauses 4(b) and (d) of the will] 369 [A trust is not a fideicommissum] 370 [Powers of appointment granted to trustees] 370 [Proviso to clause 4(d) invalid] 371 [Invalid delegation of will-making power to administrators] 371

1983 373 DIEDERICHS v GOUWS EN ’n ANDER 1983 (3) SA 28 (A) ................... 373

[Principal clause of the will] 373 [Fideicommissum created] 373 [What were powers of fiduciaria?] 374 [Words and phrases: ‘the estate as then found’] 374 [Unlikely that survivor enjoyed power of disposal] 376 [Words and phrases: ‘the estate as then found’] 376 [Conditional power of disposal by survivor?] 376 [Indicia in the will] 377 [Survivor lacked power of disposal] 377


[Clauses 2 and 5 of the will] 379 [Did clause 5 apply only if grandson predeceased grandmother?] 379 [Clause 2 created a conditional fideicommissum] 379 [Clause 5’s two conditions are disjunctive] 380 [Conditional substitution] 381 [Object to avoid intestacy] 381 [Direct substitution ruled out] 381 [Dufill’s case] 382 [Words and phrases: ‘absolutely’] 382 [Words and phrases: ‘his interest’] 383 [Compendious substitution (direct and fideicommissary)] 383 [Clause 5 comprehends a fideicommissary substitution] 384 [Effect of marriage in community; not a disposal] 384 [Clause 5 not aimed at death of grandson before that of grandmother] 386 [Grandson’s right sunder clauses 2 and 5] 387

Cases, themes


—67 —

[Was grandson’s bequest burdened with a fideicommissum?] 388 [Fideicommissum residui] 389 [No fideicommissum, half to go to brother] 390


[Clause 1 of the will] 391 [Bequest to grandchild of fideicommissum, with limited testamentary power of substitution] 392 [Did grandchild exercise his testamentary power?] 392 [Estate Orpen case] 392 [Surrounding circumstances] 393 [Knowledge of restrictions] 393 [Addition of extraneous terms] 393 [Clauses 3 and 4 invalid but illuminating of intention] 393 [Did grandson mean to exercise his power?] 395 [Improper addition of terms designed to thwart grandparents’ will] 395 [Power of court] 395

SMIT v DU TOIT EN ANDERE 1981 (3) SA 1249 (A) ............................. 397 [Not conventional, positive fideicommissum] 397 [Oliver’s case] 398 [Amedment allowed, but to no effect] 400 [Fideicommissum with specific prohibition against disposal, save to identified persons] 400 [Application to present matter] 405


[Clause 6 of the will] 407 [In the alternative, a fideicommissum?] 407 [Sive’s Estate] 408 [Schaumberg v Stark] 408 [Greenberg’s case] 408 [Surplus income not to be paid in the meantime] 410 [Maxim expressio unius est exclusio alterius applicable] 410 [Surplus income became capital of the residue of the estate] 412 [Was vesting on first or second date?] 412 [Vesting a morte testatoris?] 412 [Deficiencies of will] 415 [Deficiencies of will go to its construction] 418 [Vesting on first or second date?] 418 [Surplus income] 421 [‘Advance’ was loan] 422 [Capital v income] 423 [Other indications in will] 425 [Vesting took place on the second date: survival to date required] 426 [No distribution of surplus income] 426 [Words and phrases: ‘arm-chair’ evidence] 426 [Other evidence of surrounding circumstances] 428 [Addendum] 429

Cases, themes


—68 —

[Conditional fideicommissum?] 429 [Surplus income accrued to capital] 430


[Applicants enjoyed no rights that might be prejudiced] 431 [Terms of will] 431 [No compulsory letting to beneficiaries demanded] 433 [None of beneficiaries needy] 433 [On prejudice to beneficiaries] 433 [Beneficiaries enjoyed no rights] 433 [But they did enjoy locus standi?] 434


[Content of certificate v its wording] 435 [Person who made the will made the mark] 435 [Extraordinary circumstances not catered for] 436 [Will speaks from the date of death] 436 [Office of certifier must be supplied] 437 [Post mortem recitifation] 437 [Contemporaneous identification required] 439


[Prescribed formalities for execution of documents] 441 [Primary object of will-signing formalities] 441 [Commissioner did not follow wording of act] 442 [Must ipsissima verba of provision be used?] 442 [Object of provisions governing the use of a mark] 443


[Numbered extracts from will] 445 [‘The eldest heir male of’] 446 [Construction of wills] 446 [Lateral devolution?] 446 [Eldest son to eldest son?] 447 [Relevant circumstances at time of making will] 447 [Plain meaning of will] 447 [Search for indications] 448 [Successive lateral devolution unheard of] 448

BOSWELL EN ANDERE v VAN TONDER 1975 (3) SA 29 (A) .............. 451 [Terms of will] 451 [Under ordinary rules of interpretation, ‘issue’ confined to bloodline] 452 [Words and phrases: ‘child’] 452 [Section 74(2) of Children’s Act 33 of 1960] 452 [To what extent statutory fiction prevails] 453 [Not a rule of interpretation] 453 [Will does not engage the Act] 457

Cases, themes


—69 —

[Even if adopted child was of the bloodline, he would not have qualified under condition (c) of will] 459


[Words and phrases: ‘acquired’ (transfer duty)] 461 1971 465

LELLO AND OTHERS v DALES NO 1971 (2) SA 330 (A) ...................... 465 [Extract from will] 465 [Words and phrases: ‘verbis tantum’] 465 [Verbis tantum v jus accrescendi] 465 [Probable intention of testator] 466 [Words and phrases: ‘conjectura’] 467 [The will] 468 [The probabilities] 468 [Division not intended to survive its purpose] 470 [Anderson’s case] 470


[Invalid for uncertainty?] 473 [Grusd v Grusd] 473 [Arenson v Estate Hart] 473 [Intention of testators] 475 [If naming term fails] 477 [Term reasonable; fideicommisum created] 479


[Extract from clause 14 of will] 481 [Clause 4 of wife’s will] 481 [Power of appointment/power of disposal] 482 [Power of appointment competent] 483 [Power attaches to bequest] 483 [Testator’s will speaks from date of death] 484 [Golden rule of interpretation] 484 [No delegation of testamentary power] 485 [Power of appointment is exception to rule] 486

CONRADIE EN ANDERE v SMIT 1966 (3) SA 368 (A) .......................... 489 [Could one of two executors act alone?] 489 [Jurisdiction of court] 489 [How to divide farm] 490 [Whether improvements or improvements and land] 490 [The envisaged improvements] 490 [Invalid for vagueness?] 491 [Election intended?] 491 [Words and phrases: ‘residue’] 491 [Equality not required] 492 [Value not an issue] 492 [No reason to interfere with decision of trial court] 492 [Costs order de bonis propriis] 492

Cases, themes


—70 —


[How a will is to be interpreted] 495 [Perpetual fideicommissum] 495 [Death of eldest son without male descendants not envisaged] 495 [Will ambiguous?] 496 [Substitution down through the generations] 497 [Previous decision] 497 [Moolman’s case] 498


[Prospects of success] 501 [Law of Holland] 501 [Roman-Dutch law] 504 [Abrogation by disuse] 504 [Extension by judicial authority declined] 505 [Prospects of success slender] 506

VAN RENSBURG v VAN RENSBURG EN ANDERE 1963 (1) SA 505 (A) ...................................................................................................................... 507

[Opportunity for fraud] 507 [Marital regime not significant] 508 [Not an extension of the rule] 508 [Rule applies to married parties] 509 [No confirmation by late wife] 510

WOLMAN AND OTHERS v WOLMAN 1963 (2) SA 452 (A) ................. 511 [Minors with guardians and curator-ad-litem] 511 [Case remitted to trial court] 512


[Clause 24 of will] 513 [Restraint, binding legatee only] 513 [Right of first refusal upon voluntary sale] 514 [Trustee selling no more than inheritance] 514


[When income is not income] 515 [No for benefit of estate] 516 [Duty to discharge debts] 516 [Duties of fiduciary] 516 [Purpose of dividend] 518 [Other issues] 520


[Husband clearly identified] 521 [No ground to add qualifying words] 521 [Did wording reflect causa finaliz of testators?] 523


[Clause 3 of the will] 525

Cases, themes


—71 —

[Words and phrases: ‘versuim’] 525 [Failure to make a will over whole period of survivorship?] 525 [Simultaneous or successive deaths] 526

EX PARTE BURGER EN ANDERE 1957 (3) SA 644 (A) ........................ 529 [Words and phrases: ‘grandchildren’] 529 [Voet on children] 529 [1. Cronje’s case] 529 [2. Botha’s case] 530 [3. van Zyl’s case] 532 [4. Wheeler’s case] 533 [Bequest postponed later than testator’s death] 533 [Unborn children] 534 [Fideicommissum created for grandchildren and great-grandchildren] 534

SPIES NO v SMITH EN ANDERE 1957 (1) SA 539 (A) ........................... 535 [Pressure as ground of invalidity, and, if so, degree required] 535 [Freedom of testation and interference] 535 [No longer a genuine will] 537 [Degree of pressure or urging] 537 [Lack of evidence] 538 [The Placaat of Keiser Karel of 4th October 1540] 541

O’DWYER v ESTATE MARKS AND OTHERS 1957 (1) SA 287 (A) ..... 543 [Words and phrases: ‘children’] 543 [Fiduciary benefit] 543 [Previous will] 544 [Presumed knowledge] 545 [Words and phrases: ‘children’] 546 [Revoked provisions] 546 [Sentiment v actual language] 547

GREEFF v ESTATE GREEFF 1957 (2) SA 269 (A) .................................. 549 [Extract from will] 549 [Direct v fideicommissary substitution] 549 [Fideicommissary substitution] 550 [Words and phrases: ‘all our children’] 550 [Gift in favour of a class] 550 [Jus accrescendi] 550 [Verbis tantum] 550 [Those predeceasing the deceased enjoyed no rights] 552

PHIPSON AND OTHERS v JARDINE AND OTHERS 1957 (3) SA 268 (A) ..................................................................................................................... 553

[Extract from will] 553 [Prohibition against alienation] 554 [Those meant to be favoured by fideicommissum must be identified with reasonable certainty] 555 [Secondary fideicommissum] 555


[Power of appointment exercisable only by way of fideicommissum?] 559

Cases, themes


—72 —

[Westminster Bank case] 559 [Not a fiduciary interest but a usufruct] 560

SCHAUMBERG v STARK NO 1956 (4) SA 462 (A) ................................. 563 [Extract from will] 563 [Did deceased son acquire vested interest?] 564 [Smith’s case] 564 [No vesting in trustees] 564 [Sive’s Estate case] 564 [Widow’s interest fiduciary, not usufructuary] 565 [Dominant clause] 565 [Strydom case] 566 [Usufructuary or fiduciary? In cases of doubt…] 567 [Jus accrescendi and verbis tantum] 568 [Deceased son’s share] 568


[Endorsement can be before marriage] 569 [Words and phrases: ‘endorse’] 569


[Clauses 1 to 4 of the will] 571 [Mother’s estate vested in children on her death, with time clause]572 [Massing of joint estate] 572 [Surviving spouse a fiduciary; children fideicommissaries?] 572 [Under massing, children acquired vested rights?] 573 [A familiar model will] 573 [Decided cases] 576 [Conditional massing] 576 [Massing continued after distributions to children] 577 [Master wrongly allowed surviving spouse to take over joint estate] 578 [Not conditional massing] 579 [Children obtained a vested right in mother’s estate] 579 [Canon of construction of a will] 580 [What to call beneficiaries] 580 [Joint will is subject to the conditio juris] 581 [Speculation needless] 581 [Respondents were ultimate beneficiaries] 583


[Clause 9 of the will] 585 [Codicil] 585 [Usufructuary or fiduciary interest?] 585 [‘Other like interest’] 585 [Administration of residue divorced from its ownership] 586 [Gift over if no testamentary disposition] 587 [Nudum praeceptum] 587 [Westminster Bank case] 589 [Fideicommissum followed by general power of appointment] 589

Cases, themes


—73 —

[Applying Westminster Bank case] 591 [Fiduciary interest nonconvertible] 592 [The several possibilities] 592 [Words and phrases: ‘power of appointment’ v fideicommissum] 593 [Words and phrases: ‘fiduciary interest’] 596 [Reading a codicil] 596 [Effect of codicil] 597 [Usufructuary interest did not become a fiduciary interest] 598 [Construing testamentary documents] 598 [Immediate vesting, enjoyment postponed] 600 [Effect of death] 600 [Legal solecism] 600 [Powers of appointment] 601 [Piae causae] 601 [No fiduciary interest passing] 601 [Words and phrases: trustees as ‘fiduciaries’] 602 [Vesting in the deceased] 603 [Death Duties Act] 604


[Canons of construction] 605 [Smith and Another v Estate Smith] 605 [What vests in beneficiaries upon testator’s death] 605 [Widow was usufructuary] 607 [Property vested in sons] 607 [Canons of construction] 608 [With two successive interests, the second vests] 609 [A trust is not a fideicommissum] 610


[Clause 45 of will] 611 [No claim of deceased against accumulated income] 612 [Did deceased enjoy fiduciary interest?] 613 [Deceased acquired vested right subject to a fideicommissum] 616 [No bequest to trustees] 616 [Even if trustees are fiduciaries of the bare dominium] 618 [Children’s fiduciary interests—death duties] 619 [Accrued succession—succession duty] 621 [Applying the statute] 622 [No succession] 623 [No vested beneficial interest] 624 [Effect of the will] 626 [Fideicommissum purum or conditional] 627 [Conditional fideicommissum] 628 [Estate vested in trustees] 629 [Words and phrases: two kinds of ‘fiduciary’] 629


[Clauses 3 to 5 of the will] 631

Cases, themes


—74 —

[Forfeiture clauses in leases] 631 [Landowner not only person interested in royalties] 632 [Interpretation of will: circumstances] 633 [Rights of other beneficiaries] 635 [Vesting of rights under contract] 635

EX PARTE OPPERMAN 1954 (1) SA 358 (A) .......................................... 637 [Extract from will] 637 [Circumstances existing at date of will] 637 [Fideicommissum imposed] 637 [Fideicommissum imposed] 638

EX PARTE MELLE AND OTHERS 1954 (2) SA 329 (A) ......................... 641 [Fourth, seventh and eighth clauses of will] 641 [Principles of interpretation of wills] 642 [Dominant clause] 642 [Reconcile conflicting clauses] 642 [Dominant clause] 642 [Vested right, subject to time clause] 643 [Position of minors] 644 [Applying the dominant clause] 645


[When fideicommissum lapsed] 647 [Disposal of burdened property] 648 [Advantage of fideicommissaries] 648

GLASS AND OTHERS v KER NO AND OTHERS 1953 (1) SA 550 (A) . 651 [Extract from will] 651 [Bequest price v option] 651 [Treatment of options to purchase] 651 [Acceptance of offer created contract] 654 [Condition conferred a right] 654 [Intention of testator determined when right became exigible] 655 [Form of action immaterial] 656 [Option to purchase] 657

BYDAWELL v CHAPMAN NO AND OTHERS 1953 (3) SA 514 (A) ..... 659 [Extract from will] 659 [Family agreement] 660

HARTER v EPSTEIN 1953 (1) SA 287 (A) ................................................ 667 [Golden rule of interpretation] 667 [Application of rule] 667 [Breach of testamentary power] 668 [Words and phrases: ‘only’] 669 [Words and phrases: ‘in cash or shares as she wishes’] 670 [Interpretation of wills] 671 [Punctuation] 671 [Words and phrases: ‘in cash or shares as she wishes’] 672


[Clause 1 and 2] 675 [Simultaneous v successive heirs] 675 [Words and phrases: ‘and still to be born’] 677

Cases, themes


—75 —

[Vulgar substitution intended] 677 [Children of legatee take only if legatee fails to take] 677 [Rapid liquidation and distribution called for] 679 [Words and phrases: ‘divided amongst my heirs’] 679

MOSES v ABINADER 1951 (4) SA 537 (A) .............................................. 681 [Doctrine of revival] 681 [Doctrine of incorporation] 681 [Doctrine of revival] 682 [Doctrine of revival: requirements] 683 [Applied to the facts] 684 [Onus not discharged] 685 [No incorporation in this case] 686 [Partial revival] 687 [Re Estate Marks] 687 [English principle of revival of revoked wills] 688

VAN ZYL AND OTHERS v VAN ZYL AND OTHERS 1951 (3) SA 288 (A) ..................................................................................................................... 695

[Extract from clause X of the will] 695 [Cardinal rule of construction of will] 695 [Words and phrases: ‘in lewe synde’] 696 [Fideicommissum created] 697


[Void for uncertainty] 699 [Construction of disqualifying or disentitling provision] 699 [Against public policy] 701 [Nude prohibition] 702 [Void for uncertainty] 704 [Suspensive and resolutive conditions] 704 [Clause afflicted by incurable uncertainty and void] 705 [Nude prohibition] 706 [No vesting ex testamento] 707 [Logically or legally impossible conditions] 708 [Wasserzug v Administrators Estate Nathanson] 709 [Void for uncertainty] 711 [The first condition] 713 [The second condition] 714 [Religious persuasion] 714


[Joinder of parties] 717 [Bekker v Meyring, Bekker’s Executor] 717 [Three types of cases on the interpretation or validity of wills] 723 [Interested parties] 723 [Minors must be represented by curator ad litem] 723 [Action against executor not binding as res judicata on beneficiaries] 724 [Prejudicial to beneficiaries] 724 [Usual response to non-joinder] 725

SMITH AND ANOTHER v ESTATE SMITH 1949 (1) SA 534 (A) .......... 727

Cases, themes


—76 —

[Clause 10 of the will] 727 [Vesting of testamentary dispositions] 728 [Vesting of ownership in face of usufructuary interest] 728 [Dominium in deceased’s property] 729 [Dominium in fiduciary] 729 [Deceased’s intention and language of will] 730


[No will can be analysed in vacuo] 734 [Novation v election (waiver)] 734

KRIEL v KRIEL AND ANOTHER 1948 (3) SA 309 (A) ........................... 737 [Clause 2(8) of the will] 737 [Conditional obligation as bequest price] 737


[Operative part of will] 741 [Words & phrases: ‘children’] 741 [Words & phrases: ‘sons’ v ‘grandson’] 742 [Words & phrases: ‘stock’] 742 [Words & phrases: ‘father’] 743 [Words & phrases: ‘their descendants’] 744

The superior courts on wills


—77 —

The superior courts on wills


—78 —

2019—Goosen v Wiehahn


—79 —

2019

GOOSEN v WIEHAHN (761/2018) [2019] ZASCA 137

Ponnan, Cachalia, Zondi, Dambuza and Nicholls JJA

1 October 2019

Appeal allowed.

