PVL2602 SUMMARY NOTES.pdf

1 LAW OF SUCCESSION STUDY UNIT 1 INTRODUCTION:  Forms part of Private Law  Comprises legal rules that determine what happens to a person’s estate after his death.  Rules of succession identify the persons entitled to succeed the deceased (the beneficiaries) and the extent of the benefits (inheritance / legacies) they are to receive.  Also includes the rights and duties of the beneficiaries & creditors may have over deceased estate.  Succession takes place in 3 ways: 1. Accordance with a valid will – testamentary succession or succession ex testament. 2. Through operation of the law of intestate succession in the absence of a valid will – succession ab intesto / succession legitima 3. Law of Suc also includes rules describing the administration process of deceased estates – Formal Rules. LAW OF SUCCESSION IN THE LEGAL SYSTEM:  Material Rules of law of Suc: - What becomes off a person’s estate after death; - What beneficiary will inherit; - Determine rights / duties that persons may have in deceased estate.  Formal rules: - Describes process by which deceased estate is liquidated, aka – administration of estate. SUCCESSION TERMINILORGY – NB Pg. 7 – 14 GROUND RULES FOR SUCCESSION Few ground rules that must be adhered to; 1. PERSON MUST HAVE DIED:  Common + Customary Law – prerequisite for succession, owner of estate must have died.  Cust Law: succession to status positions happens only once family head died. Estate Orpen v Estate Atkinson:  The Atkinsons, Mr + Mrs, massed their estate in a joint will and had only 1 child.  Mr Atkinsons will stipulated;2 o On his death, (died 1st), estate must be handed over to executor of the estate and they would act as trustees (thus trust formed on death). o Mrs Atkinson and daughter, Mrs Orpin, would receive income of trust in equal parts. o Aka – income beneficiaries o Should mom/daughter die, the other receives whole of trust. o Should daughter die, the trust (corpus) would go to her children in equal shares, subject to usufruct of Mrs Atkinson (should she still be alive). o If daughter has no children, daughter can designate person inherit will and 20% of corpus would go to that person (this case, the husband). o Daughter received “power of appointment” form parents’ will.  Daughter died 1st, then father, then spouse.  Legal question: whether the exercise of Mrs Orpen “power of appointment” in favour of Mr Orpen ito her fathers will was valid, and  Whether her spouse’s deceased estate had obtained vested rights with regard to the 20% trust capital bequeathed to him, regardless of the fact that she died before her father.  Court held: Mr Orpen’s estate had no right to the 20% trust capital.  Mrs Orpen obtained her right to power of appointment upon the death of her father only. EXCEPTIONS TO RULE: a) COURT PRONOUNCES A PRESUMPTION OF DEATH & MAKES AN ORDER FOR THE DIVISION OF THE ESTATE:  Onus is on the person who alleges he is dead.  Person has disappeared with no body: difficult to prove.  Only once court makes presumption of death order, can the person’s estate be administered.  Customary for court to order that the estate of the person presumed to be dead, should be distributed amongst his heirs, subject to the provision of security that the estate can be returned to him, should he reappear.  Factors court takes into account; - Length of time person has been missing - Age - Health - Status in society - Circumstances surrounding disappearance b) ESTATE MASSING:  Entire/part of estates of various testators are consolidated into a single economic unit for testamentary disposal.  Surviving testators estate dissolves upon death of the other testator.3 c) NUMBER OF PEOPLE KILLED IN SAME ACCIDENT – COMMORIENTES:  Difficult to prove who died 1st for purpose of determining beneficiaries, especially if family members involved.  RULE: no presumptions of persons predeceasing each other or of simultaneous death. Ex Parte Graham:  Mother & adopted son died together in a plane crash. o Mother left son: “all my estate remaining at the time of the death of my father and mother” Also certain immovable property be transferred immediately in the name of my son, subject to right of her parents to remain in the house for rest of their lives. o Should son predecease mother, the whole estate must succeed unconditionally to her mother.  Registrar refused to transfer immovable property to mother, without court order declaring adopted son predeceased mother or died simultaneously with testatrix.  Court came to the conclusion that no presumption as to which of the 2 people predeceased the other.  Question as to who died 1st depends on facts or circumstances of each case individually.  This case: conclusion – died simultaneously. 2. TRANSFER OF RIGHTS / DUTIES WITH REGARD TO ASSETS AND / OR STATUS OF DECEASED:  Somebody must take the place of the deceased testator with regard to ownership of his assets and / or  Customary Law – with regard to status.  Common Law: transfer of rights/responsibility which belonged to deceased.  Customary Law: depends on type of property and status of deceased  Ground rule linked to dies cedit and dies venit. 3. BENEFICIARY SHOULD AT THE TIME OF DIES CEDIT BE ALIVE OR HAVE BEEN CONCEIVED:  Transfer of rights/responsibility is prerequisite for succession.  Where beneficiary predeceased when the bequeathed benefit vests, there can be no succession, except if the deceased made provision in his will or ANC for predeceased of the beneficiary or in circumstance mere ex lege substitution applies.  