Beneficiary exercised right under will to acquire properties at determined price. ‘Real source’ of the right is ‘disposition by the testator’, which was its fons et origo; consequently right was not

pactum de contrahendo, and acquisition was ‘acquisition by succession’.

Per PONNAN AJ (unanimous)

[Footnotes suppressed.]

[Nothing ‘like a will for fomenting family dissension’]

[1] As Nugent AJ observed ‘there is nothing quite like a will for fomenting family dissension’. The will in question in this case is that of the late Abraham Gerhadus Geldenhuys (the testator). The testator’s property included two farms described as Hunites and Holte. In his will executed on 27 November 1990, the testator bequeathed the two farms to his spouse, Alberta Johanna Geldenhuys (Mrs Geldenhuys), subject to the following testamentary conditions:

2.1. The spouse of my daughter, Johanna Magrietha Goosen, born Geldenhuys, will, in the event of my spouse intending to sell the properties, have the first option to buy the farm Hunites and/or the farm Holte on the following terms: 2.1.1. The purchase price of the farm Hunites will be calculated

at R20,00 per morgen and the purchase price of Holte will be calculated at R30,00 per morgen.

2.1.2. The purchase price(s) mentioned above shall be payable within 5 years from date of registration together with interest calculated from date of registration of transfer on and amount and payment of which is postponed, and at the rate of 7% annum and which interest will be payable together with the capital amount.

2.2. In the event of the property(ies) being sold, the proceeds thereof together with interest must be divided as follows: 2.2.1 One half thereof to my spouse, Alberts Johanna Geldenhuys;



—80 —

2.2.2. One half for equal distribution to my four children, Elsa Wilhelmina Wiehahn, (born Geldenhuys), Johanna Magrietha Goosen, born Geldenhuys, Abraham Gerharduys Geldenhuys and Phillipenta Jacomina Jordaan, (born Geldenhuys).

2.3. If my spouse does not sell one or both farms during her lifetime, the spouse of my daughter, Johanna Magrietha Goosen (born Geldenhuys), shall have the option as described in clause 2.1 above, upon the death of my spouse and for a period of 3 months thereafter, to buy the property (one or both) on and subject to the same terms as described in clause 2.1 with sub-clauses above and subject to the conditions of clause 7 below.

2.4. If the options mentioned in clause 2.1 and 2.3 are not exercised, the property shall be sold by way of public auction, subject however to the condition that if the offer received at auction is not accepted by all legatees they will not be obliged to sell the property at that auction, but will have a further 12 months to sell the property as they see fit, but will be obliged to sell the property for the highest offer received before the expiry of 12 months. In the event of a sale as provided for in this clause the proceeds will be divided in equal shares between my four children mentioned in clause 2.2.2.

Almost three decades later, some of the testator’s children are at loggerheads over the terms of clause 2.3 of the will.

[2] After the death of the testator on 26 May 1997, the farms were transferred to Mrs Geldenhuys, subject to the aforementioned testamentary conditions. During June 2000 the latter sold and transferred the farm Holte to Gert Johannes Scheepers Goosen (the first appellant), the spouse of the testator’s daughter, Johanna Magrietha Goosen (the second appellant), in accordance with the provisions of clause 2.1 of the will.

[Exercise of the option]

[3] Mrs Geldenhuys died on 5 December 2017. On 24 January 2017, and within three months of her death, as stipulated in clause 2.3 of the will the first appellant addressed the following letter to the fourth respondent, the Executrix of the Estate of the late Mrs Geldenhuys (the executrix):

Exercise of Option—Farm Hunites I hereby inform you that I am going to exercise the option on the farm Hunites, according to the terms of the Will of my late father-in-law, AG Geldenhuys.’



—81 —

On 30 March 2017 the executrix entered into a written agreement of sale with the first appellant for the farm Hunites for the sum of R176 200, being R20,00 per morgen as stipulated in clause 2.1.1 of the will.

[The litigation]

[4] Approximately two months later, one of the testator’s daughters, Elsa Wilhemina Wiehahn (the first respondent), launched an urgent application out of the Northern Cape Division of the High Court, Kimberley. The appellants were cited in the application as the first and second respondents. The testator’s remaining two children, Abraham Gerhadus Geldenhuys and Phillipentia Jacomina Jordaan, and the executrix, Master of the High Court, Kimberley and Registrar of Deeds, Kimberley were cited as the third to seventh respondents respectively.

[5] According to the first respondent, she was aggrieved that the purchase price, fixed for the farm Hunites in terms of clause 2.1.1 of the will, was but a tiny fraction of its actual value of some R5,2 million. She claimed that this was ‘utterly unreasonable and clearly not what [her] late father contemplated at the time’. Although the original notice of motion has not been included in the record, one can certainly glean the nature of the relief initially sought by the reference to the first respondent’s founding papers. In this regard her founding affidavit reads:

11. This is an application under the common law to depart from the provisions imposed by clause 2 of [the] will and testament of Estate Late Abraham Gerhardus Geldenhuys executed on 27 November 1990 (‘the Testament’) insofar as it restricts the purchase price of the immovable property known as Farm Hunites…(‘the Property’). 12. In the alternative, the application seeks the removal, alternatively modification as the Honourable Court may deem fit, of the restriction imposed by clause 2 of the Testament on the Property in terms of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965.

Later the first respondent added:

28. The Court will note from the relief sought (in [the] main) that I essentially ask of this Court to depart from the Second and Third Restrictions of the Testament, in that the Property can be sold at market value or such lesser amount as the Court may deem fit, but that the First Respondent will still have the first option to purchase the Property should he wish to do so. In the alternative, the Court will note that I seek essentially the same relief, albeit under the Immovable Property (Removal



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or Modification of Restrictions) Act 94 of 1965. I submit that this is most sensible and just towards the First Respondent.

[6] In time, the first respondent’s notice of motion came to be substantially amended. In its amended form, it read:

2. That the written agreement of sale entered into between the First Respondent and the Fifth Respondent on 30 March 2017 in respect of the property known as Farm Hunites, Farm Number 84 situated in Namaqualand, Northern Cape and held by Title Deed Number T20365/98 as registered with the Registrar of Deeds, Kimberley (‘the Property’) marked Annexure ‘F’ hereto be declared to be null and void; 3. That the Fifth Respondent be ordered to deal with the Property in accordance with clause 2.4 of the will and testament of Estate Late Abraham Gerhardus Geldenhuys executed on 27 November 1990 marked Annexure ‘A’ hereto. 4. That the Fifth, Sixth and Seventh Respondents do all things necessary so as to give effect to paragraph 3 above.

[7] Importantly, no case for such relief had been made out in the first respondent’s founding affidavit. The first hint of a claim for such relief is to be found in her replying affidavit. She there stated:

6. However, before I do so, I wish to place the following before Court: At the heart of the First and Second Respondents’ case (or [defence]) is the so called option that was ostensibly extended to the First Respondent in the Testament of my late father. They solely rely on clause 2.3 of the Testament and the purported exercise of such option as a legal ground for the conclusion of the deed of sale entered into between the First Respondent and the Fifth Respondent in respect of the Property. 7 Put differently, the First Respondent contends that clause 2.3 of the Testament constitutes an option to purchase immovable property that can be exercised by him. This contention of the First Respondent is fundamentally flawed. 8. I am advised that an option (a form of a pacta de contrahendo) in respect of the sale of land is governed by the Alienation of Land Act 68 of 1981. In particular, section 2(1) of the Act reads:

No alienation of land after the commencement of this section shall, subject to the provisions of section 28, be of any force or effect unless it is contained in a deed of alienation signed by the parties thereto or their agents acting on their written authority.

9. Accordingly, an option in respect of the sale of land must…be in (i) writing and (ii) signed by the parties thereto. 10. Notably the so called option was not signed by the First Respondent,



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rendering the option null and void or unenforceable. As a result, the First Respondent has neither a valid option in respect of the Property, nor a right to claim transfer of the Property in respect of the Deed of Sale.

[8] That contention found favour with Lever AJ in the high court, who granted the first respondent the relief sought in her amended notice of motion. In arriving at his conclusion that she was entitled to the relief sought, Lever AJ reasoned:

43. In my view, what is contemplated by the provisions of clause 2.3 is clearly an option. This would be subject to formalities prescribed under the Alienation [of Land] Act. It is common cause that such formalities were not complied with. In such circumstances the applicant is entitled to have the sale of the farm Hunites, entered into between the first and the fifth respondent on 30 March 2017, declared null and void as contemplated in prayer 2 of the amended Notice of Motion.

[The golden rule of interpreting a will]

[9] As I see it, the reasoning and conclusion of Lever AJ cannot be supported. It is important to reiterate that when interpreting a will, a court must strive to ascertain the wishes of the testator from the language used. Generally, the language used must be construed in the context of the circumstances that prevailed at the time the will was executed. Moreover, there is a presumption that ‘in doubts as to the interpretation of testamentary writings, that construction should be adopted which would give effect to the voluntas of the testator, rather than that which would nullify the deed’.

[10] Here, the testator had directed in his will that his executor must transfer both farms to Mrs Geldenhuys, subject to the stipulated conditions. In that regard, clause 2.1 found application during her lifetime and clause 2.3 upon her death. It is clear that she had to adiate under the will before the rights conferred upon her thereunder could become enforceable. Thus, although she acquired dominium upon transfer, she was not free to simply dispose of the farms as she saw fit. Her right to do so was fettered by the right granted to the first respondent by the testator.

[Personal, not real rights]

[11] The first respondent did not acquire a real right to immediately enforce transfer. Rather, he acquired a personal right that was enforceable: firstly, against Mrs Geldenhuys, during her lifetime, and secondly, against her executrix, upon her (Mrs Geldenhuys’) death. Having elected to sell Holte, Mrs Geldenhuys was obliged to first offer



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it to the first appellant on the terms stipulated by the testator in clause 2.1 of the will. That she did, leading to the conclusion of the resultant agreement of sale on the terms stipulated in clauses 2.1.1 and 2.1.2 of the will. The farm Hunites, not having been sold during Mrs Geldenhuys’ lifetime, fell to be dealt with by the executrix in accordance with clause 2.3 of the will. In that sense the executrix, who had ‘stepped into the shoes’ of Mrs Geldenhuys, was as much bound by the testamentary conditions as Mrs Geldenhuys had been during her lifetime.

[12] As with Mrs Geldenhuys during her lifetime, the first appellant had a personal right that was enforceable against the executrix, upon the former’s death. Like Mrs Geldenhuys before her, the executrix was also not free to simply dispose of Hunites. Clause 2.3 of the will compelled the executrix to put the first appellant in the position to exercise the right to purchase that farm in accordance with the terms of clause 2.1. In that respect, the nature of the right conferred upon the first appellant by the testator, in terms of clause 2.3, was no different to that conferred in terms of clause 2.1. Any difference between the two, such as there is, related to the circumstances under which each fell to be exercised by the first appellant. The right conferred by clause 2.1 fell to be exercised by the first appellant during the lifetime of Mrs Geldenhuys, and that conferred by clause 2.3, upon her death.

[Right arose from testamentary disposition, not pactum de contrahendo]

[13] The first appellant could have chosen never to enforce his right in respect of either farm. In that event the will contains detailed alternative provisions. But, he had chosen in each instance to do so. The ‘real source’ of the right in question in this case is the ‘disposition by the testator’. The testamentary disposition was the ‘fons et origo’ of the right. The right is not a pactum de contrahendo (an agreement to make a contract), ‘as it has been regulated through a testamentary disposition’. In these circumstances, the eventual acquisition by the first appellant of the property bequeathed would be an ‘acquisition by succession’ and the fact that some ‘juristic act by the beneficiary is a prerequisite to his acquisition is not, per se, a bar to such acquisition being one by succession’.

[14] It follows that Lever AJ misconceived the position and that the application by the first respondent ought to have failed. Counsel for her was constrained to concede as much from the bar in this court.

2019—Grobler v Master


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GROBLER v MASTER OF THE HIGH COURT & OTHERS (645/2018) [2019] ZASCA 119

Maya P, Leach and Dambuza JJA and Mokgohloa and Plasket AJJA

23 September 2019

Deceased with will properly executed at time of first marriage, presented with draft will prepared by deceased’s financial adviser.

Section 2(3) of Wills Act not applied, since no intention that final document was to be will.

Per MAYA P (unanimous)


[The facts]

[1] This is an appeal against the judgment of the Gauteng Division, Pretoria (Janse van Niewenhuizen J). The court a quo dismissed an application in which the appellant, Mrs Paula Grobler, sought, inter alia, (a) a declaration that an unsigned will of the late Mr Leon Peter Grobler (the deceased) constituted his last will and testament and (b) the appointment of the appellant and Imke Dekker Prokureurs as the executors of his estate. The appeal is with the leave of the court a quo.

[2] The appellant is the deceased’s widow and second wife to whom he was married, out of community of property, at his death. The third to the sixth respondents, Mr Leon Rudolf Grobler, Mr Pieter Johannes Grobler, Mr Henk Johannes Grobler and Mrs Elsie Susanna Olivier, are the deceased’s biological children who were born of his marriage to his first wife. The second respondent, Mr Marthinus Christoffel Barnard, is the executor of the deceased’s estate. The only relief sought against him was that he and the first respondent, the Master of the High Court, Pretoria should stay the finalization of the deceased’s estate pending the outcome of the application.

[3] It is common cause that before he died on 26 December 2015, the deceased had signed a properly executed will on 16 April 1996, which was still in existence at his death. This was before he met the appellant whom he married on 30 January 2010. It appears, however, that he wished to revise it because in January 2013 he instructed Mr Siegfried Eugene Stander, a senior financial [adviser] employed by Old Mutual Life Assurance Company (SA) Ltd, to prepare a will for him. Their exchange on this subject is contained in a chain of email



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communications, which commenced with a message dated 9 January 2013. The deceased requested Mr Stander to provide him with specimens of wills dealing with bequests of movable and immovable assets to surviving partners and children.

[4] The correspondence between the deceased and Mr Stander and among Mr Stander’s office staff, each one acknowledged by the deceased in writing, went back and forth until 8 August 2014. By then a draft will, which had been amended a few times to incorporate the deceased’s various wishes, was in place. The long email trail shows that over that period of 20 months the deceased doggedly sought an equitable disposition of his assets among the appellant and his children, the respondents. The main assets were his immovable property, the family home in Helderkruin, Roodepoort and a holiday property in Margate, in respect of which he wanted the appellant to enjoy only a right of usufruct either until her remarriage or her being in an intimate relationship that had lasted for longer than six months.

[5] The last email before the deceased died, was sent to him by the appellant on 12 August 2014. This was apparently in response to an email he sent to Mr Stander’s personal assistant, Ms Hannelie van der Walt, on 8 August 2014. The deceased’s message was copied to both the appellant and Mr Stander and was, in turn, a reply to Mrs Van der Walt who had recently sent him yet another revised draft with an invitation for his comments. He wrote as follows:

Hi Hannelie, Thank you for the will This, however, does not address my property in Margate I think it will be better to keep both houses in Trust with Paula having sole usufruct of the house in Helderkruin and the Margate property for everybody’s use (Paula and the children) Both properties can be sold and divided up with a greater benefit to Paula with regard to the house at Helderkruin, if Paula and the children reach consensus on this, at any stage. Please advise if this could be a possibility.

[6] The tone of the appellant’s response to the deceased was rather sharp. The email also disclosed that this was a touchy subject. This may also explain why she decided to communicate with her husband, with whom she lived, in writing, instead of talking to him. She wrote:

You and I have had this discussion already. I do NOT want usufruct, Margate is fine, but not Helderkruin. Can I make a suggestion that I pay each of the children R250 000. That would mean that I buy the Margate house for a million. The rest is my share. I should be able to get a loan at the bank for R1 million. I know it is



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uncomfortable talking about this, but I will not live like a squatter in my own house. Why are we making the house beautiful—so that somebody else can buy it one day? Who is to say that I [will not] pass away before you—then you will not have a problem anymore and you can give the house to whomever you want.’

[7] Thereafter, the deceased and Mr Stander met on 18 and 19 November 2014 and again, for the last time, at the deceased’s home on 25 November 2014. According to the appellant and Mr Stander, at the last meeting the deceased suggested further amendments to the draft will. Mr Stander recorded these on a typed version of the draft will in manuscript and understood them to constitute the deceased’s final instructions that he would later effect electronically. He would thereafter arrange a formal meeting with the deceased and the appellant for the signing of their final separate wills as he was also tasked with drafting one for the appellant.

[8] On 17 December 2014 Mrs Van der Walt sent the draft will to the deceased and the appellant, who were on holiday abroad. The accompanying message requested the deceased to read the draft will and inform Mrs Van der Walt if he wished to make any alterations. The draft will, inter alia, vested the appellant with lifelong usufruct, free of the obligation to pay security, over the immovable property and one half of the nett profit of any sale proceeds if they were sold, the rest to be shared among the respondents in equal parts. Nothing happened thereafter and all was quiet until the deceased died a year later, whereupon the appellant approached the court a quo in these proceedings. According to her, the deceased and Mr Stander were unable to meet and finalize the draft will during 2015 because of the deceased’s busy schedule. Nevertheless, no correspondence confirming the deceased’s receipt of the email of 17 December 2014, as he previously did, or setting up a meeting between him and Mr Stander during that entire year was produced.

[The court a quo]

[9] The court a quo dismissed the application on the bases that the final draft will was not drafted by the deceased and that there was no proof that he even received the email of 17 December 2014 and approved the draft will. The court held that in light of relevant case law, in particular the judgment of this Court in Bekker v Naude en andere, the unsigned document could not be accepted as the deceased’s will within the exceptions set out in s 2(3) of the Wills Act 7 of 1953 (the Wills Act).

[Section2(3) of the Wills Act]



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[10] On appeal before us, it was contended on the appellant’s behalf that she was entitled to the declaratory relief she sought because the requirements of s 2(3) of the Wills Act were met. This was so, it was argued, because the deceased ‘played an active role in the drafting and completion’ of the draft will and it could be inferred in the circumstances of the matter that he did receive it. We were urged to consider the technological advances since the Bekker case, which make it easy for people to communicate by electronic means, and accordingly apply the relevant statutory requirements.

[11] Section 2(1) of the Wills Act, which is designed to ensure authenticity and guard against false or forged wills, stipulates the formalities required in the execution of a valid will. It reads, in relevant part:

(1) Subject to the provisions of section 3bis— (a) no will executed on or after the first day of January, 1954, shall be

valid unless— (i) the will is signed at the end thereof by the testator or by some

other person in his presence and by his direction; and (ii) such signature is made by the testator or by such other person

or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page; and….

[12] However, s 2(3) creates an exception to these requirements and provides:

If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).

[13] Condonation of non-compliance with the testamentary formalities set out in s 2(1) is, therefore, possible in terms of these provisions as they empower courts to validate a document that would otherwise not



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pass muster as a will due to a technical flaw in its attestation. The purpose of the provisions is to avoid thwarting the lawful wishes of the deceased would-be testator. However, the document must have been drafted or executed by the deceased whose will it purports to be, ie created or prepared by the deceased personally. Furthermore, the court must be satisfied on a preponderance of probabilities that the deceased intended it to be his or her will. And once satisfied that the document meets the requirements of s 2(3), the court is obliged by these peremptory provisions to order the Master to accept it as the deceased’s will.

[Outcome]

[14] The question relating to the first jurisdictional requirement ie whether the draft will was drafted by the deceased, presents no difficulty. The answer is an unequivocal ‘No’. It is clear from the evidence that the document was prepared by Mr Stander. The amendments which followed were also effected by him. The deceased was then presented with the draft will under cover of Mrs Van der Walt’s message which expressly anticipated further consideration and alterations. And as the court a quo rightly found, there is simply no indication on the record that the deceased received the document sent on 17 December 2014 and accepted it as his will, which merely awaited signature. The uncertainty is heightened by the apparent discord between the deceased and the appellant regarding the nature of the latter’s inheritance of the deceased’s immovable property and the lapse of a whole year with no tangible move by any of the parties to finalize the exercise. In the absence of evidence that establishes that the deceased received, perused and approved all the contents of the draft will, I am unable to find that he intended it to be his will. The appeal must accordingly fail.


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2018—Naidoo v Discovery


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2018

NAIDOO v DISCOVERY LIFE LIMITED & OTHERS (202/2017) ZASCA 88

Shongwe ADP, Wallis and Mbha JJA and Hughes and Schippers AJJA

31 May 2018

Appeal dismissed.

Nomination of beneficiary under risk-only policy containing beneficiary clause (stipulatio alteri) changed by deceased. Such a policy cannot be

an asset in the estate of the policyholder and of joint estate from marriage in community of property, and not an insurance policy under

s 15(2)(c) of Matrimonial Property Act.

Per MBHA AJ (unanimous)


[Is policy asset, nomination an alienation?]

[1] This appeal raises two questions. The first is whether a risk-only life insurance policy with a beneficiary nomination clause is an asset of the policyholder during his or her lifetime; and the second, whether the nomination of a beneficiary by a policyholder married in community of property, constitutes an alienation of that policy as contemplated in s 15(2)(c) of the Matrimonial Property Act 88 of 1984 (the Act).The Gauteng Division of the High Court, Johannesburg, answered both questions positively. The appeal is with leave of this court.

[The facts—policy was risk-only]

[2] The basic facts are the following. The appellant and Mr Merglen Naidoo (the deceased) were married in community of property on 17 July 1996.

[3] On 23 May 2002, the deceased made an application to the first respondent (Discovery) for a joint life assurance with policy number 5100022093 (the policy). In terms of the policy, the deceased was defined as the principal life insured and the owner of the policy. The deceased nominated the appellant as the beneficiary of the proceeds of the policy upon his death. The policy provided further that the owner could instruct Discovery in writing to change the beneficiary at any time and that the appointment of a beneficiary was revocable at all times



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during his lifetime. Importantly, the policy provided that a nominated beneficiary was not entitled to any benefits during the lifetime of the principal life assured.

[4] It is common cause that the policy was a risk-only policy meaning that it had no monetary value unless and until the person whose life was insured died. It had no investment portion and thus no surrender value. It also provided that no benefits would be payable on its cancellation.

[5] On 11 October 2011 the deceased wrote to Discovery and requested a change of beneficiary details to reflect both his parents, his brother and his sister as beneficiaries to the policy. It is common cause that the appellant was unaware of this change.

[6] After the deceased’s death on 6 March 2012, the newly appointed beneficiaries accepted the benefits of the policy by claiming payment of the proceeds in the total sum of R3 174 357 and Discovery duly made payment to them. The new beneficiaries were subsequently joined as third parties in the proceedings in the court a quo by Discovery on the basis that in the event the court were to find that the nomination of such third parties, who have since been paid the proceeds of the policy, was in breach of s 15(2)(c) of the Act, the third parties would be liable to indemnify Discovery. These conditional claims were based on unjustified enrichment. Discovery did not pay any amount to the appellant and denied that it had any liability to do so.

[The wife’s argument]

[7] Counsel for the appellant contended that the aggregate of rights and obligations under the policy vested in the joint estate, which included the right to nominate a beneficiary, receive payment of the sum insured and revoke a nominated beneficiary. Therefore, so it was contended, the deceased could not nominate the third parties as beneficiaries without the appellant’s written consent as envisaged in s 15(2)(c) of the Act.

[Was policy an asset? (stipulatio alteri)]

Was the policy an asset of the policyholder during his lifetime? [8] This court has authoritatively determined that a contract in favour of a third party underlies the legal concept of a beneficiary clause in a life insurance policy. The policyholder (stipulans) contracts with the assurer (promittens) that an agreed offer will be made by the assurer to a third party (the beneficiary), with the intention that on acceptance of that offer by the beneficiary, a contract will be established between the beneficiary and the assurer. The offer involved is that the insurer will pay the proceeds of the policy to the beneficiary.



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[9] The beneficiary clause is currently widely used in assurance contracts and this can be attributed to two main factors. First, the policy proceeds are immediately made available to the beneficiary on the death of the policyholder, without the beneficiary having to wait until the deceased’s estate is wound up before he or she can claim and receive the policy proceeds. Secondly, the policy proceeds do not form part of the deceased estate for purpose of the calculation of the executor’s remuneration. Clearly, at the heart of those two main advantages is the avoidance or bypassing of the deceased estate.

[10] When a policy is a risk-only policy, as in this case, payment of the policy proceeds occurs only upon the death of the insured life. It follows that by definition the policy proceeds can never be paid to the policyholder or the beneficiary during the lifetime of the insured life. The only rights that the policyholder has during his or her lifetime emanate from the policy itself. Typically these are the contractual rights to nominate a beneficiary and to change the beneficiary nomination, the right to cede the policy and the right to terminate the policy.

[11] This court has determined that the policy itself is not an asset in the estate of the policyholder. As Rabie AJ described it in Borman en De Vos NNO (above at 507A): ‘where a person has paid the premiums but has no corresponding claim during his or her lifetime, it can be said that an asset has been separated or withdrawn from his estate’. (My translation.) This court affirmed that approach in Pieterse v Shrosbree NO & others and said that in the ordinary course the proceeds of an insurance policy will go directly to a nominated beneficiary.

[12] As the policy in issue was a risk-only policy which could not be an asset in the estate of the deceased, on the strength of the authorities referred to above, it follows that it could never be an asset in the joint estate. During the deceased’s lifetime the appellant had no right to receive the proceeds of the policy and therefore viewed from this perspective, the policy was also not an asset in the joint estate.

[Was nomination an alienation under Matrimonial Property Act?]

Was the nomination of a beneficiary an alienation under section 15(2)(c)? [13] Section 15 of the Act reads, in relevant parts, as follows:

(1) Subject to the provisions of subsections (2), (3) and (7), a spouse in a marriage in community of property may perform any juristic act with regard to the joint estate without the consent of the other spouse. (2) Such a spouse shall not without the written consent of the other spouse—



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(a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;

(b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate;

(c) alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate;

(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;

(e) withdraw money held in the name of the other spouse in any account in a banking institution, a building society or the Post Office Savings Bank of the Republic of South Africa;

…

[14] The law relating to the interpretation of legislation in this country is well-settled. In Natal Joint Municipal Pension Fund v Endumeni Municipality, this court expounded the principle as follows:

[18]…. Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence…The ‘inevitable point of departure is the language of the provision itself’, read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. …. [26]…in most cases the court is faced with two or more possible meanings that are to a greater or lesser degree available on the language used. Here it is usually said that the language is ambiguous, although the only ambiguity lies in selecting the proper meaning (on which views may legitimately differ). In resolving the problem, the apparent purpose of the provision and the context in which it occurs will be important guides to the correct interpretation. An interpretation will not be given that leads to impractical, unbusinesslike or oppressive consequences or that will stultify the broader operation of the legislation or contract under consideration. (My emphasis.)

[15] The main purpose of the Act was to repeal the common law rule in terms of which a husband obtained the marital power over the person and property of his wife. The effect is that husband and wife are now equal partners and she can enter into legal transactions on her own. Section 15(1) of the Act reinforces the general rule that a spouse in a



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marriage in community of property may perform any juristic act regarding the joint estate without the consent of the other spouse.

[16] Section 15(2)(c) of the Act creates an exception to the general rule by prohibiting a spouse married in community of property from alienating an asset in the joint estate without the written consent of the other spouse. Clearly, whilst the intention of the legislature was to give both spouses equal right of disposal with regard to the joint estate, that does not indicate a general intention that they should act jointly in all transactions. Except in special reserved cases, the legislation enabled them to exercise that competence independently of each other.

[17] With this in mind, it follows that when examining whether a spouse is prohibited in terms of s 15(2)(c) of the Act from dealing with impugned property without the written consent of the other spouse, the crucial enquiry is whether such property forms part of the joint estate. If the said property cannot be regarded as ‘forming part of the joint estate’ then s 15(2)(c) of the Act is not applicable and the spouse may deal with such property as he or she pleases.

[18] Applying the principles of interpretation in Endumeni (above), the words ‘insurance policies’ found in s 15(2)(c) cannot be read in isolation. They must be interpreted consistently with the other financial instruments listed in the section and with the catch-all phrase ‘any similar assets’, to refer to insurance policies that are assets. In this context they clearly include policies having a current value, such as endowment policies or retirement annuities that can be surrendered or made paid up. Pure risk policies such as life, motor, fire and theft or household goods policies are of a different character. They are contracts for the provision of an indemnity in the event of a future risk occurring. The interpretational issue is whether they are ‘insurance policies’ in terms of the section, in other words are they assets of the joint estate.

[19] The words must also be interpreted consistently with sub-paragraphs (a)–(e) in the section referring specifically to assets in the joint estate consisting of other real rights and property like mortgages, servitudes over immovable property, jewellery, coins, investments, money and so forth. Clearly, the meaning to be ascribed to the word ‘asset’ depends on the context. Thus in Ex Parte Logan 1929TPD201 (at 203) assets were described as property that could be applied to the payment of debts.

[20] From the above it follows that not every contractual right constitutes an asset. Hence, the rights of the policyholder in a risk-only policy before the death of the insured life are not assets and do not constitute ‘insurance policies’ as envisaged in s 15(2)(c). A contractual



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right that confers a power on the policyholder to appoint a beneficiary to receive the proceeds of a policy upon the death of the insured life, is not a right that can be applied to the payment of debts. The rights the deceased had during his lifetime to deal with the policy, were not assets at all. If they were assets, these rights do not constitute an insurance policy within the meaning of s 15(2)(c) of the Act.

[21] The restrictions imposed by s 15(2)(c) of the Act apply only to alienation of insurance policies that are assets and form part of the joint estate. This section finds no application to the facts in this case.

[Ndaba distinguished]

[22] The appellant’s reliance on Ndaba v Ndaba is misplaced. This case is clearly distinguishable as it dealt with a pension interest which is an asset analogous to the right to be paid a surrender value under an insurance policy with an investment portion. The policy in issue here has no investment portion and no surrender value.

[Nomination under policy not transfer of asset in estate]

[23] The nomination of a beneficiary to receive the proceeds of a life insurance policy and the subsequent revocation of such nomination accompanied by the substitution of new beneficiaries does not in any event constitute the transfer of a right constituting an asset in the joint estate. It is merely the exercise of a contractual right created by the policy.

[24] In this case, the deceased after nominating his family members as beneficiaries, retained the right to cancel that nomination and nominate someone else. He has not disposed of anything. He never lost the rights that he had under the policy. He retained those rights until his death.

[25] For these reasons, the nomination of the third parties as beneficiaries did not constitute an alienation of the policy within the meaning of s 15(2)(c) of the Act and the appeal must fail.

2018—Standard Bank v July


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STANDARD BANK v JULY (525/2017) [2018] ZASCA 85

Lewis, Wallis, Saldulker and Mocumie JJA and Rogers AJA

31 May 2018

Appeal dismissed.

Deceased executor sold estate assets unlawfully before his death. Under the Beningfield exception, beneficiary of deceased estate may claim

assets from the person in possession.

Per LEWIS AJ (unanimous)

[Did respondents, not being executors, have locus standi?]

[1] A family feud about a deceased estate, and immovable property owned by it, has given rise to the litigation on which this appeal turns. The dispute itself is not before us. The only issue determined by the court a quo (the Eastern Cape Local Division, Mthatha, per Dawood J), to which I shall refer for convenience as the high court, was whether the respondents, the applicants in the high court, had locus standi in judicio to claim return of immovable property transferred from the deceased estate to the first respondent, Mrs Tembisa Mbuqe. They were not the executors of the deceased estate. The objection to their standing was raised by the appellant, the Standard Bank of South Africa Ltd (the bank), which was joined as a respondent by virtue of its having two mortgage bonds registered over the property in question.

[Words and phrases: the Beningfield exception]

[2] The high court held that although as a general rule only an executor can claim on behalf of an estate, there is an exception to this principle, known as the Beningfield exception, which allows beneficiaries of an estate to claim where the executor will not or cannot. Dawood J considered that since the executor of the estate was himself deceased, the beneficiaries could make claims against a person who had taken transfer of immovable property when not entitled to do so. She held that the applicants had locus standi to make the claims. A referral to oral evidence is pending the decision of this court on the respondents’ locus standi. Only the bank, raised the issue of locus standi and only it has appealed against the order, with Dawood J’s leave. The other respondents in the high court abide the decision of this court.