EXCEPTION: beneficiary has been conceived, but not yet born when the bequeathed benefit vests.  Unborn child has no rights or duties – nascitirus fiction applies, and the vesting of bequest is held until child is born alive.  Nascitirus fiction: codified in the testate law of succession by Sec 2D(1) of the Wills Act.4 4. BENEFICIARY MUST BE COMPETENT TO INEHRIT STUDY UNIT 2 INTESTATE SUCCESSION INTRODUCTION  2 Laws apply: 1. Intestate Succession Act – deceased lived under common law system. 2. Reform of Customary law of Succession Act – deceased lived under Cust Law. BASIC CONCEPTS: Pg. 22 – 23. WHEN DOES PERSON DIE INTESTATE: 1. Without leaving a will at all. 2. Having executed a valid will, which has subsequently become wholly or partly inoperative for some reason. 3. With a valid will that fails to dispose of all the deceased’s assets. 4. Leaving a document purporting to be a will, but which does not comply with the formalities for wills and is ito condone ditto Sec 2(3) of Wills Act. VESTING OF AN INTESTATE INHERITANCE: When a person dies partially intestate: Harris v Assumed Administrator Estate MacGregor:  Deceased executed a valid will in 1941 and died 1943.  Will stipulated: o Estate goes into trust, of which the wife will be income beneficiary. o On wife’s death, the trust capital was to be paid to the children born of their marriage. o No children and upon death of wife – capitol of trust must go to deceased’s brother. o If brother predeceased appellant, the capital of the trust was to pass to his brother’s children, if any.  Deceased died with no children, brother died in 1979, leaving no children (only wife is still alive) Law of intestate succession or succession ab intestate - The law of intestate succession comprises the legal rules or legal norms that determine how succession should take place in cases where a testator fails to regulate succession on death by way of a valid will or a pactum successorium contained in an ANC.5  No provision made in will for this contingency, and the result was that there was intestacy as regards the devolution of the trust capital.  Appellant and Respondent agreed that intestacy occurred, but differed on which date this occurred.  Either in 1943, when deceased died or when it was first determined that the will had failed (when brother died in 1979).  Vital because, 1943 the Succession Act allowed for the deceased’s mother to inherit intestate and 1979 the Succession Act allowed for the spouse to be only heir as she is only surviving intestate relation at that date.  Court held: o Where a deceased dies without having made a will at all, or without leaving a valid will, his / her intestate estate vests on the date of his death when his intestate heirs have to be determined. o Where a testator dies leaving a valid will which took effect on his death but which subsequently became inoperative, either in total or in part, his intestate estate vests on the date when it first became factually certain that his will had become inoperative. o Any intestate heirs would have to be determined, not at his death, but when the intestacy occurred. Applying Harris V Assumed Administrator, Estate MacGregor, ruling to 4 instances of intestacy will have the following consequences: 1. Without leaving a will at all: In theory, vesting of the intestate inheritance occurs the moment the testator dies, but in practice, it will take place when the liquidation and distribution account is lodged with the Master without objection. 2. Having executed a valid will which has subsequently become wholly or partly inoperative for some reason: Vesting of the intestate inheritance occurs when it is 1st determined that the will, or parts thereof, has failed. As regards the parts of a will that have not failed, vesting of those parts is determined according to the rules of vesting for testate succession. 3. With a valid will that is executed, but fails to dispose of all the deceased’s assets: The assets that have been dealt with in the will, will devolve according to the rules of intestate succession. Theory – vesting of the intestate inheritance occurs the moment the deceased dies but in practice, it takes place when the liquidation and distribution account is lodged with the Master without objection. 4. Leaving a document purporting to be a will which does not comply with the formalities for wills and is not condoned ito Sec 2(3) of the Wills Act: Theory, vesting of the intestate inheritance occurs the moment the deceased dies, but in practice, it takes place when the liquidation and distribution account is lodged with the Master without objection CAPACITY TO INHERIT INTESTATE: Following is qualified to inherit intestate, certain common laws prevented the following from inheriting, but it has changed: 1. Only natural persons may inherit:  Juristic or commercial entity may not inherit intestate.6 2. Extramarital, adulterine and incestuous children:  Sec 1(2) of Intestate Succ Act: “illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation”. 3. Children born as a result of artificial fertilisation:  Sec 1(2) of ISA is subject to Sec 40 of the Children’s Act.  If child is found to be extramarital after applying provision of Sec 40, the child will only inherit from mother and her relations.  