[The facts]



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[3] The case involves the estate of Mrs Eunice Mbuqe, the widow of the late Zachariah Mbuqe. They had two children, Mr ZR Mbuqe, referred to in the papers as Ray, and his sister, Mrs Linda July, who was married to the first respondent, Mr MR July, and who in his capacity as executor of her estate is the second respondent. They in turn had two children (the grandchildren) who are the third and fourth respondents. Ray Mbuqe was married to Mrs Tembisa Mbuqe and they appear to have had four children, who were cited as respondents in the high court, but played no role in this part of the proceedings. Mrs Eunice Mbuqe died intestate on 19 March 2003, her daughter Linda July died, also intestate, on 13 June 2004 and Ray Mbuqe died on 5 November 2008.

[4] The disputes about the estate are, for present purposes, set out in the founding affidavit of Mr July. The allegations were contested by the respondents in the high court (hence the referral to oral evidence), but for the purpose of the appeal, I shall assume that the contentions by Mr July are correct. The application was for an order setting aside the appointment of Ray as the executor in the deceased estate of Mrs E Mbuqe, referred to as Eunice, his deceased mother; setting aside the transfer of immovable property in the district of Mthatha, in the King Sabata Dalindyebo Municipality (the first immovable property) out of Eunice’s estate to Mrs T Mbuqe (Tembisa), the first respondent in the high court, and setting aside the transfer of a second erf, also in Mthatha (the second immovable property) by Ray to his wife, Tembisa. The bank has no interest in the second immovable property and it is not in issue in this appeal[.]

….

[6] According to Mr July he had been married to Mrs L July (Linda), who was the daughter of Zacharia and Eunice Mbuqe. Ray was their son, and Linda’s brother. Both Zacharia and Eunice died before their children did. Zacharia, in terms of his will, left the first immovable property to Eunice, Ray and Linda. Mr July alleged that Ray, who had been appointed as the executor of Zacharia’s estate, and who was an attorney and conveyancer by profession, effected transfer of the first immovable property only to Eunice. He acted on the strength of a power of attorney purportedly given to him by Eunice. Mr July ascertained long after this had happened that Ray had informed the Registrar of Deeds, Mthatha, that Ray and Linda had renounced their rights to inherit under Zacharia’s will. This, Mr July contended, was false as Linda had kept demanding her share of the inheritance from Ray, who had not ever explained what had happened.

[7] Eunice died, intestate, on 19 March 2003. An executor was not appointed to her estate immediately, despite Linda’s requests to Ray that



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this be done. Apparently Linda was ill at the time and Ray did not accede to her requests before her death on 13 June 2004. When Linda died, there was still no executor in Eunice’s deceased estate.

[8] Linda also died intestate. Her share in Eunice’s estate would thus have devolved on Mr July and the grandchildren—the children of Linda and Mr July. However, Eunice’s estate had not been wound up by the time that Ray died, on 5 November 2008.

[9] Mr July did not press for the appointment of an executor to Eunice’s estate as he had been informed that a particular attorney was seeing to the winding up of the estate, and he had confidence in him. Mr July was properly appointed as the executor of Linda’s estate on 3 September 2004.

[10] In the process of winding up Linda’s estate, Mr July asked the widow of Ray, Tembisa, what had happened in respect of Eunice’s estate. He did not get satisfactory answers and so began making enquiries of the Master, who was cited as the seventh respondent in the high court. His enquiries revealed what he said were irregularities, including that Tembisa had informed the Master that Eunice had had only one child; Tembisa herself had applied in terms of s 18(3) of the Administration of Estates Act 66 of 1965 to be appointed as executrix in Eunice’s estate, despite the fact that her late husband Ray had been appointed as executor on 4 November 2005; and Ray had sold the first immovable property to Tembisa, despite the requirement, in s 49(1) of the Act, that where an asset in an estate is sold to the spouse of an executor, the Master’s consent is required. Ray had prepared the deed of sale to his wife, to whom he was married out of community of property, and purportedly effected transfer to her. Mr July contended that Ray had not obtained the Master’s consent.

[11] When Tembisa had bought the first immovable property from the estate, she financed its purchase through registering a bond in favour of the bank. She obtained a loan against the security of the bond on 25 April 2006. She obtained a second loan from the bank on 20 June 2010, and registered a second bond over the immovable property. Her total indebtedness to the bank was R1,785 million. Mr July alleged that the late Ray’s and Tembisa’s conduct was a blatant fraud. The sale agreement was void because of the requirement of the Master’s consent in terms of s 49(1) of the Act, and the transfer to Tembisa was vitiated by fraud. If the allegations are found to be correct the transfer would indeed be of no force and effect, but that does not currently concern us.

[12] Mr July alleged a second fraudulent transaction and transfer in respect of the second immovable property that had been owned by his



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wife, Linda. She had never disposed of it, but when he conducted a search in the deeds office, he discovered that Linda’s property had been transferred to Ray, who had claimed to have a power of attorney to do so from Linda. The grandchildren were entitled to have inherited that property, he said.

[Application of the Beningfield exception]

[13] That brings me to the crux of the appeal—locus standi of the applicants in the high court. When the application was brought, the estate of Eunice had not been wound up. There was no executor as Ray had died and no one had been appointed in his place.

[14] The argument of the bank on appeal is that the remedy in the hands of Mr July, in his personal capacity, and in his capacity as executor of Linda’s estate, and in the hands of the grandchildren, is to apply in terms of s 18(1) of the Act for the appointment of an executor in the deceased estate of Eunice. The executor so appointed would then have the power to bring a rei vindicatio claiming possession of the first immovable property and the setting aside of the transfer to Tembisa.

[15] Dawood J in the high court found that it was unnecessary to follow this process. As persons with interests in Eunice’s estate, the respondents were entitled to make the claim themselves. She likened their claim to that in Gross & others v Pentz 1996 (4) SA 617 (A). There the beneficiaries had themselves asserted claims as contingent beneficiaries because one of the trustees of a testamentary trust was alleged to have maladministered the assets in the trust. Corbett CJ held that the position is the same in a case where an executor has maladministered a deceased estate (at 625D–E). Corbett CJ drew a distinction between an action on behalf of a trust—to recover trust assets or nullify transactions, the representative action—and an action brought by trust beneficiaries in their own right against the trustees or a trustee for maladministration, what he called a direct action.

[16] This court followed the decision of the Privy Council in Beningfield v Baxter (1886) 12 AC 167 (PC), an appeal from the Natal Supreme Court, in which an exception to the general rule that only an executor of an estate has locus standi in relation to estate assets and transactions, was recognized. The exception has come to be known in South Africa as the ‘Beningfield exception’ or the ‘Beningfield principle’. It was expressed thus by the Earl of Selborne (at 178–9):

When an executor cannot sue, because his own acts and conduct, with reference to the testator’s estate, are impeached, relief, which (as against a stranger) could be sought by the executor alone, may be obtained at the



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suit of a party beneficially interested in the proper performance of his duty….

[17] Corbett CJ, with reference to this passage, stated in Gross that a similar exception had been applied in earlier cases in South Africa without reference to Beningfield. A summary of these cases is to be found in Gross at 627D–628F. Corbett CJ said (at 628G–H):

In my view, the Beningfield exception should be recognized and the general rule modified to this extent. Clearly a defaulting or delinquent trustee cannot be expected to sue himself. The only alternative to allowing the Beningfield exception would be to require the aggrieved beneficiaries to sue for the removal of the trustee and the appointment of a new trustee as a precursor to possible action being taken by the new trustee for the recovery of the estate assets or other relief for the recoupment of the loss sustained by the estate. This, in my opinion, would impose too cumbersome a process on the aggrieved beneficiaries.

[18] This court went on to hold that beneficiaries who have no vested rights to the future income or assets in a deceased estate, such that their rights are merely contingent, have rights to ensure that the estate is properly administered, and that such beneficiaries may bring the representative action. Linda, as Eunice’s heir, would have a vested right in Eunice’s estate. And Mr July, as the executor of Linda’s estate, would be able to enforce that right.

[19] The bank argues on appeal that the high court wrongly applied the Beningfield exception. It should not have done, because there was no delinquent executor in place. There was no executor at all and thus no question that an executor continued to defraud the estate. There was no impediment that stopped the respondents from approaching the Master to make a new appointment.

[20] Dawood J held that it would be too cumbersome a process for the respondents to first sue for the removal of the executor, and then the appointment of a new executor, and that the beneficiaries should be allowed to pursue the application. That, asserts the bank, is unnecessary, given Ray’s death in November 2008, and that as at the date of the application Eunice’s death estate had not yet been wound up.

[21] The bank contends further that Mr July and the grandchildren, while heirs to Linda’s estate, are not heirs to Eunice’s estate. They are more remote than the contingent beneficiaries in Gross. However, Linda was herself an heir, and died intestate, so all three do have an interest in the proper administration of Eunice’s estate.



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[22] It is true that the respondents would not have to sue for the removal of an incumbent executor, thus making the process less cumbersome. And it is also true that they can request the Master to make a suitable appointment to the position. As the bank argues, if no executor is appointed there can be no execution against it, and it is important that the estate not be ‘rudderless’. It is now, however, some 15 years after Eunice’s death. The Master, if Mr July’s averments have any truth, allowed a sorry state of affairs to continue under his watch.

[23] In my view, the Beningfield exception, as approved in Gross, covers the situation in this case. In the court a quo in Gross (Pentz v Gross & others 1996 (2) SA 518 (C)) a contingent beneficiary of a trust sued for an order that Gross (one of two trustees) and others pay damages to the trust for maladministration. The defendants raised various defences to the particulars of claim, including that the plaintiff had lacked locus standi to institute the action, alternatively that he had ceased to have locus standi once Gross resigned as a trustee. The plaintiff excepted to these two defences.

[24] Scott J considered the Beningfield exception and held that it was applicable (which Corbett CJ confirmed when the matter was heard by this court). Scott J said, (at 526C–E) in relation to the exception to the alternative plea (that the plaintiff’s locus standi had fallen away because of Gross’ resignation):

I must confess that I have some difficulty in appreciating how a plaintiff with locus standi to sue a trustee for loss caused to the trust could be deprived of his standing by the defendant trustee adopting the simple stratagem of resigning as trustee. Counsel for the defendant suggested that the present case is analogous to the case where a defendant’s status changes by reason of his death or insolvency. This is clearly not so. The death or insolvency of a defendant, in any event, does not deprive a plaintiff of locus standi. The consequence of such a change in status is merely to stay the action.

[25] This statement of the law was expressly approved by Corbett CJ in Gross at 631C–D. The question is whether the position is any different where the delinquent executor has perpetrated the wrongdoing and then died or resigned, without any replacement being appointed. Must the heirs, vested or contingent, then follow the cumbersome process of approaching the Master to have a new executor appointed and allow the new appointee to become familiar with the estate and make a decision whether to try and reclaim the property? And, if that decision is adverse, as it might well be, what avenues for obtaining relief are then open to them?



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[26] In my view, it is unnecessary for the respondents first to ask the Master to appoint an executor to Eunice’s estate. There is no doubt that Linda could have sued Ray for maladministration of the estate and would have been entitled to a declarator that the transfer of the first immovable property was invalid. She would have had locus standi in an action against him. The fact that she died before him should not deprive her estate of that locus standi. And the fact of his subsequent death equally should not have deprived her estate of the standing to sue. Equally, the executor of Linda’s estate (Mr July) and the contingent beneficiaries in her estate, Mr July and the grandchildren, would then have standing in an action against the executrix of Ray’s estate (Tembisa) and his heirs, Tembisa and their children.

[Need for executor]

[27] The bank is correct in saying that Eunice’s estate needs an executor and that if the respondents are successful before the high court, an executor would be needed to prepare a liquidation and distribution account and to distribute the assets in the estate. However, until a court finds that the transfer of the first immovable property should be set aside, an executor will not know what assets there are to distribute. It is unhelpful thus to assert that the proper remedy for the respondents was to ask the Master to appoint an executor in terms of s 18(1)(e) of the Act. If they fail in the high court there may be no assets to distribute. It is in any event open to the bank itself to ask the Master to make such an appointment if it wishes to protect its security in the property, which is its only interest in this litigation.

[Contingent beneficiaries have locus standi]

[28] I accordingly find that Mr July in his capacity as the executor of Linda’s estate, and the other respondents, as contingent beneficiaries in the estate of Mrs Eunice Mbuqe, have locus standi to claim against the executrix of the estate of Mr ZR Mbuqe and his heirs.


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2017—Laubscher v Duplan


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2017

LAUBSCHER NO v DUPLAN AND OTHERS 2017 (2) SA 264 (CC)

Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J

30 November 2016

Appeal dismissed.

Permanent life partners with reciprocal duties of support without solemnization under the Civil Union Act; one of them died intestate.

Survivor held to be entitled to inherit.

Per MBHA AJ (Nkabinde ADCJ, Cameron J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Musi AJ and Zondo J concurring):


[Aspects determinative of status as intestate successor]

Aspects to be considered [19] In determining whether the respondent qualifies as the intestate successor to the deceased estate, the following aspects must be considered:

1. Was the reading-in remedy in Gory an interim measure? 2. The interplay between the Gory order and CUA. 3. Are the principles stemming from Volks applicable to this matter?

[20] I must at this stage make mention of the judgment by my colleague, Froneman J (second judgment), which raises challenging questions in relation to the reach of Gory and the effect of Volks. It is commonplace for cases similar to this one to give rise to viable interpretative differences. However, enticing as the second judgment’s interpretation may be, I take a different route.

[Gory as an interim measure]

The reading-in remedy in Gory as an ‘interim’ measure [21] It is clear that in exercising its powers under s 172 of the Constitution, this court found that s 1(1) of ISA was invalid, but sought



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to cure its invalidity by virtue of a ‘reading-in’ order. To this effect, this court stated:

Any change in the law pursuant to Fourie will not necessarily amend those statutes into which words have already been read by this court so as to give effect to the constitutional rights of gay and lesbian people to equality and dignity. In the absence of legislation amending the relevant statutes, the effect on these statutes of decisions of this court…will not change.… In the interim, there would seem to be no valid reason for treating s 1(1) of [ISA] differently from legislation previously dealt with by this court by, inter alia, utilizing the remedy of reading-in where it has found that such legislation unfairly discriminates against permanent same-sex life partners by not including them in the ambit of its application.

[22] The applicant relied on this paragraph in Gory to contend that the reading-in order was merely an interim measure that fell away once CUA had been enacted. I do not agree. A reading of Gory reveals that the court was alive to the fact that legislation allowing same-sex couples to enter into a civil union with the same consequences as a marriage was soon to be enacted. Thus the court reasoned that ‘there would [then] appear to be no good reason for distinguishing between unmarried heterosexual couples and unmarried same-sex couples in respect of intestate succession’.

[23] The court thus acknowledged the imminent legislation that would be enacted subsequent to Fourie, but nevertheless employed the remedy of reading-in to cure the constitutional invalidity of s 1(1) in the same way in which reading-in has been adopted to cure defects in other statutory provisions. This was based on the premise that the envisaged legislation would not necessarily amend s 1(1) of ISA, as amended by the Gory order.

[24] This court in Gory made it clear that its reading-in order was of indefinite duration albeit subject to amendment or repeal by Parliament. To this effect, it stated that ‘[i]n the absence of legislation amending the relevant statutes, the effect on these statutes of decisions of this court…will not change’. Clearly, the court did not curtail the life of the order in any way. The meaning of ‘interim’, according to Black’s Law Dictionary, is ‘[i]n the meantime; meanwhile; temporary; between’. There is little to support the notion that ‘interim’ means that the period should be shorter rather than longer. The fact that Parliament has not specifically amended s 1(1) of ISA in over 10 years does not affect the nature of the order. The Gory order remains an interim one and is operative from 27 April 1994 until such time as the legislature chooses to specifically amend it.



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[Gory and the Civil Union Act]

The interplay between the Gory order and CUA [25] There is a twofold approach that must be adopted in considering the interplay between the Gory order and CUA. In the first instance, a contextual approach requires an assessment of whether the enactment of CUA addressed the mischief that the reading-in in the Gory order sought to address. In the second instance, the interpretative approach prescribes an interpretation of s 1(1) of ISA (as amended by the Gory order) and whether it has been specifically amended by CUA. A discussion on both approaches follows.

The contextual approach: addressing the mischief [26] The contextual approach requires that we interrogate Gory so as to assess whether the mischief, which the Gory order sought to address, has since been resolved by the enactment of CUA. Although it may be tempting to circumvent the reasoning in Gory (since the litigants’ divergent stances suggest the reasoning may be open to multiple interpretations), I am of the view that the reasoning must be confronted to provide legal certainty.