However, if the child is determined to be legitimate, he/she may inherit from mother + relations, as well as spouse + relations. 4. Children born as a result of Surrogacy arrangements:  Chapter 19 of Children’s Act: surrogacy arrangements are recognised.  If relevant parties entered into valid surrogacy arrangements, child will be legitimate and can inherit intestate from both parent + their relations.  If surrogacy arrangement is defective or rescinded by a court, child born will be considered the child of the surrogate mother only. 5. Adopted Children:  Sec 1 (4) of Intestate Succ Act: adopted child is deemed to be a descendant of his/her adoptive parent(s) and not a descendant of his/her natural parents, except;  Where natural parent is also adoptive parent of child; or  Was married to the child’s adoptive parent at the time of the adoption. 6. Unborn Children:  Nascitirus Fiction. CONSTITUTIONAL CHALLENGES: Bhe v Magistrate, Khayelitsha  CC declared Sec 23 of Black Administration Act and the regulations thereto unconstitutional and extended the Intestate Succession Act to cust law of intestate suc.  Sec 23: encapsulated the principle of male primogeniture.  CC held that Sec 23, the regulations and the rule of male primogeniture amounted to unfair discrimination ito Sec 9(3) of the Constitution.  Also violated Sec 10 of Constitution against woman.  Court decided to modify the ISA to take into account polygynous African cust marriages.  Bhe v Mag has been in large superseded by the provisions of the RCLSA. Daniels v Campbell:  CC extended the meaning of the term “spouse” and meaning of “survivor”. Govender v Ragavayah:7  Word ‘spouse’ includes a surviving spouse in a monogamous Hindu marriage. Hassam v Jacobs NO 2009 (5) 572 (CC) – (nb case):  CC decided: a woman who is a party to a polygynous Muslim marriage concluded under Muslim law, is a spouse for the purpose of inheriting or claiming maintenance form the estate of the deceased spouse who died without leaving a will.  READ CASE AND SUMMARY ON PG 7-8 IN SG. ORDER OF SUCCESSION: 1. Rule 1 – Sec 1 (1)(a): Deceased is survived by spouse(s), but by no descendants: Depends on 2 possible variables: a) Deceased survived by 1 spouse; the spouse inherits the entire intestate estate, the deceased’s parents, brothers, sisters are excluded. See Fig 2.3 – pg 30. b) Deceased is survived by more than one spouse: intestate estate must be divided equally among all the spouses. See Fig 2.4 – pg 30. 2. Rule 2 – Sec 1(1)(b): Deceased is not survived by a spouse, but is survived by descendants:  Descendant(s) will inherit the entire intestate estate equally and representation is possible.  Fig 2.5, Pg 31  Sec 1 (7): if a child of the deceased has predeceased the deceased, or is disqualified from inheriting, or renounces the inheritance, then the share pass equally to descendants of that child.  Sec 1(7): Process known as representation ex lege (by operation of law) and continues ad infinitum. 3. Rule 3 – Sec 1(1)(c): Deceased is survived by spouse(s) and Descendants: a) WHERE DECEASED IS SURVIVED BY 1 SPOUSE:  One spouse + descendants survive, the surviving spouse inherits whichever is the greater of either a child[‘s portions or an amount fixed from time to time by the Minister of Justice – currently: R125 000  Descendants inherit the residue of the intestate estate.  Share inherited by a surviving spouse is unaffected by any amount wo which he/she might be entitled to ito matrimonial property laws.  ICP / ANC – spouses share is deducted first, before intestate estate is distributed.  Fig 2.6, PG. 33. Child’s Portion : Deceased estate / number of children who survived or predeceased, but have descendants left of their own + number of surviving spouses = CP8  See Example 1 + 2 + 3 + 4 (ICP + OCP + OCP with Accrual + OCP with no Accrual) b) WHERE THE DECEASED IS SURVIVED BY MORE THAN ONE SPOUSE:  Each surviving spouse inherits whichever is the greater of a child’s portion or an amount fixed from time to time by the Minister – R125 000.  Descendants will inherit the residue.  If assets of deceased are not sufficient to provide each spouse with the amount fixed by Minister, the estate is divided equally among the surviving spouses and the descendants receive nothing.  See Fig 2.7, PG. 35 4. Rule 4 – Sec 1 (1)(d)(i): Deceased is not survived by spouse or descendants, but by both parents:  Parents inherit intestate estate in equal shares.  Parents include: biological, adoptive and commissioning parents in the case of surrogacy, but NOT step-parent.  If both parents are alive, all other collateral relations of deceased are excluded from inheriting.  See fig. 2.8, PG. 35. 5. Rule 5 – Sec 1(1)(d)(ii): Deceased is survived by one parent and the descendants of the other parent:  Surviving parent inherits ½ of estate and the descendants of the deceased parent the other half.  If deceased parent has no descendants, the surviving parent inherits the entire estate.  Division btw descendants of a predeceased parent of the deceased takes place by representation per stirpes.  See Fig 2.9, PG 36. 6. Rule 6 – Sec 1(1)(e)(i)(aa) – (cc): Deceased Is not survived by spouse, descendants or parents, but by descendants of his / her parents:  Ex: by a brother / sister – the intestate estate is divided into halves.  