[27] In Gory, this court stated:

As these partners are not legally entitled to marry, this amounts to discrimination on the listed ground of sexual orientation in terms of s 9(3) of the Constitution, which discrimination is in terms of s 9(5) presumed to be unfair unless the contrary is established.

[28] In para 29, on which both parties rely, this court expressed that—

[i]t is true that, should this court confirm para 2 of the High Court order, the position after 1 December 2006 will be that s 1(1) of the Act will apply to both heterosexual spouses and same-sex spouses who marry after that date, if Parliament either fails to respond before the Fourie deadline or if it does enact legislation permitting same-sex couples to enjoy the status and the benefits coupled with responsibilities it accords to heterosexual couples. Unless specifically amended, s 1(1) will then also apply to permanent same-sex life partners who have undertaken reciprocal duties of support but who do not marry under any new dispensation. Depending on the nature and content of the new statutory dispensation (if any), there is the possibility that unmarried heterosexual couples will continue to be excluded from the ambit of s 1(1) of the Act. As was argued by the Starke sisters, the rationale in previous court decisions for using reading-in to extend the ambit of statutory provisions applicable to spouses/married couples so as to include permanent same-sex life partners was that same-sex couples are unable legally to marry and hence to bring themselves



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within the ambit of the relevant statutory provision. Once this impediment is removed, then there would appear to be no good reason for distinguishing between unmarried heterosexual couples and unmarried same-sex couples in respect of intestate succession.

[Emphasis added.]

[29] This paragraph is arguably the main source of the disquiet between the parties. In the first part, the court indicates that if Parliament fails to respond to the Fourie deadline or if it enacts legislation that allows permanent same-sex partners to enjoy the status and benefits of opposite-sex couples (the latter being what the enactment of CUA did), then the section will still apply to permanent same-sex partners who have undertaken reciprocal duties of support but who do not ‘marry’ under the new dispensation. Since the legislation passed by Parliament (CUA) fell within the second condition set by this court, an argument can be made that a specific amendment of s 1(1) of ISA by Parliament is still required to remove the reading-in. In my view, the general amendment brought about by s 13(2)(b) of CUA did not achieve this goal.

[30] In the latter part of the same paragraph, the court then expressed an obiter view in light of the submissions of the Starke sisters, namely that if the impediment were to be removed, then there would be no good reason for distinguishing between unmarried opposite-sex couples and unmarried same-sex couples in respect of intestate succession. However this does not necessarily justify the applicant’s position that the enactment of CUA cured the mischief behind the reading-in in the Gory order as: (i) this view was expressed by this court obiter and therefore was not binding; and (ii) to the extent that s 13(2)(b) of CUA amended the relevant provisions of ISA, the amendment was indirect at best.

[31] I agree that an inequality may exist between opposite-sex permanent partners and their same-sex counterparts by virtue of the Gory order. The question is whether same-sex permanent partners ought to be deprived of the Gory benefit or whether the benefit should be extended to include opposite-sex permanent partners. The respondent refers to this process as ‘equalizing up’ versus ‘equalizing down’ and contends that it is a task perhaps best left to Parliament. In my view, the legislature is competent to adopt either a generous or a more restrictive approach to its recognition of permanent relationships, which it has done in the past. The legislative developments pursuant to Satchwell are instructive. In that case, this court declared the omission of the words ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’ from ss 8 and 9 of the Judges’ Remuneration and Conditions of Employment Act, to be inconsistent with the Constitution.



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[32] Although this court had specifically ordered that the benefit be extended to permanent same-sex partners, the legislature, within its rightful discretion, widened the ambit of protection to include both same-sex and opposite-sex unmarried partners. The result is an apt example of the legislature ‘equalizing up’ while giving effect to the rights prescribed by this court’s order. In my view, the court in Gory had clearly foreseen the enactment of CUA and had envisioned that same-sex permanent partners would continue to be protected despite not concluding a ‘marriage’ (or union as it turned out to be), under the new dispensation. Any indication to the contrary is best left to Parliament to decipher.

[33] In terms of s 13(2)(b) of CUA, a partner who registers a union in terms of this Act is deemed to be a ‘spouse’ for purposes of all law other than legislation expressly dealing with civil and customary marriages. CUA’s impact on the extended definition of ‘spouse’ is that registered civil union partners are protected by s 1(1) of ISA. However, the Gory order contemplated the inclusion of all permanent same-sex partners within the ambit of s 1(1) of ISA. Accordingly, CUA gave birth to an additional category of beneficiaries (those permanent same-sex partners who register their union). I am therefore minded to follow the interpretation that registered civil union partners are protected in their own right by CUA—whereas same-sex permanent partners who have undertaken reciprocal duties of support but have not registered under CUA, enjoy protection through the Gory order. A same-sex partner’s option to conclude a civil union or to remain in a permanent same-sex life partnership (and qualify as an intestate beneficiary in terms of s 1(1) of ISA either way) may be perceived as offering double protection to same-sex permanent partners.

[34] It needs to be emphasized that when Gory was handed down, the court was well aware of the deadline imposed as a result of the matter of Fourie which would result in the protection of same-sex partners who register their unions, whether or not legislation was enacted. For this reason, several paragraphs within its judgment address the operation of its order notwithstanding the introduction of a new regime that gives same-sex permanent partners the right to ‘marry’.

[35] Despite the applicant’s contentions to the contrary, my view is that a contextual or purposive approach would be more appropriate in this case. It will allow us to afford as much protection as we can to permanent same-sex partners who choose not to ‘marry’ on the strength of Gory, read together with similar equality cases and legislation. This will also allow us to defer to the legislature as to whether the correct approach is to ‘equalize up’ or ‘equalize down’.



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[36] The applicant, relying on the cessante ratione legis cessat ipsa lex maxim, contended that s 13 of CUA was intended to cure the constitutional defects brought about by the limited definition of ‘spouse’ under s 1(1) of ISA. The maxim, as already explained, is a tool of statutory interpretation and suggests that once the reason for the law ceases, the law itself ceases too. According to the applicant, because CUA enables same-sex permanent partners to ‘marry’, there is no longer a reason for the Gory order to exist. Without deciding whether this tool of statutory interpretation is appropriate in cases of constitutional interpretation, it does not advance the applicant’s case. A proper reading of Gory makes clear that the order sought to remedy the fact that same-sex permanent partners could not inherit from an intestate estate under s 1(1) of ISA. Whereas in Fourie, the mischief underlying the order was that same-sex permanent partners could not ‘marry’. I am accordingly of the view that the reason for Gory did not fall away with the enactment of CUA.

[Intestate Succession Act]

[Section 1(1) as amended by Gory]

[Interpretative approach]

The interpretative approach: s 1(1) of ISA [37] An alternative approach that may be adopted is a purely interpretative approach in terms of which this court is required to interpret s 1(1) of ISA in order to assess whether or not the respondent is entitled to inherit as the intestate heir of the deceased estate. Section 1(1) of ISA, as amended by the Gory reading-in, now reads as follows: If after the commencement of this Act a person (hereinafter referred to as the

deceased) dies intestate, either wholly or in part, and— (a) is survived by a spouse [or partner in a permanent same-sex life partnership in

which the partners have undertaken reciprocal duties of support], but not by a descendant, such spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support] shall inherit the intestate estate;

(b) is survived by a descendant, but not by a spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support], such descendant shall inherit the intestate estate;

(c) is survived by a spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support] as well as a descendant—

(i) such spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support] shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time



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by the Minister of Justice by notice in the Gazette, whichever is the greater; and

(ii) such descendant shall inherit the residue (if any) of the intestate estate; (d) is not survived by a spouse [or partner in a permanent same-sex life

partnership in which the partners have undertaken reciprocal duties of support] or descendant, but is survived—

(i) by both his parents, his parents shall inherit the intestate estate in equal shares; or

(ii) by one of his parents, the surviving parent shall inherit one half of the intestate estate and the descendants of the deceased parent the other half, and if there are no such descendants who have survived the deceased, the surviving parent shall inherit the intestate estate; or

(e) is not survived by a spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support] or descendant or parent, but is survived—

(i) by— (aa) descendants of his deceased mother who are related to the

deceased through her only, as well as by descendants of his deceased father who are related to the deceased through him only; or

(bb) descendants of his deceased parents who are related to the deceased through both such parents; or

(cc) any of the descendants mentioned in subparagraph (aa), as well as by any of the descendants mentioned in subparagraph (bb),

the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased mother shall inherit one half of the estate and the descendants related to the deceased through the deceased father shall inherit the other half of the estate; or

(ii) only by descendants of one of the deceased parents of the deceased who are related to the deceased through such parent alone, such descendants shall inherit the intestate estate;

(f) is not survived by a spouse [or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support], descendant, parent, or a descendant of a parent, the other blood relation or blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.

[Has Civil Union Act amended the Intestate Succession Act?]

[38] The question that arises is whether CUA has specifically amended ISA. It bears repeating that Gory stated that ‘[u]nless specifically amended, s 1(1) will then also apply to permanent same-sex partners who have undertaken reciprocal duties of support but who do not “marry” under any new dispensation’ [emphasis added].

[39] Based on the presumption that the legislature does not intend to alter existing law more than necessary, this court in Joseph cautioned against inferring that the law has been impliedly repealed. The court pointed out that the common-law test is that implied repeal can be



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present only where the laws are irreconcilable. The applicant was unable to demonstrate how the position in terms of CUA and the position as a result of the Gory order resulted in an irreconcilable conflict. Furthermore, considering that CUA was enacted a week after the Gory order, it is highly unlikely, if not impossible, that the legislature considered the effect of the Gory order and that the enactment of CUA repealed it.

[40] In Gory, the court emphasized that its proposed reading-in would not unnecessarily encroach on the separation of powers and it was strengthened by restating the dictum of this court in National Coalition:

It should also be borne in mind that whether the remedy a Court grants is one striking down, wholly or in part; or reading into or extending the text, its choice is not final. Legislatures are able, within constitutional limits, to amend the remedy, whether by re-enacting equal benefits, further extending benefits, reducing them, amending them, fine-tuning them or abolishing them. Thus they can exercise final control over the nature and extent of the benefits.

The amendment of the word ‘spouse’ in ISA was nothing more than a ‘cut and paste’ exercise. The legislature did not, in CUA, specifically grapple with the issue of whether it was prudent to limit the right that was extended to same-sex partners as a consequence of the Gory order. Therefore I conclude that, to date, the legislature never intended to and has not interfered with ISA. Accordingly, it is for the legislature to specifically amend the reading-in prescribed by the Gory order.

[41] The second judgment cautions against going beyond remedying the constitutional wrong—out of deference to the separation-of-powers principle. It points out that this deference should also be observed when interpreting reading-in orders. While I hold no issue with this proposition, this court’s reasoning in para 29 of Gory cannot be so easily avoided. The court said no more than what it deemed was necessary to vindicate the equality rights of same-sex permanent partners. Without entering into a protracted excursus on the distinction between ratio and obiter statements, this court’s awareness of the imminent Fourie deadline suggests that the paragraph’s inclusion was not only sensible but also necessary.

[42] Since I find that para 29 of Gory cannot be avoided, I stand by the interpretation that the enactment of CUA did not specifically amend s 1(1) of ISA. The implication that the reading-in order has survived for almost over a decade is not contentious and certainly not tantamount to interpretative legislating.



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[Volks case]

Volks [43] The applicant contended that this court’s decision in Volks is analogous to the facts before us because both cases address: (i) the right to claim against the deceased estate; and (ii) whether rights conferred on married couples can also be conferred on unmarried couples.

[44] The central question was whether the protection the Maintenance of Surviving Spouses Act afforded to a ‘survivor’ could be extended to a surviving permanent life partner. The deceased had left a will in terms of which part of his estate was bequeathed to his permanent life partner, Mrs Robinson, with the remainder of the estate being bequeathed to, among others, his children. The majority drew strongly on the fact that Mrs Robinson’s right to claim maintenance would unduly limit freedom of testation. Particularly because it would, by operation of law, create a posthumous duty to maintain cohabitants when no such right existed during the lifetime of the deceased. The conclusion of the court was that—

it is not unfair to make a distinction between survivors of a marriage on the one hand, and survivors of a heterosexual cohabitation relationship on the other. In the context of the provision for maintenance of the survivor of a marriage by the estate of the deceased, it is entirely appropriate not to impose a duty upon the estate where none arose by operation of law during the lifetime of the deceased. Such an imposition would be incongruous, unfair, irrational and untenable.

[45] The appeal was upheld and this court did not confirm the order of the High Court which declared that s 1 of the Maintenance of the Surviving Spouses Act was inconsistent with the Constitution.

[46] In my view, Volks concerned the right of a permanent opposite-sex partner to claim maintenance from a deceased estate in terms of the Maintenance of Surviving Spouses Act—a benefit that is given effect to before succession takes place. However, I am not convinced that Volks is drawn directly into question based on the facts and the law in this case. Volks is distinguishable for the following reasons—

(i) Volks concerned a surviving permanent life partner’s right to benefit from maintenance under s 2(1) of the Maintenance of Surviving Spouses Act, whilst the present matter before this court concerns a right to benefit in terms of s 1(1) of ISA;

(ii) there was a will in Volks, whereas the deceased in this case died intestate; and

(iii) the Gory order expressly provides for the protection of same-sex



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permanent partners’ intestate succession rights. Furthermore, this case is not concerned with an equality challenge, but is based on the interpretation of the Gory order in light of the subsequent enactment of CUA.

[47] As can be seen, Mrs Robinson had sought to claim maintenance over and above the benefit that she was to receive in terms of the will. Her claim for maintenance would proportionally reduce the size of the beneficiaries’ share and frustrate the testator’s wishes. The majority’s reluctance to grant a right for a permanent partner to claim maintenance against a deceased estate was brought on by the fact that the right to claim maintenance would never have arisen by operation of law during the lifetime of the deceased. To this effect, Skweyiya J stated:

[I]t is not the under-inclusiveness of s 2(1) which is the cause of their misery. The plight of a woman who is the survivor in a cohabitation relationship is the result of the absence of any law that places rights and obligations on people who are partners within relationships of this kind during their lifetimes.

[48] Clearly, the case before us is not a comparable situation. Conceptually, the law of intestate succession applies only where a deceased has not taken steps to dispose of her property in terms of a will. Importantly, the gears of succession only begin to turn upon the death of one of the parties. One cannot place intestate succession rights of permanent partners on the same footing as maintenance claims against a deceased estate, because there is never an obligation to dispose of one’s estate during her lifetime. In contrast, the existence of a maintenance claim in terms of the Maintenance of Surviving Spouses Act does not depend on the existence or absence of a will. Generally, maintenance exists in the course of life and, by virtue of the Maintenance of Surviving Spouses Act, passes on to the deceased estate as well. The difference is not arbitrary: maintenance and intestate succession are different systems, meant to address different needs and they each elicit different considerations. Unlike Volks, there can be no impinging on the freedom of testation in this case because there is no testator.

[49] In Paixao, the SCA expressed the view that although the court in Volks held that no reciprocal duty of support arises by operation of law in the case of unmarried cohabitants, such duty is not precluded from being fixed by agreement. The SCA also distinguished the rationale behind the Maintenance of Surviving Spouses Act vis-à-vis that of the dependant’s action at common law, which the SCA stated was sui generis (of its own class). The SCA found that s 2(1) of the Maintenance of Surviving Spouses Act addresses the question of whether a spousal



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benefit arising from a legally recognized marriage should be extended to a surviving partner of a life partnership. On the other hand, the object of the dependant’s action remedy is to place the dependants of the deceased to whom the deceased owed a legally enforceable duty to support or maintain in the same position as they would have been, as regards support and maintenance, had the deceased not been unlawfully killed by a wrongdoer. On this basis, the SCA in Paixao distinguished Volks and the dependant’s action was extended to the permanent life partner in that case.

[50] Volks is thus distinguishable not just from the facts, but from the legal mechanism being used. Volks continues to apply with full precedential force within the context of maintenance of surviving spouses. To say, as the applicant suggested, that we are called upon to decide whether to apply or to roll back on the Volks decision, is to mischaracterize the issue.

[51] Moreover, and as discussed above, the Gory order effectively legislated an amendment of s 1(1) of ISA. Despite having had an opportunity for over 10 years, the legislature has not specifically amended the effect of the Gory order. Hence the position stands—alongside and notwithstanding Volks. The applicant’s submission that the principle of choice to ‘marry’ (or conclude a civil union as it were) is equally applicable to this case, is unpersuasive.

[52] The applicant also contended that continuing to enforce Gory would have the effect of unfairly discriminating against opposite-sex permanent partners—since they are not entitled to the same benefit. This contention is neither here nor there. To wit, there has never been a constitutional challenge for the right of opposite-sex permanent partners to be included within the ambit of s 1(1) of ISA. An actual cause of action and a plea of unfair discrimination are thus required before crossing this bridge.