It is said that the estate is cloven into 2 equal shares with each share going to the side of one of the deceased’s parents. Continue RULE 7 + 8 on pg. 37 + 38. DISQUALIFICATION AND REPUDIATION:9  Sec 1 (7): Person who is disqualified from being heir or repudiates an inheritance, the benefit which the heir would have received devolves as if the heir predeceased the deceased and as if the heir was not disqualified or repudiated.  If disqualified / repudiated heir has descendants, they will inherit their share.  No descendants, then the share will go to the other heirs of the deceased accrding to normal principles of intestate succession.  When inheritance is repudiated: you must apply Sec 1(7), in conjuction with Sec 1(6), because Sec 1(7) is ‘subject to’ Sec 1(6), meaning; - Repudiating heir’s share will go to the deceased’s surviving spouse. - If there’s no surviving spouse, the descendants of the repudiating heir will inherit by representation per stirpes - If there are no descendants, the inheritance will pass to the intestate heirs of the deceased according to the normal rules of intestate succession. FIG 2.14, PG. 30 – SEE! CUSTOMARY LAW OF SUCCESSION: - Cust Law of Succ was largely abolished by Bhe v Magistrate, followed by the RCLSA. - RCLSA came into operation on 20 Sept 2010. - RCLSA is read with the Intestate Succ Act: applicable to all intestate estates of black people who maintained an African customary lifestyle by entering into an Acrican Cust Marriage. STUDY UNIT 3 TESTATE SUCCESSION – GENERAL RULES INTODUCTION: Testate law of succession or succession ex testamento The testate law of succession comprises those legal rules or norms that regulate the devolution of a deceased person’s estate on one or more persons according to the testator’s wishes as expressed in a will. The law of testate succession therefore deals with wills.  Testator drafts will to regulate how estate and other affairs should eb dealt with after his death.  Wills Act was amended in 1992 and our law has permitted only 1 kind of will, referred to as a statutory will.  Will making formalities are set out in Sec 2(1)(a) and apply to wills executed after 1 Jan 1954, where the testators died after 1 Oct 1992.  Apply only to documents that are wills.10 WILLS, CODICILS & TESTAMENTARY WRITINGS: Definition of Will A last will and testament, commonly called a will, is a document executed in the manner prescribed by law by a person, called the testator, concerning the disposition of property and other matters within his control, to take effect after his death. Basic prerequisites for validity of any testamentary document: 1. The testator must have the free and serious intention to execute a will – must have animus testandi. 2. The testator must have made the declaration voluntarily. Additional req for a valid will are prescribed in the Wills Act: 1. The testator must have testamentary capacity 2. The will must comply with the formalities prescribed by Sec 2 of the Wills Act. BASIC REQUIREMENTS: 1. Animus testandi:  Core requirement for validity of a will.  Testator must not only intend to provide for the devolution of his estate, but must also have the intention of doing so in a will.  As seen in: Sim v The Master + In re v Leedham  Will created by a deceased is invalid ab initio (from the onset or beginning).  Possible that animus testandi is caused by mistake or force.  Mistake: testator mistakenly signs a document not knowing that it is a will – will is invalid ab initio.  Mistake in Motivation: still has animus testandi and will is valid. Evidence may be led in court to establish whether deceased had the requisite animus testandi if this issue is disputed.  Makes will under fear / duress: no animus testandi and will is invalid ab initio. - Question is whether the influence was such that the testator did not have animus testandi or whether the influence was such that the testator no longer expressed his own free will, even if he had animus testandi.  Fraud: will is always invalid because of animus testandi. 2. Volition (or choice):  If a document does not express a testator’s own free will, the document does not comply with the definition of a will and cannot be seen as valid.  Factors can influence a testator’s free will; 1. Coercion, 2. Fraud, 3. Undue influence.  Above mentioned factors will declare will invalid, because it expresses someone else’s will or volition.  SPIES V SPIES:  Court explained role of undue influence and asserted that not each and every interference with a testator’s volition amount to a ground for invalidity.  Flattery, declarations of love or humiliation is not undue influence.11  However, when these actions takes the form of fraud or testator’s will is substituted by the will of the person guilty of these improper actions, there is undue influence which leads to invalidity of the will.  Relationship towards one another is also not enough to indicate undue influence.  Although these factors can be taken into account, along with testator’s emotional state, capacity to withstand pressure and the amount of time btw the influence and the execution of the will.  KIRSTEN V BAILEY:  Testamentary Capacity and lack of volition are 2 separate grounds for invalidity, but undue influence may play a role when the testator is already no longer compos mentis.  STUDY case on pg. 47 + Figure 3.2 on pg. 48. DEFINITION OF A CODICIL AND A TESTAMENTARY WRITING:  According to Wills Act: codicil + testamentary writing both qualify as wills.  Act does not specify whether there are differences / the same.  Codicil often used to refer to an addendum to a will, although codicil is a separate will CHAPTER 5 FORMALITIES FOR A WILL INTRODUCTION  Execution of a will is the process through which the testator and other parties comply with all the formalities required to bring a valid will into existence.  Will not executed according to the formalities required by the Wills Act is invalid.  Sec 2 (3): invalid will’s contents are ignored, unless there is a court order that accepts the will had been validly executed. – law ensures that there is a reliable and permanent evidence of the testator’s testamentary intentions.  May also happen that will is validly executed, but the contents of the will are invalid, eg: testator bequeaths his estate to a terrorist organisation (substantively invalid).  Formal Validity: refers to whether or not the will complies with the formalities;  Substantive Validity: refers to whether or not the contents of the will are lawful. FORMALITIES ITO SEC 2 (1) (a) OF THE WILLS ACT:  Execution formalities required by Sec 2 (1) (a), summarised as follows: 1. Will must be signed at the end by testator himself, or an amanuensis (person who signs on behalf of testator). 2. If will comprises more than 1 page, every page other than the last, must be signed anywhere on the page by the testator or amanuensis. 3. Signature of test/aman must be made (or acknowledged) in the presence of 2+ competent witnesses. 4. Such witnesses must attest and sign the will in the presence of test and each other.12 5. Where test signs with a mark (or aman), a commissioner of oaths must be present and certification formalities apply. Method of Execution Persons Present Test signs with own signature Test and 2 witnesses Test signs with a mark Test, 2 witnesses & commissioner of oaths. Amanuensis signs Test, aman, 2 witnesses & commissioner of oaths. REQUIREMENT OF A WRITTEN DOCUMENT  Handwritten, typing and printing (or combo) is acceptable for wills. Even pencil acceptable, though not advisable, because of fraud – all these formats comply with the signature requirement.  Oral will in the form of a video or DVD, saved electronic format on PC/hard drive or SMS are not compatible, because none can comply with the signature req. MEANING OF ‘SIGN’ AND ‘SIGNATURE’, AND THE CONCEPT OF A ‘MARK’  Wills act requires that a will be signed in various places by various persons.  Prior to 1 Oct 1992: In the case of a testator, a ‘sign’ includes the making of a mark, but does not incl the making of a mark in the case of a witness.  Act now: does not require that a person must sign with his ordinary or customary signature, nor does it require a person to sign in the same way on every page, not even to sign full name.  Use of any writing other than the person’s name does not qualify as a signature in the ordinary sense and constitutes as a mark. WHERE MUST TESTATOR SIGN  Wills Act requires that testator sign at ‘end’ of will: but where does will end?  At the end of page or end of words?  Held that the will consists of the words, and not the paper, therefore will must be signed at last paragraph of the writing. (as close as possible)  Why? Fraudulent inserts can’t be made.  Kidwell v The Master:  Court considered 9cm gap btw the end of writing and the test signature.  Court held that such a gap meant that the signature was not as close as reasonably possible to the concluding words of the will and that the will was invalid.  Study ‘Counter Point’ on pg 65.  If will is 1+ pages, then in addition to signing the end of the will, the test is also req to sign each of the other pages of the will.  Can be done anywhere on the page.  If will is written on both sheets of the paper, both sides must be signed. SIGNATURE BY AN AMANUENSIS13  Sec 2 (1) (a) (i): will must be signed at the end by ‘the test or by some other person in his presence and by his direction’. (other person – amanuensis).  Aman is simply the person physically signing, by which the test executes the will, aman should sign the test’s name, and not his own.  Would avoid confusion as to the identity of the test that may arise if the signature on the will is not the same as the test name recorded in the will.  When aman is used, it must be done in the presence of a commissioner of oaths, as well as usual witnesses, and the commissioner must certify the will. WHO IS REQUIRED TO WITNESS A WILL  Act requires 2 competent witnesses. Competent Witness A competent witness is any person above the age of 14 years who is not incompetent to give evidence in a court of law.  Sec 4A: a witness to a will, and his/her spouse at that time, lacks capacity to inherit under that will.  Beneficiary has capacity to witness, will witnessed by a beneficiary remains formally valid although the witness/beneficiary is deprived of the inheritance. MEANING OF WITNESSING  Two aspects to witnessing a will 1. Physical presence whiles the test, or aman signs. 2. Actual signing of the will y witnesses.  2 competent witnesses (present at the same time), must be present when test/aman signs each page of the will.  OR if 1/both witnesses are not present when the test signs, then the test must acknowledge his signature in the presence of both witnesses after such signing.  In addition to being present, both witnesses must also sign.  Will with 2+ pages: witnesses must be present when 1st pages are signed.  Liebenberg v The Master: witnesses need not sign near or below the test signature, but may sign anywhere on the page.  