[53] The second judgment suggests that the approach followed above ‘avoids [the] confrontation’ of Volks by: (i) ‘interpreting the Gory order broadly’; and (ii) ‘distinguishing Volks on a number of grounds’. However, this court should be reluctant to revisit principles that are not directly within the purview of the facts of a case. The reasons put forward in the second judgment as to why the judgment of Volks cannot stand are stimulating and persuasive. Nevertheless, for the reasons mentioned above, this is not directly within the purview of the facts of this case. To overturn Volks on these facts would be undesirable. There may be an appropriate time when this court is called upon to revisit the principles in Volks. Now is not that time.



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[54] The second judgment concludes that—

[a]part from those who [choose] to accept [CUA’s] benefits by marriage formalisation, there [is] a residual category of unmarried same-sex and heterosexual partners with reciprocal support duties that are not excluded on a literal reading of the section. They remain entitled to inherit….

I do not agree. Save for the Marriage Act and the Recognition of Customary Marriages Act, s 13(2)(b) of CUA extends the definition of the words ‘husband, wife or spouse in any other law, including the common law’ to include a civil union partner. Needless to say, there are statutes in which permanent life partners who have undertaken a reciprocal duty of care are considered, for all intents and purposes, as being husbands, wives or spouses. However, it does not follow that where Volks is overturned (which, as I have stated, is not appropriate on these facts) such partners are now considered as ‘husband, wife or spouse’ on a literal reading of CUA—and remain entitled to inherit.

[Conclusion]

Conclusion [55] For the reasons set out above, I am of the view that the enactment of CUA, particularly s 13(2)(b), did not specifically amend s 1(1) of ISA as was required by Gory. Civil unions concluded under CUA constitute a new category of beneficiary for purposes of ISA and are distinguishable from same-sex permanent life partnerships. As a result, same-sex permanent partners will continue to enjoy intestate succession rights under s 1(1) of ISA, as per the Gory order, until such time that the legislature specifically amends the section. It is not for this court to proscribe protections it previously extended when there is no clear legislative indication that the proscription is mandated. To do so would undermine the aspirations of the human rights culture that we seek to cultivate. Whether to provide ‘equality of the graveyard or the vineyard’ to permanent same-sex partners, is a matter best left to the competencies of the legislature.

….

Per FRONEMAN J (partially dissenting):

Introduction [58] I have had the privilege of reading the judgment by my colleague Mbha AJ (first judgment). I agree with the conclusion he reaches. The reasoning too, is temptingly persuasive. Regretfully though, not sufficiently so. We differ on (1) the reach of the order made by this



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court in Gory; and (2) the import of the majority judgment of this court in Volks.

.…

[Conclusion]

Conclusion [87] Unshackled from Volks, s 13(2)(b) of CUA must be interpreted in a manner that best conforms and least infringes the fundamental right to equality in the Bill of Rights. Apart from those who chose to accept its benefits by marriage formalization, there remains a residual category of unmarried same-sex and heterosexual partners with reciprocal support duties that are not excluded on a literal reading of the section. They remain entitled to inherit from the intestate estate. The respondent falls within that category. For that reason I support the order made in the first judgment.


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2014—Erasmus v Estate Late Booysen


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2014

ERASMUS NO v ESTATE LATE BOOYSEN 2014 (4) SA 1 (SCA)

Mthiyane DP, Petse JA, Willis JA, Saldulker JA and Legodi AJA

28 March 2014

Appeal allowed.

Will created fiduciary and first and second fideicommissaries; first fideicommissary predeceased fiduciary. Property held to go to second

fideicommissary.

Per WILLIS JA (unanimous):


[Difference between two wills]

[11] There is a difference between the will of the first testator, on the one hand, and that of the testatrix, on the other: the first testator stipulated that, upon the death of the deceased, the farm was to pass to the deceased’s children, whereas the will of the testatrix provides that, upon the death of the deceased, the portion of the farm was to pass to the grandchildren of the deceased. Nothing turns on this.

[Both wills provided for property to pass to children and from them to grandchildren]

[12] The high court correctly found that:

Die tersaaklike gedeelte van beide testamente is dat die plase by Barend Christiaan Booysen [the deceased] se dood sal gaan aan al sy kinders en dat by die kinders se dood die plase sal oorgaan na Barend Christiaan Booysen se kleinkinders.

This may be translated as follows:

The relevant portion of both wills is that the farms shall be inherited by all of the children of Barend Christiaan Booysen and that, upon the death of these children, the farms shall pass to Barend Christiaan Booysen’s grandchildren. [My translation.]

Jonique is, as has already been mentioned, one of the deceased’s grandchildren.



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[High Court’s approach]

[13] The high court relied strongly on the following passage in Jewish Colonial Trust Ltd v Estate Nathan:

In the ordinary form of fideicommissum, created by will where the fiduciary is a human being taking a beneficial interest and the fideicommissary is a human being, there is implied in the bequest to the fideicommissary a condition of survivorship (viz that his institution as heir is conditional on his surviving the fiduciary…).

[14] Referring to Jonique, the high court found that:

Op die feite voor my het geen vestiging uit die fideicommissiêre beskikking plaasgevind nie omdat die fideicommissarius voor die fiduciarius gesterf het. Die testamente is duidelik en bepaal dat vestiging sou plaasvind by die dood van die fiduciarius. Tot daardie gebeurtenis plaasgevind het, het die dominium gevestig in die fiduciarius. By die nie-vervulling van die fideicommissiêre voorwaarde, word die ontbindende voorwaarde, waaronder die fideicommissarius se reg gebuk gaan, vervul en vind dienooreenkomstige uitwissing van die ius in personam plaas….

This may be translated as follows:

On the facts before me, no vesting of the fideicommissary dispensation took place because the fideicommissary died before the fiduciary. The wills are clear and stipulate that vesting takes place on the death of the fiduciary. Until that event occurs, ownership vested in the fiduciary. Upon non-fulfilment of the fideicommissary condition, the resolutive condition, whereby the fideicommissary’s right had been burdened, is fulfilled and the corresponding termination of the personal right occurs. [My translation.]

[15] The high court dismissed the appellant’s counter-application and ordered that the rule nisi issued on 6 July 2012, as amended on 12 August 2012, be confirmed. In other words, the high court issued an order declaring that:

(i) The fideicommissum established in terms of the wills of the late Johannes Arnoldus Jacobus Booysen [Jonique’s great-grandfather] dated 20 March 1969, and the late Jacomina Hendrina Booysen [Jonique’s great-great-grandmother] dated 26 March 1969, terminated upon the death of Josua Booysen [Jonique’s father] on 26 August 2001; and

(ii) Jonique was not entitled to inherit in terms of the aforementioned wills of the late Johannes Arnoldus Jacobus Booysen and the late



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Jacomina Hendrina Booysen.

The high court ordered that the costs of the application and counter-application, as well as the costs of Jonique’s curator ad litem, be borne by the estate of the deceased.

[Immovable Property (Removal or Modification of Restrictions) Act]

[16] In terms of s 6(1) of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965, any fideicommissum created in respect of immovable property after the commencement of that Act is limited to two successive fideicommissaries. Josua’s father was the fiduciary of Grootpan. Josua, having predeceased his father, did not become a fideicommissary thereof. Accordingly, if Jonique otherwise qualifies, she would be the first fideicommissary in terms of the wills of both the first and the second testator.

[17] Mr Muller, who appeared for the respondent, fairly and correctly conceded that the respective wills had obviously been drawn with this Act in mind and that the clear intention of the testators had been to pass down the farm Grootpan to as many generations as the Act would allow. That, in itself, favours Jonique.

[Words and phrases: fideicommissum multiplex]

[18] Where a fideicommissum provides for the fideicommissary property to be passed on to successive fideicommissaries, as in this case, the fideicommissum is termed a fideicommissum multiplex. This contrasts with the situation where the fideicommissum provides for the property to be passed on once only, which is known as a fideicommissum unicum (or simplex).

[19] The high court lost sight of the following qualification to that which has been quoted earlier from Jewish Colonial Trust, viz:

In the ordinary form of fideicommissum, created by will where the fiduciary is a human being taking a beneficial interest and the fideicommissary is a human being, there is implied in the bequest to the fideicommissary a condition of survivorship (viz that his institution as heir is conditional on his surviving the fiduciary…). But this implication does not exist in every form of fideicommissum….’ [My emphasis.]

[20] In Corbett et al’s The Law of Succession in South Africa it is said that a fideicommissum multiplex constitutes an exception to the general rule stated in the [aforesaid] passage in Jewish Colonial Trust and,



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referring with approval to Ex parte Swanepoel, the learned authors say that where a fideicommissum is multiplex, the death of the fideicommissary prior to vesting does not result in the termination of the fideicommissum but brings about the acceleration of the interest of the substitute. Effect has to be given to the intention of a testator expressed by creating a fideicommissum multiplex.

[21] Johannes Voet, in his Commentarius Ad Pandectas, says:

Ac proinde cum in Hollandia unius fratris filii et alterius fratris nepotes simul ad intestato ad patrui defuncti hereditatem non in capita, sed in stirpes veniant, etiam voluntas haec testatoris eam recepit interpretationem, ut in stirpes potius, quam in capita, hereditas fratrum liberis ac nepotibus delata intelligatur. [My emphasis.]

[22] Sir Percival Gane’s translation of this passage by Voet is the following:

Since therefore in Holland the sons of one brother and the grandsons of another brother come together in intestacy into the inheritance from a deceased uncle not by heads, but by stocks, this wish of the testator has also received the interpretation that the inheritance is understood to have been conferred on the children and grandchildren of brothers by stocks rather than by heads.

Voet also records that, in a context such as this, where a clear intention to the contrary is absent in a will, it is presumed that the direction is that the succession of descendants follows the order upon intestacy (ie per stirpes rather than per capita). The relevant portions of the original text read as follows: ‘in dubio…potius successive secundum ordinem dilectionis et successionis ab intestato.’ (My emphasis.)

[The per stirpes presumption]

[23] The principle of representation in our law of succession entails that, where an ancestor leaves descendants, a presumption arises that the descendants should inherit per stirpes (each stem of the family taking the same share). This principle has the natural consequence that, in our law, in circumstances where a grandchild’s parents predeceased that grandchild’s grandparents, the grandchild will ordinarily inherit from his or her grandparents. A grandchild is not disqualified from inheritance merely as a result of the fact that one or both of the grandchild’s parents predeceased his or her grandparents.

[The presumption against disinherison]



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[24] The strength of Jonique’s claim to inheritance is compounded by the presumption in our law against a testator having the intention to disinherit descendants.

[Intention of testators]

[25] The clear intention of both the first and second testators was that, without distinction among them, the grandchildren of the deceased should inherit under the respective fideicommissa. As such a grandchild Jonique was entitled to inherit thereunder. She inherits per stirpes. The appeal must succeed.


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2013—In re BOE Trust Ltd


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2013

IN RE BOE TRUST LTD AND OTHERS NNO 2013 (3) SA 236 (SCA)

Cloete JA, Malan JA, Shogwe JA, Pillay JA and Erasmus AJA

28 September 2012

Appeal dismissed.

Will provided for charitable testamentary trust, with alternative beneficiaries should the primary appointment prove impossible. Upon failure of primary appointment, alternative appointment held to apply.

Per ERASMUS AJA (unanimous):


[Application of Emma Smith]

[21] I now turn to the main issue in the appeal. Should this court uphold the appeal and allow a deletion of a word in Mrs De Villiers’ last will and testament, based on the principles enunciated in Emma Smith? Can Emma Smith be distinguished from this case?

[22] In Emma Smith this court held that the Bill of Rights applies to all law (which must by now, and properly, from the advent of the Constitution, be seen as trite), including the law relating to charitable trusts. It further held that in the public sphere racially discriminatory dispositions will not pass constitutional muster. It dismissed the appeal and allowed the order directing the deletion of the racially discriminatory provisions to stand.

[23] Emma Smith also dealt with a testamentary trust which created an educational fund to be administered by a university, restricting beneficiaries to white bursars. The will considered had been executed in 1938. The exclusive nature of the will, which went further than merely identifying persons of colour, caused less funds than were available for the purpose, to be paid out. The court identified the question it had to answer as ‘whether this bequest, to be administered by the university, can be allowed to stand in its racially exclusive form’.

[24] It is immediately clear that the facts dealt with in Emma Smith are distinguishable from the facts of the instant case. The testamentary trust



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dealt with there provided for the single purpose that the funds put in trust ‘shall be dedicated in perpetuity for the promotion and encouragement of education’. No alternatives were stated, should the terms become impossible to carry out. Indeed, the trust functioned for decades prior to being challenged in the new constitutional dispensation.

[25] In the instant case no bursaries were ever paid; they could not be, because of the universities’ stance. The giving of the bursaries as Mrs De Villiers had intended had become impossible as a result of the universities’ stance. Must the alternative provided in the will be given effect to? Does Mrs De Villiers’ right to dispose of her assets as she saw fit, whether we agree with her exercise of that right or not, require a court to see at least whether there is a way in which to interpret her will, so that it does not offend public policy?

[Freedom of testation]

[26] Section 25(1) of the Constitution provides that no one may be deprived of property, except where the deprivation is done in terms of a law of general application. What is more, it entrenches the principle that no law may permit the arbitrary deprivation of property. The view that s 25 protects a person’s right to dispose of their assets as they wish, upon their death, was at least accepted in Minister of Education v Syfrets, although no decision to this effect was made. This view is, to my mind, well held. For if the contrary were to obtain, a person’s death would mean that the courts, and the state, would be able to infringe a person’s property rights after he or she has passed away, unbounded by the strictures which obtain while that person is still alive. It would allow the state, in a way, to benefit from someone’s death. Francois du Toit, after having done extensive research on freedom of testation in South Africa and in other jurisdictions, states the position thus:

Freedom of testation is considered one of the founding principles of the South African law of testate succession: a South African testator enjoys the freedom to dispose of the assets which form part of his or her estate upon death in any manner (s)he deems fit. This principle is supplemented by a second important principle, namely that South African courts are obliged to give effect to the clear intention of a testator as it appears from the testator’s will. Freedom of testation is further enhanced by the fact that private ownership and the concomitant right of an owner to dispose of the property owned (the ius disponendi) constitute basic tenets of the South African law of property. An owner’s power of disposition includes disposal upon death by any of the means recognized by the law, including a last will. The acknowledgement of private ownership and the power of disposition of an owner therefore serve as a sound foundation for the recognition of private succession as well as freedom of testation in South



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African law.

[Footnotes omitted.]

[27] Indeed, not to give due recognition to freedom of testation will, to my mind, also fly in the face of the founding constitutional principle of human dignity. The right to dignity allows the living, and the dying, the peace of mind of knowing that their last wishes would be respected after they have passed away.

[28] But freedom of testation, and the rights underlying it, are not absolute. The balance to be struck between freedom of testation and its limitations was formulated by Innes ACJ as follows:

Now the golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these wishes are ascertained, the court is bound to give effect to them, unless we are prevented by some rule of law from doing so.

[Testator’s wishes]

[Words and phrases: ‘impossible’]

[29] What is required then, firstly, and prior to any enquiry as to whether some rule of law prevents us from giving effect to those wishes, is to first ascertain what the testatrix’s wishes were. Indeed, the enshrined rights to dignity and property demand it.

[30] The key to determining what the testatrix’s wishes were in the instant case is, what meaning should be attributed to the word ‘impossibility’? To ascertain that meaning the court may have regard to evidence outside of the wording of the will ‘to fit the four corners of the will to the ground’. The testatrix was informed that it might be impossible to give effect to the educational trust she had envisaged as a result of its effect being unlawful. It is with this impossibility in mind that she included the word ‘impossible’ and stipulated an alternative.

[31] The appellants, however, insist that this should not be the case. They argue that a distinction is to be drawn between different types of impossibility. And that what Mrs De Villiers actually meant was that her alternative arrangement would only be triggered upon, in the words of appellants’ counsel, ‘objective impossibility’. This would be the kind of impossibility, so the argument goes, where no South African university would ever offer the MSc in organic chemistry. I do not think this argument is correct. As I have said, the primary function of a court, in interpreting a will, is to ascertain the intention of the testator. To my



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mind, it is clear that the testatrix intended that, quite simply, should it prove impossible, for whatever reason, to give effect to the provisions of the educational bequest, the money should go to the charitable organizations. The testatrix clearly set out a general scheme in which she provided for foreseen eventualities. In my view, therefore, the fact, that the universities would not participate as a result of the racial exclusiveness of the bequest, is an impossibility in respect of the bursary bequest. The result must be that effect has to be given to the wishes of the testatrix so that the bequest to the named charitable organizations is enforced.

2013—Jakins v Baxter


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JAKINS V BAXTER (178/13) [2013] ZASCA 190

Lewis, Cachalia, Leach, Wallis JJA and Meyer AJA

29 November 2013

Appeal allowed.

Antenuptial contract compensated wife for benefits forgone under previous marriage with benefits ‘arising’ from deceased’s membership

of provident fund. In context of ANC, relevant clause was meant to make financial provision for the wife upon the death of the deceased, and life

policy as a benefit falling within ambit of the clause.

[Disputed clause]

All benefits which will accrue as at the date of his death arising from his membership of his Tongaat-Hulett Pension Fund.