However, the witnesses’ signatures must not appear where the test signature ought to be at the end of the will.  Since 1 Oct 1992: witnesses need not sign all the pages, sufficient for last page only. – but will encourage witnesses to sign all pages, enhances security of the will.  Strictly speaking, witnesses must sign after the test signed, because witnesses can’t attest to a signature that hasn’t happened yet.  ‘Presence’ of witnesses: requirement is satisfied when the witnesses is in the same room as the test and either witness actually saw him/her sign or could or might have done so.  Not necessary to prove that the witness actually saw the act of signing if he was in a position to have seen it.  Not necessary for witness to know the contents of the will or event that the document being executed is a will.14 ACKNOWLEDGING A SIGNATURE  Act makes provision for the test to sign will in advance and then acknowledging his signature to witnesses – must be in the presence of the witnesses.  Act however makes no provision for test to make a mark, or for aman to sign in the absence of the commissioner of oaths. – mark or aman’s signature can’t be acknowledged to a commissioner of oaths. MUST A WILL BE DATED OR HAVE AN ATTESTATION CLAUSE?  Attestation clause is the final paragraph of the will which records and provides evidence of the date and place of signature and that the test and witnesses signed in each other’s presence.  Absence of such clause does not invalidate the will, but the clause has evidential value. ADDITIONAL FORMALITIES ASSOCIATED WITH A MARK OR AN AMANUENSIS  RULE: if test sings with a mark, or when aman signs for the test, the Act requires that the will be signed in the presence of commis of oaths in the presence of 2 competent witnesses.  Commissioner of Oaths must: 1. Satisfy himself as to the identity of the testator. 2. Satisfy himself that the will so signed is the will of the testator. 3. Make a certificate on the will itself in which he certifies that he has so satisfied himself. 4. Record in the certificate that he has done so in his capacity as commis of oaths. 5. Write the certificate on the will by hand, or type or print it on the will, or impress it on the will with a rubber stamp.  Act provides a specimen for Commis of Oaths to follow, does not need to be a replica of the Act’s certificate, but it is advisable to use (so as not to invalidate the will). – Example: pg 69.  Court applies the requirements of the Wills Act regarding certification strictly.  Statute does not require specifically that comiss of oaths record his capacity in such certificate, it has been held that this is a requirement and that failure to do so invalidates the will.  Radley v Stopforth:  Administrative officer of the Transvaal Provincial Administration at Vereeniging Hospital who was a commis of oaths, signed a certificate in which an imprint made on the page with a rubber stamp intimated that he was an admin official of the hospital.  Will was held to be invalid because he had not stated his capacity as ‘commis of oaths’.  Problems regarding the strict requirements for the certificate can be solved by application of Sec 2(3) of the Act.  Section allows for court to order that a defectively executed will be accepted as if it were validly executed, provided that the requirements of Sec 2(3) are met.15  Certificate: 1. May appear on any page of will (not blank reverse of page) and certificate must be signed, as well as every other page of the will where certificate does not appear. 2. Commiss of oaths can’t act in his capacity and as a witness. 3. Must be made ‘asap’ after the will has been marked by test or signed by aman.  Study “legal thinking” questions on pg 70 – 71!! FORMALITIES FOR THE AMENDMENT OF WILLS  2 Ways: 1. By executing a codicil which gives effect to the changes 2. Test can amend an existing will by interfering with the writing.(discussed here)  Each of the following actions brings about an amendment and requires compliance3 with the formalities for an amendment described below: 1. Additions 2. Alterations 3. Interlineations (inserting new words btw the lines of the will) 4. Deletions, cancellations and obliterations in whatever manner effected except where they contemplate the revocation of the entire will. (includes cutting out, erasing, tippex)  Pre-execution amendment: amendment to the will before signing it, (changing a beneficiaries name or legacy).  Requires no formalities to be lawful, because altered wording is already in place when the testator executes the will.  A pre-execution amendment must be signed nevertheless, by test and 2 witnesses, because Act provides that any amendment to the will shall be rebuttable presumed to have been made after the will was executed. REBUTTABLE PRESUMPTION: A rebuttable presumption is a presumption that will stand as a fact unless proven otherwise.  Post-execution amendment: amendments made to a will that has already been executed, governed by Sec 2(1)(b).  Failure to comply with requirements of Sec 2(1)(b) will mean that the amendment is ineffective.  Sec requires that amendment be identified by signature of test + 2 witnesses (because amendment is a new act of testation, the witnesses need not be the same as the witnesses when will was executed).  Identification by signature is achieved by placing the signatures of the test and witnesses close to the amendment.  