Per CACHALIA AJ (unanimous)

[Did insurance proceeds accrue to widow or estate?]

[1] This appeal concerns a disputed benefit of an Old Mutual life policy. The proceeds of the policy, amounting to R799 967,21, became payable upon the death of Mr Norman Emslie Jakins. Old Mutual paid the amount to his estate. His widow, Joan Shannon Jakins (née Dell), the appellant in this appeal, then sought declaratory relief to the effect that she, and not the estate, was entitled to receive this benefit. She also asked for other consequential relief. The executors of the deceased’s estate, who are the respondents in this appeal, opposed the relief claimed on the ground that the benefit fell into the estate. The court of first instance found in her favour, but a full court of the Eastern Cape reversed the high court’s order. The appellant now comes on further appeal with leave of this court.

[Disputed clause in ANC]

[2] The appellant’s claimed entitlement to the relief is founded upon a clause in an antenuptial contract (ANC) concluded before her marriage to Mr Jakins in October 1995. The clause was contained in an undertaking to make over, cede, transfer, and assign in favour of the appellant:

All benefits which will accrue as at the date of his death arising from his membership of his Tongaat-Hulett Pension Fund.



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[3] The appellant contends that the meaning and effect of the clause is that the benefit from the life policy accrued to her because its source was the proceeds of his pension fund, albeit that this occurred after his retirement when he was no longer a member of the fund. The respondents dispute her interpretation of the clause. In their view the clause allowed her to claim the proceeds of the pension fund, which would have accrued upon the deceased’s death, only if he was a member of the fund at the time. So, they contend, because he had retired and was no longer a member of the fund when he died, the benefit did not accrue to her.

[4] To better understand the dispute it is helpful to set out the context in which the ANC was concluded. The deceased was, at the time, an employee of Tongaat-Hulett and a member of its pension fund. The division in which he was employed was taken over by the Bokomo/Sasco Group. The Bokomo/Sasco Group and its pension fund were in turn taken over by Pioneer Foods. The respondents accept that notwithstanding the changes in the identity of the pension fund, it remained the same fund for the purposes of the clause.

[5] The appellant and the deceased were middle-aged when they concluded the ANC in anticipation of their marriage in 1995. She was 50 years of age and he 56. He was nearing retirement. The pension fund to which he belonged was governed by the Pension Funds Act 24 of 1956 (the Act). The rules of the fund allowed him to withdraw a third of his retirement benefits as a cash sum upon retirement and to buy a pension with the balance. Section 37C(bA) of the Act entitled him to exclude the benefit from forming part of the assets of his estate by designating a beneficiary—the appellant in this case—to receive the benefit upon his death, which is the effect of the disputed clause.

[6] Before their marriage the appellant had a usufruct in her favour over an amount of R1 198 312 left to her by her previously deceased husband. But the right to the use of this money would endure only if she remained unmarried. In her founding papers the appellant says that she and the Mr Jakins were mindful of this fact when they concluded the ANC, which conferred the benefit on her. Put simply they understood and intended the benefit to compensate her for her loss of the income from the usufruct in the event of his death.

[7] It is also significant that upon his retirement, and in line with the regulatory provisions referred to above, the deceased invested the sum of R799 967,21 from his pension fund in a ‘Capital Preservation Option’. Old Mutual in turn invested the sum in two annuities which were to provide the deceased with a monthly income of R7 879,98 and R1 677,29. From the latter amount a monthly sum of R1 276,74 was



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deducted to fund the life policy so that the capital amount of R799 967,21 was preserved. It is this amount—the exact sum that was transferred from his pension fund—that the appellant claims as a benefit that accrued as at the deceased’s death arising from his membership of his pension fund.1

[Words and phrases: ‘arising’]

[8] I now turn to the proper interpretation of the disputed clause. The respondents submit that the syntax and grammatical arrangement of the clause is that ‘benefits’ refers to what is payable from a pension fund; ‘accrue’ to that which comes into existence upon the death of Mr Jakins, and ‘arising’ to that coming into existence as a result of his membership of the pension fund at the time of his death. Thus interpreted, they contend, the language does not permit an interpretation that extends the meaning to include the proceeds of a life policy funded out of income received during his lifetime from the investment proceeds of his pension.

[9] Considered within the context in which the ANC was concluded—and the purpose of the benefit conferring provision to make financial provision for the appellant upon the death of the deceased—the respondents’ interpretation of the clause is not correct. On their interpretation the word ‘arising’ is superfluous. Without that word the clause would read:

All benefits which will accrue as at the date of his death from his membership of his…Pension Fund.

[10] Worded thus the benefit would have accrued from the deceased’s membership of the pension fund, which is how the respondents seek to interpret the disputed clause. But the inclusion of the word ‘arising’ means that the clause has to be read to mean that the benefit originates from the pension fund, and does not require the deceased to have been a member at the time of his death. If the clause is read in this way, which accords with the context within which the ANC was concluded, the life policy clearly originated from the pension fund because it was funded from the fund’s proceeds. It follows that the court of first instance was correct to treat the life policy as a benefit that fell within the ambit of the disputed clause, and the full court incorrect to hold the contrary.

[Outcome]

[11] In the result the appeal must succeed and the order of the full court must be set aside. The order of the court of first instance ought to have



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been confirmed, but amended so that it read sequentially and referred to the correct sum mentioned in fn 1.

2012—Raubenheimer v Raubenheimer


—133 —

2012

RAUBENHEIMER v RAUBENHEIMER AND OTHERS 2012 (5) SA 290 (SCA)

Mpati P, Nugent JA, Cachalia JA, Leach JA and Wallis JA

1 June 2012

Appeal allowed.

Testator bequeathed a usufruct without identifying the remainderman; omitted to attach a list of bequests to the will. Will interpreted and held

to be valid.

Per LEACH JA (unanimous):


[Untrained advisers—a never-ending source of amazement]

[1] It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. This is by no means a recent phenomenon. Some 60 years ago, in Ex parte Kock NO, a high court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die…to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions’. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case.

….

[Clauses 2 and 3 of the will]

[9] Crucial to the debate on both these issues are clauses 2 and 3 of the will which read as follows:

2. I bequeath my estate to my spouse, CHRISTEL RAUBENHEIMER [the appellant]. She shall have a usufruct over our residence in Pretoria until her



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death or remarriage. See the attached list of specific bequests.

3. In the event of my spouse dying before me or simultaneously with me or within 30 (thirty) days of me, the bequest to her will lapse and I bequeath my estate to my children. The inheritance of a child who dies before me shall devolve on his/her descendants by representation or, upon having no descendants, then on my remaining children or their descendants by representation.

[Intended to be a will?]

[10] Turning first to the debate in respect of whether the document is to be taken as the testator’s last will, under s 2(3) of the Wills Act a court asked to make an order must first be satisfied that the testator who drafted or executed the relevant document intended it to be his will. The respondents’ contention is that as the testator failed to attach the list of specific bequests referred to in clause 2, it was necessary to infer that he did not intend the document to be his will until such a list was attached. Consequently, so the respondents argued, as no list was ever attached, the document in the form it was signed was not intended by the testator to be his final will, and the appellant had thus failed to establish an essential requirement for the issue of an order under s 2(3).

[11] There is no merit in this argument. The testator had instructed Mr Hagen to draw a will for him and had thereafter held several discussions with him as to what he wanted to achieve in his will. It was pursuant to this that Mr Hagen drafted GR2 which the testator proceeded to sign after having read it and indicating that he was satisfied as to its provisions. The document was headed ‘testament’ and was signed by the testator, quite deliberately, on each of its three pages above the word ‘TESTATEUR’ (testator). Moreover he did so after Mr Hagen had told him that it needed to be witnessed to comply with the statutory formalities for wills. The only reason it was not properly witnessed was due to the testator’s hard-headedness in refusing to do the necessary before his business partner with whom he had fallen out and Hagen’s willingness to arrange to have two of his employees append their signatures as if they had witnessed the testator’s signature.

[12] From this it is clear that the testator knew that there was no list of specific bequests annexed to the will when he signed it. And although he stated that he would prepare one in due course, his failure subsequently to attach such a list to the document does not mean he did not intend it to be his will. All it means is that he did not subsequently vary the terms of the document. Whether this was due to a failure to take proper care of his affairs or a decision against making any such specific bequests is neither here nor there.



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[13] I accordingly have no difficulty in concluding that the testator intended GR2 to be his will at the time he signed it. Indeed I have no doubt that if he had been asked at any time thereafter whether he had a will, he would have replied in the affirmative, having GR2 in mind in doing so.

[Lack of specific bequests: rendered will void?]

[14] I turn to the second issue, namely, whether the provisions of clause 2 rendered the will void for vagueness. The respondents argued that the failure to attach the list of specific bequests to the will, taken together with the testator’s failure to identify the beneficiary upon whom the common home was to devolve (whom it was argued was clearly not the appellant), resulted in it being impossible to identify which of the testator’s assets he had intended the appellant to inherit as beneficiary of the remainder of his estate or to know upon whom the testator intended to bestow ownership of the common home.

[15] The first of these difficulties seems to me to be met by what I’ve already said, namely, that the failure to attach a list of specific bequests merely means that the testator for some reason did not make any such bequests. It is therefore not a factor which in any way renders vague the testator’s bequest of his estate to the appellant.

[Usufruct over home]

[16] The effect of the testator, after bequeathing his ‘estate’ (boedel) to the appellant, proceeding in his next breath to extend to her what he referred to as a ‘usufruct’ over the matrimonial home until her death or remarriage, without identifying the person in whom ownership of the home should vest, is more complex. The appellant argued in the court a quo that the clause should be interpreted as providing for a bequest of the common home to the respondents, subject to her enjoying a usufruct until her death or remarriage. Indeed in her notice of appeal the appellant contended that the court a quo had erred in not construing the will in that way. However, in this court, represented by counsel who had not appeared for her in the high court, the appellant changed her stance to contend that the clause could not be so construed and that the failure to nominate a beneficiary in respect of the common home resulted in it falling into the estate bequeathed to her, so that it devolved upon her free of any restrictions as to her ownership.

[17] At the outset, it is necessary to consider whether the testator in fact intended to create a usufruct over the common home. The word ‘usufruct’ is often loosely used, and its use in a will does not necessarily mean that a testator appreciated its legal significance. As is pointed out



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by the learned authors of Corbett et al The Law of Succession in South Africa 2 ed at 369–70, with reference to numerous authorities:

Where the testator has clearly conferred only a life interest upon a beneficiary, the problem may arise as to whether a usufructuary or a fiduciary interest was intended. This can be a matter of some difficulty. The mere use by the testator of the terms usufruct or usufructuary is not conclusive: there are many instances where a life interest described in the will as being a usufruct has been held to be in truth fiduciary in nature. Conversely, the use of the terms fideicommissum or ‘fiduciary’ does not necessarily provide the final answer: in spite of this the life interest may be construed as being merely usufructuary. While the terms usufruct (or usufructuary) or fideicommissum (or fiduciary), as the case may be, would normally indicate prima facie the type of life interest intended by the testator, this indication must yield to the intention to be gathered from the will as a whole. Testators sometimes use terms such as these without a full appreciation of their legal signification and here it is safer to have regard to the general scheme of the will than to the testator’s use of legal terminology.

These comments are all the more appropriate where, as here, the will was drafted by a person not trained in the law. Bearing this in mind, and having regard to certain of the other provisions of the will, I turn to consider whether the testator in fact intended to create a usufruct over the common home.

[18] Importantly, in both clauses 2 and 3 of the will, the testator made a bequest of his ‘estate’ (boedel), the bequest in clause 3 being subject to that in clause 2 failing. The dominant clause is clearly the bequest of the testator’s estate, by which an heir is instituted. Consequently ‘its effect should not be modified nor its meaning strained’ unless a contrary intention is clearly indicated by other provisions in the will. There are no such contrary intentions in the present case. Indeed as there was no specific bequest of a ‘usufruct’ in clause 3 of the will, the bequest of the estate in that clause clearly includes the matrimonial home, and there is no reason to interpret the ‘estate’ bequeathed in clause 2 any differently. As such a bequest is one of ownership of the property, it is irreconcilable with the appellant acquiring no more that a usufructuary interest over the matrimonial home. Consequently whatever may have been intended by the testator providing for a ‘usufruct’ over the matrimonial home, it was not a usufruct in its true legal sense.

[Will created fideicommissum]

[19] This conclusion does not mean that the testator necessarily intended full and unrestricted dominium in the common home to pass to



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the appellant. That the contrary is the case is clear from his provision that she was to enjoy the property only until her death or remarriage, implying that upon the occurrence of either of those events the property should pass to another. Accordingly, in my view, in clause 2 of the will the testator created a fideicommissum over the property without expressly identifying the person upon whom it should devolve on the appellant’s rights as fiduciary coming to an end.

[20] In Jewish Colonial Trust Ltd v Estate Nathan 1940 AD 163 at 180 Watermeyer JA, in dealing with a similar failure, said:

…if the ownership of property is bequeathed to a beneficiary, then any curtailment of the rights of ownership appearing in the will, such as a prohibition against alienation or a conditional deprivation of the rights of enjoyment, is of no legal effect unless a third party is indicated in whose favour such curtailment is to operate.

The reason for this is that ‘[u]nless a testator indicates…some person who shall be entitled to the subject-matter of the bequest if and when the event occurs, the prohibition hangs in the air; there is no one to enforce it….’

[21] By extending a ‘usufruct’ over the common home until the appellant’s death or remarriage, the testator obviously intended that she was not to alienate the property. But in considering the effect of the testator’s failure to specifically nominate a beneficiary to whom ownership of the common home was to pass after the appellant, it should be remembered that, like any other testamentary provision, a disposition to a beneficiary may be necessarily implied from the terms of the will. In doing so, a court is guided by the same principles as those applied when implying tacit terms into a contract—it applies the well-known ‘bystander test’ in the light of the express terms of the will and the relevant surrounding circumstances and considers whether it is a term ‘so self-evident as to go without saying’. Although a court must guard against making a will for a testator and thereby doing violence to the concept of the testator determining the destiny of his or her estate, when a beneficiary can be identified by this process it will not hesitate to ensure that effect is given to the testator’s implied intention.

[Interpreting a will]

[22] Of course in determining a testator’s intent, the terms of the will as a whole must be considered. It is clear from clauses 2 and 3 that the testator intended only the appellant and, failing her, the respondents in equal shares or their children by representation, to inherit from him. No other person is mentioned as a potential beneficiary and, most



—138 —

significantly, in clause 3 the testator did not burden the bequest of his estate to the respondents with what he incorrectly referred to as a usufruct, as he did the bequest to the appellant in clause 2. From this the inference is irresistible that he intended ownership of the common home to pass to the respondents without any limitation on their dominium in the event of their inheriting. No reason presents itself for concluding that the testator could have intended persons other than the respondents from ultimately acquiring the common home if the appellant initially inherited the property, but not if the respondents did so.

[23] In interpreting a will, a court must if at all possible give effect to the wishes of the testator. The cardinal rule is that ‘no matter how clumsily worded a will might be, a will should be so construed as to ascertain from the language used therein the true intention of the testator in order that his wishes can be carried out’. In the present case, in the light of what I have set out above, despite the poor wording of GR2, I am satisfied that clause 2 creates a fideicommissum over the common home, with the appellant as the fiduciary until her death or remarriage, whereupon the property is to pass to the respondents or their children as prescribed in clause 3.

[Conclusions]

[24] To summarize my conclusions:

(a) The will GR2 was intended by the testator to be his will and should be accepted as such by the master under the Administration of Estates Act 66 of 1965.

(b) The testator’s failure to attach a list of specific bequests to GR2 does not render it void for vagueness.

(c) The provisions of clause 2 of GR2 similarly do not render it void for vagueness.

(d) The court a quo therefore erred in concluding that GR2 was void for vagueness and that the testator died intestate.

(e) Clause 2 of GR2 provides for the appellant to inherit the entire estate of the testator subject to there being a fideicommissum over the common home to endure until the appellant’s death or remarriage whereupon the property is to devolve upon the respondents or their children.

2011—Pienaar v Master


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2011

PIENAAR AND ANOTHER v MASTER OF THE FREE STATE HIGH COURT, BLOEMFONTEIN, AND OTHERS 2011 (6) SA

338 (SCA)

Lewis JA, Cachalia JA, Shongwe JA, Theron JA and Majiedt JA

1 June 2011

Appeal allowed.

Testator’s second will did not revoke earlier will. Both wills read together, with later will revoking earlier one in instances of

inconsistency.

Per THERON JA (unanimous):


[More than one will]

[11] Where a testator dies leaving more than one testamentary disposition the wills must be read together and reconciled and the provisions of the earlier testaments are deemed to be revoked insofar as they are inconsistent with the later ones. Where there is conflict between the provisions of the two wills, the conflicting provisions of the earlier testament are deemed to have been revoked by implication.

[12] As I have said, the 2006 will revoked all previous wills, codicils and other testamentary writings while the 2007 will did not contain a revocation clause. But it is clear from a reading of the wills that the testator’s intention in each was to dispose of his entire estate. He started both wills with the words ‘Ek bemaak my boedel soos volg’. He then, in both wills, proceeded to dispose of his entire estate. The 2007 will has a different scheme to that of the 2006 will. In the later will the testator bequeathed an immovable property to each of his children and Du Toit was granted a right of lifelong use in respect of the property bequeathed to Derick. In the later will the testator dealt more specifically with his property. In my view, the 2007 will represents, in the words of Broome J in Price v The Master, ‘a completely new and different scheme and not simply a later set of dispositions to be superimposed on an earlier set’. Broome J went on to explain that where there are two wills, which to some extent contain similar provisions, but are in effect different, and each of the wills deals with the entire estate, then they

2011—Pienaar v Master


—140 —

cannot stand together and the later will must be construed as having impliedly revoked the earlier.

[13] The testator dealt with the residue of his estate in both wills. In the later will he disposed of the residue differently. And herein lies the inconsistency between the two testaments. It must be assumed, in the absence of evidence to the contrary, that the testator had knowledge of the meaning of the word ‘residue’. In the earlier will the residue consisted of, inter alia, a farm, two properties in a sectional-title scheme and other movable property, while in terms of the later will the residue comprised, inter alia, the policy, the farm and certain movable property as the testator had made specific bequests of the other two immovable properties to each of the appellants.

[Golden rule of interpretation of wills]

[14] The golden rule for the interpretation of wills is to ascertain the wishes of the testator from the language used. Once the wishes of the testator have been ascertained a court is bound to give effect to them. It follows that where a bequest has been made in an earlier testamentary disposition it would require clear and unambiguous language in a later testamentary disposition to justify a court finding that the testator had intended to revoke such bequest. It is clear from the language used in the 2007 will that the testator intended that the policy should fall within the residue of his estate. Such an intention can be gathered with relative certainty from the scheme as well as the terms of the later will. As has already been mentioned, at the time of his death, the testator had three investments in his Sanlam Personal Portfolio. In respect of two of these, he had nominated his first wife and Du Toit as beneficiaries, respectively. And the last Sanlam investment was merely a part of his estate. It is further clear from the 2007 will that he intended to leave the unspecified assets to the appellants. Those unspecified assets included the third Sanlam investment. The necessary inference is that the testator intended to change his previous will.

[Earlier will contained important provisions]

[15] There was thus no need to revoke the previous will: it contained important provisions for the administration of the estate that did not need to be changed. Where change was intended it was clearly prefaced with the words that he bequeathed his estate ‘as follows’.

2010—Van der Merwe v Master


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2010

VAN DER MERWE v THE MASTER AND ANOTHER 2010 (6) SA 544 (SCA)

Navsa JA, Cloete JA, Shongwe JA, Ebrahim AJA and Bertelsmann AJA

6 September 2010

Appeal allowed.

Document bearing characteristics of will unsigned. Found to be a will, under the Wills Act.

Per NAVSA JA (unanimous):


[Section 2(1) of the Wills Act]

[11] The formalities required in the execution of a will are set out in s 2(1) of the Act. The relevant parts of s 2(1)(a) provide: (a) no will executed on or after the first day of January, 1954, shall be valid

unless— (i) the will is signed at the end thereof by the testator or by some other

person in his presence and by his direction; and (ii) such signature is made by the testator or by such other person or is

acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and

(iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and

(iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page; and….

[12] On the other hand, s 2(3) of the Act sets out the power of a court in relation to a will or amendment thereof which does not comply with the prescribed formalities. It reads as follows:

If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965



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(Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).

[13] It is clear that the formalities prescribed by ss 2(1) and 2(2) in relation to the execution of a will and amendments thereto are to ensure authenticity and to guard against false or forged wills.

[14] By enacting s 2(3) of the Act, the legislature was intent on ensuring that failure to comply with the formalities prescribed by the Act should not frustrate or defeat the genuine intention of testators. It has rightly and repeatedly been said, that, once a court is satisfied that the document concerned meets the requirements of the subsection, a court has no discretion whether or not to grant an order as envisaged therein. In other words, the provisions of s 2(3) are peremptory once the jurisdictional requirements have been satisfied.

[15] Turning to the provisions of s 2(3), the first question to be considered is whether the document in question was drafted or executed by the deceased. Following on this is the question whether the deceased intended it to be his will. In Letsekga v The Master and Others 1995 (4) SA 731 (W) the following was stated at 735F–G:

The wording of s 2(3) of the Act is clear: the document, whether it purports to be a will or an amendment of a will, must have been intended to be the will or the amendment, as the case may be, ie the testator must have intended the particular document to constitute his final instruction with regard to the disposal of his estate.

[16] A lack of a signature has never been held to be a complete bar to a document being declared to be a will in terms of s 2(3). In Letsekga, decided in the division from which this appeal emanated, the lack of a signature was not held to be a bar to an order in terms of s 2(3) of the Act. Ex parte Maurice 1995 (2) SA 713 (C), decided in the same year as Letsekga, was to the same effect. In Thirion v Die Meester en Andere 2001 (4) SA 1078 (T) an unsigned document, drafted by a person shortly before he committed suicide, was held to be a valid will and declared as such in terms of s 2(3). In that case the deceased had executed a prior will that had complied with all the prescribed formalities. The very object of s 2(3), as pointed out above, is to ameliorate the situation where formalities have not been complied with, but where the true intention of the drafter of a document is self-evident. A basic trawl through the decided cases reveals that the absence of a signature has not been seen as a bar to relief in terms of s 2(3). On the other hand, it must be emphasized that, the greater the non-compliance with the prescribed



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formalities, the more it would take to satisfy a court that the document in question was intended to be the deceased’s will.

[Testing the document against the jurisdictional requirements of s 2(3)]

[17] I return to consider the document in question against the jurisdictional requirements of s 2(3) of the Act. The appellant provided proof that the document had been sent to him by the deceased via e-mail, lending the document an aura of authenticity. It is uncontested that the document still exists on the deceased’s computer. Thus it is clear that the document was drafted by the deceased and that it had not been amended or deleted.

[18] The document is boldly entitled ‘TESTAMENT’ in large-type print (6 millimetres high), an indicator that the deceased intended the document to be his will. Furthermore, the deceased nominated the appellant as the sole beneficiary of his pension-fund proceeds. This is an important and objective fact which is consonant with an intention that the appellant be the sole beneficiary in respect of the remainder of his estate. It is also of importance that the deceased had no immediate family and that the appellant was a longtime friend and confidante. The fact, that his previous will nominated the second respondent as his sole heir, indicates that he had no intention of benefiting remote family members. The appellant’s version of the mutual agreement—to benefit each other exclusively by way of testamentary disposition—is uncontested by the second respondent, the sole beneficiary of the prior will, and is supported by the fact that, after the deceased had sent the document to the appellant, the latter executed a will nominating the deceased as his sole beneficiary, another objective fact. All of this leads to the inexorable conclusion that the document was intended by the deceased to be his will.

[19] In light of the aforegoing it is clear that the court below erred in dismissing the application. The appellant was clearly entitled to the relief sought. The following order is made:

….


—144 —

2010—Emma Smith Educational Fund v University of Kwa-Zulu Natal


—145 —

CURATORS, EMMA SMITH EDUCATIONAL FUND v UNIVERSITY OF KWAZULU-NATAL AND OTHERS 2010 (6) SA

518 (SCA)

Navsa JA, Cloete JA, Shongwe JA, Ebrahim AJA and Bertelsmann AJA

1 October 2010

Appeal substantially dismissed.

Charitable testamentary trust included racially restrictive provision. Relevant clause deleted under the Trust Property Control Act.

Per BERTELSMANN AJA (unanimous):


[Section 13 of the Trust Property Control Act]

Conclusions [24] Section 13 of the Act reads as follows: 13 Power of court to vary trust provisions If a trust instrument contains any provision which brings about consequences which

in the opinion of the court the founder of a trust did not contemplate or foresee and which—

(a) hampers the achievement of the objects of the founder; or (b) prejudices the interests of beneficiaries; or (c) is in conflict with the public interest, the court may, on application of the trustee or any person who in the opinion of the

court has a sufficient interest in the trust property, delete or vary any such provision or make in respect thereof any order which such court deems just, including an order whereby particular trust property is substituted for particular other property, or an order terminating the trust.

[25] Section 13 of the Act authorizes a court to vary or delete the provisions of a trust instrument in the contemplated circumstances. The submission on behalf of the curators that the Act does not apply to the Fund because it is now written into statute and somehow is not a trust instrument that can be varied or otherwise dealt with in terms of the Act, is fallacious. This is best demonstrated by a consideration of the history of how the Fund came to be administered by the university.

[History of administration of fund]



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[26] The Natal University College was established by the Natal University College Act 18 of 1909, s 3 of which entrusted its council with the administration of all grants of money to the college ‘according to the objects and conditions of such grants’.

[27] The University of South Africa Act 12 of 1916 identified the college as a constituent college of the University of South Africa. Section 3(2) of this Act determined that the provisions of any law, by which the constituent colleges had been established and governed until then, would remain in force, together with every rule or regulation made in terms thereof.

[28] The University of Natal (Private) Act 4 of 1948 created the University of Natal. All the assets and liabilities, rights, powers and privileges of the Council of the Natal University College were transferred to the new university. Section 14 of this Act deals, inter alia, with trusts and similar bequests, which are to be applied ‘and exercised by the University in accordance with the conditions of such trust, donation or bequest’.

[29] The University of Natal (Private) Act of 1948 was replaced by the University of Natal (Private) Act 7 of 1960. It contains only one relevant provision, s 8(6), which reads:

The Council shall administer all the property of the University and, except as otherwise provided in this Act, shall have the general control of the University and of all its affairs, purposes and functions.

[30] The Higher Education Act 101 of 1997 transformed existing universities into public higher-education institutions and created the legal framework for the merger of two or more such institutions. Section 22(5) of this Act, dealing with an institution such as the first respondent, provides that all funds vested in the educational institution by virtue of a trust, donation or bequest, must be applied in accordance with the terms upon which such trust, donation or bequest was created.

[31] The University of Natal (Private) Act of 1960 was repealed by the Higher Education Amendment Act 23 of 2001, which confirmed the continued existence of the University of Natal and of its institutional statute in s 28(1) thereof. This institution was merged with the University of Durban-Westville as contemplated in the Higher Education Act 101 of 1997.

[32] These statutory provisions did not alter the terms and conditions of the original Trust, nor did they alter its essential nature. The university is the ultimate successor in title to the Natal University College.



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Although administered by the successive institutions set out above, the Trust has continued to exist. It must now be—and is in fact—administered by the university’s Council. The Act therefore applies to the Trust.

[Authority to amend trust deed]

[33] As stated above, a court is authorized in terms of s 13 to delete or vary a provision in the trust instrument which hampers the achievement of the objects of the founder, or which prejudices the interests of the beneficiaries or is in conflict with the public interest.

[34] The court below granted the relief sought by the university on the basis that the offending provisions were against the public interest. It relied, inter alia, on the decision in Minister of Education and Another v Syfrets Trust Ltd NO and Another 2006 (4) SA 205 (C) ([2006] 3 All SA 373). In considering public policy the court below took into account that equality was a foundational constitutional value. Furthermore, the court below thought it significant that the university, a public body maintained by public funds, was entrusted with the administration of the bequest.

[Equality]

[35] Equality is enshrined in s 9 of the Constitution in the Bill of Rights: 9 Equality (1) Everyone is equal before the law and has the right to equal protection and benefit

of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To

promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

[36] The legislation contemplated in ss (4) is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It is only necessary to refer to its preamble, s 7 and its Schedule:



—148 —

Preamble The consolidation of democracy in our country requires the eradication of social and

economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people….

7 Prohibition of unfair discrimination on ground of race Subject to section 6, no person may unfairly discriminate against any person on the

ground of race, including— …; (b) the engagement in any activity which is intended to promote, or has the effect

of promoting, exclusivity, based on race; …; (d) the provision or continued provision of inferior services to any racial group,

compared to those of another racial group; (e) the denial of access to opportunities, including access to services or

contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons.

Schedule ILLUSTRATIVE LIST OF UNFAIR PRACTICES IN CERTAIN SECTORS

(Section 29) 1. …. 2. Education (a) Unfairly excluding learners from educational institutions, including learners

with special needs. (b) Unfairly withholding scholarships, bursaries, or any other form of assistance

from learners of particular groups identified by the prohibited grounds. (c) The failure to reasonably and practicably accommodate diversity in education.

[37] The Bill of Rights applies to all law, including the law relating to charitable trusts—

the objects of a trust will have to conform with the disavowal of unfair discrimination under the 1996 Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, which envisage equality even in person-to-person relations’. [Cameron et al Honoré’s South African Law of Trusts 5 ed (2002) at 171–172].

[Racially discriminatory testamentary dispositions]



—149 —

[38] In the public sphere there can be no question that racially discriminatory testamentary dispositions will not pass constitutional muster. Public policy—

is now rooted in our Constitution and the fundamental values it enshrines, thus establishing an objective normative value system. In considering questions of public policy for purposes of the present application, therefore, the Court must find guidance in the founding constitutional values of human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism. [Syfret’s case, supra, para 24, quoting Napier v Barkhuizen 2006 (4) SA 1 (SCA) (2006 (9) BCLR 1011; [2006] 2 All SA 496) para 7.]

Syfret’s concerned a public charitable educational fund, administered by the University of Cape Town, which excluded black persons, women and members of the Jewish faith as beneficiaries. In a comprehensive judgment, with copious reference to authority, Griesel J came to the conclusion that the discrimination against the excluded persons was in conflict with public policy because it transgressed the equality provision of the Bill of Rights. Applying the common law, he ruled that the offending provisions had to be deleted.

[39] The university is a higher-education institution as defined in the Higher Education Act 101 of 1997, bound by s 37(3) of that Act, to ‘provide appropriate measures for the redress of past inequalities and…not [to] discriminate unfairly in any way in its admission policy’, and by s 4 of the National Education Policy Act 27 of 1996, to direct such policy to respect every person’s right to ‘basic education and equal access to educational institutions’. The University is obliged to apply public policy.

[40] Subsections 13(a) and (c) of the Act apply to the present issue, as the racially restrictive nature of the Fund prevents the realization of the testator’s intentions, while it is, in addition, in conflict with the public interest (the term is a synonym of ‘public policy’: Syfret’s case, supra, para 24). The court below correctly decided to remove the racially restrictive conditions of the will.

[41] The curators argued that the judicial amendment of a public charitable trust’s provisions would have a chilling effect upon future private educational bequests. I cannot agree. We are not called upon to decide the case of a testator who is a member of a congregation wishing to create a trust for members of his or her faith or a club member intending to benefit the children of fellow members. Testators who intend to benefit the underprivileged in the educational field will not be dissuaded, I think, from doing so by the implications of this judgment.



—150 —

[42] The curators contended that the amendment of the will would interfere with freedom of testation which, they argued, is not only a fundamental principle of the law of succession but also part of the fundamental right not to be deprived of property in an unjustifiable fashion. The constitutional imperative to remove racially restrictive clauses that conflict with public policy from the conditions of an educational trust intended to benefit prospective students in need and administered by a publicly funded educational institution such as the University, must surely take precedence over freedom of testation, particularly given the fundamental values of our Constitution and the constitutional imperative to move away from our racially divided past. Given the rationale set out above, it does not amount to unlawful deprivation of property.

[43] The curators suggested that the university’s qualms concerning the Fund’s administration could be met by transferring the responsibility to a private institution. This submission overlooks the fact, as emphasized by Nicholson J in the court below, that the testator deliberately decided to entrust the university with the function of administering the Fund. It bears repetition that the university is a publicly funded institution that is obliged to serve all sections of society and cannot be seen to associate itself with racially discriminatory practices. In the English decision of In re Lysaght, Hill v the Royal College of Surgeons [1966] Ch 191, the court was faced with a bequest for scholarships to the college, made with the proviso that the recipients should be neither Jews nor Catholics. The college refused to administer the gift. Although the bequest, as such, might not have been regarded as being against public policy (Blathwayt v Lord Cawley [1975] 3 All ER 625 (HL)), the court struck down the offending provision to enable the college to administer the bursaries by the application of the cy près doctrine. There is good reason to follow this example.

[44] The suggestion that the Fund might be void for vagueness will lose any validity if the offending provisions are deleted and it is clear that the Fund’s proceeds may be applied to assist all South African women in need of financial support of a tertiary education. The same holds good for the argument that its object may have fallen away as ‘British’ and ‘Dutch’ South Africans have become united, or that new circumstances have caused the objects of the Fund to become unattainable.

[45] The curators’ suggestion that, should the Trust be amended in respect of the group from which applicants for bursaries should be drawn, a racial quota should be introduced for future applicants was not supported by any evidence, statistics or precedent. It would, in the absence of compelling considerations to the contrary, constitute an unwarranted intrusion into the exercise of the trustees’ discretion and it

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