Provisions made when test uses a mark or aman is used: commis of oaths must be present when amendment is executed + the commis of oaths is required to certify that: 1. He/she is satisfied as to the identity of the testator 2. The amendment has been made by or at the request of the testator 3. He/she has functioned in his/her capacity as a commis of oaths in so certifying.16 4. Needs to be clear which amendment the certificate refers – include a reference identifying the amendment to which certificate refers (not required by act though, but necessary).  Ways in which test can amend will: 1. Inserting additional paragraphs into the will 2. Writing additional words btw the existing lines o the will 3. Altering words or numbers in the will 4. Drawing lines through words, numbers or whole paragraphs of the will so as to delete them, whether or not new material is inserted in their place. SECTION 2 (3) OF THE WILLS ACT  Section gives the HC the power to order the Master to accept a document which does not comply with the execution or amendment formalities as a valid will, if it is satisfied that the test intended the defectively executed document to be his/her amendment to it.  Power of court referred to as – power of condonation  Sec 2(3) referred to as – rescue provision  If requirements of Sec 2(3) are satisfied, then court makes an order directing the Master to accept the will or amendment as if it were validly executed.  Provisions of Sec 2 (3) are peremptory – if the requirements of the section are satisfied by proof on a balance of probabilities, then the court has no discretion, but must make an order directing the Master to accept the document as a valid will. ISSUES OF INTERPRETATION 1. DEGREE OF COMPLIANCE  1st issue that arose: whether or not the rescue provision can be used to give effect to a document that was completely unsigned or whether some degree of compliance with the formalities is a prerequisite for the rescue.  Must it be substantial compliance?  Webster v The Master: section was not intended to validate a document that does not comply with any of the formalities of the Act, history of section shows that the purpose was to remedy technical non-compliance with the execution formalities. 2. UNSIGNED DOCUMENTS  2nd issue: if the rescue provision can be applied to an unsigned document, does the reference in the section to a document ‘drafter or executed by a person who has died’ mean that this can only be done if the testator had drafted the document personally, rather than using an attorney or other to draft it?  Court had 2 contradictory approaches, strict and flexible.  STUDY the 2 cases on pg 74 for strict and flexible approaches. Back v Master is NB for exam.  Court who followed the flexible approach treated proof that the testator intended the document to be his will as the sole requirement for the application of the section.17  Study Bekker v Naude on pg 75 – NB for exam.  Result of Bekker v Naude – can’t give effect to a completely unsigned will using the rescue provision, unless the will was drafted by the test in the strict sense of personal drafting.  Strict sense of drafting: meaning that test drafted will himself (being author) or orally dictated to another to draft the will.  Requirement of Sec 2(3): there be a document that was ‘drafted or executed’ by the person who has died.  If will has been executed by the test, it will not matter that he did not personally draft it – possible to use Sec 2 (3), possible to show that test intended it to be his will.  Read ‘counter point’ on pg. 76. ‘EXECUTED’ REQUIREMENT OF SEC 2 (3)  Most Sec 2(3) applications will elate to defectively executed documents that has not been drafted by Testator personally.  ‘Execute’ in relation to a document – to go through the formalities necessary to give validity, but this is not specifically intended ofr Sec 2(3), which is aimed at providing relief where there has been a failure to go through those requirements.  Counter point on pg 77  Is it possible to use Sec 2(3) to give effect to a PC document at the time of deceased death.  MacDonald v The Master and Van Der Merwe, pg 77. 5.4.3  Requirements in Sec 2(3) that there be a document that the testator ‘intended to be his will’.  Establish ‘intention’, it must be shown that the document was, at the time it was made, the final expression of the deceased wishes, not changed by a new will or codicil.  NOT based on written instructions / letters of instruction, given by deceased to an Attorney / bank / other, because testator does not intend the instructions to be his will – Rather a further document that must still be produced based on his instructions.  Cases pg 78 – 79  Testator’s intention at the time the document was made is relevant.  A subsequent change is irrelevant, unless it’s manifested in a testator’s document, revoked.  Case pg, 79 – Van Wetten  Held: not necessary to show that the testator believed he had succeeded in making a valid will.  Application for Sec 293) does not have to establish testator’s capacity, merely testamentary intention.  Person who contests the validity of a document on a basis that testator lacked capacity, bears the onus of proving the absence of capacity, once the intention has been established.18  If will is incomplete, then it cannot be said that testator intended it to be his will.  Case pg 79 = Webster. STUDY UNIT 6 REVOCATION AND REVIVAL OF WILLS INTRODUCTION Revocation Revocation is the act by which a testator cancels a will, or part of a will, so that it is no longer applicable. Revocation is the only way in which a will can be undone by a testator. Partial Revocation It is possible for a testator to revoke only part of his will, leaving the remainder of the will valid and effective. Oral Revocation Oral Revocation of a will is not recognised and will be ineffective.  Testator free to revoke his will anytime, any agreement that attempts to restrict this freedom is unenforceable;  2 Exceptions; 1. Where a mutual will establishes estate massing, the surviving testator who accepts the benefit of the massing cannot subsequently alter the testamentary disposition of the massed assets stipulated in the mutual will. 2. Testamentary provisions contained in a duly registered antenuptial contract cannot be unilaterally departed form or altered.  2 essential elements for revocation of a will that must be satisfied; 1. An intention to revoke – animus revocandi 2. A legally recognised act by which this intention is manifested.  Revocation of a will that expressly or implied revokes an earlier will does not revive the earlier will. METHODS OF REVOCATION:  4 methods; 1. Destruction of the whole will 2. Destruction of part of a will 3. Express revocation (incl informal revocation) 4. Implied revocation. 1. DESTRUCITON OF THE WHOLE WILL:  Animo revocandi – intention to revoke  Revokes will and no formalities required.  Accidental destruction does not revoke will, because intention is absent.  Evidence will have to be led regarding destructed part of will, because it’s force able.  Destruction can be physical (torn up), burnt or a) Defacing the writing of the will by drawing lines across it. b) Writing the words ‘cancelled’ or ‘revoked’ across the face of the will. c) Destroying the testator’s signature on the will. d) Destroying the signature of a witness on the will.  Destruction of signature at the end of the will, will revoke the will.19  Destruction of a signature on a multiple paged will is problematic - May mean to revoke that particular page, but the partial revocation will only be recognised if the rules for partial revocation has been met.  Counter point pg 83.  Writing ‘cancelled’ on will does not revoke it, because it doesn’t interfere with the wording.  Flexible approach when deciding if a will has been destructed - Cases on pg 83 + 84 - Marais v T.M – NB vir exam.  Destruction on a duplicate or coy will not suffice, original will be followed. 2. DESTRUCTIONOF PART OF A WILL:  Animo revocandi  Animo revocandi constitutes an amendment of the will and the formalities for amendment of wills must be followed.  Where revocation is not effective, the possible application of Sec 2A must be kept in mind. 3. EXPRESS REVOCATION  Testator can revoke a previous will(s) with appropriate revocation clause in a duly executed will, or document that is executed as a will, but contains only a revocation clause.  Executing a new will, without including a revocation clause does not revoke previous wills.  Oral revocation of a will is not possible.  CP pg 84  Revocation clause that has been inserted into a signed will without testator’s knowledge will be treated as pro non scripto (as if it had not been written). 4. IMPLIED REVOCATION  1. Execution of a later conflicting will: - Execution of a new will does not automatically revoke previous will – at test’s death both wills will be read together. - May be that provisions of the latter will conflicts irreconcilably with 1st will, then – the provisions of 1st will are impliedly revoked in so far as they are inconsistent with the later will or cannot stand together with any provisions in the later will. - 2 cases on pg 85 – 86.  2. Ademption: - Occurs where a test voluntarily alienates a particular asset, which was given to a beneficiary in a legacy in the test’s will. - Alienate: selling or donating. - Test is rebuttably presumed to have revoked the bequest of the asset – known to have lapsed by ademption. PRESUMPTIONS CONCERNING THE REVOCATION OF WILLS:20 1. Will is found in test’s possession in a damaged state, such as would be sufficient to revoke the will if done with animus revocandi, then it is rebuttably presumed that the damage was done by test with intention and the will is accordingly revoked. - Fram v Fram Executric: will was found signature was cut out. 2. If it is known that will was in test’s possession, but now can’t be found after his death, it is rebuttably presumed that the will has been revoked by test. - Presumption is 2 folded: a) There was an act of destruction b) Animus revocandi. - Le Roux v Le Roux:  Will was seen on test’s desk in 1960, but upon his death in 1961, will couldn’t be found.  No other evidence of what could have become of the will was found. - Ex Parte Warren:  test would usually take steps to preserve his will and if it was lost or accidently destroyed, the test would have been aware thereof and make a new one. 3. A will damaged or lost while in a 3rd party’s possession – presumption that will be revoked is not applicable. 4. CP pg 87. REVIVAL OF WILLS:  Occurs when previously lapsed / revoked will is given legal force again.  Re-emphasise: destruction of a will that expressly / impliedly revoked an earlier wll does nto bring about revival of the earlier revoked will.  Moses v Abinader: uncertainty over methods for reviving a revoked will (surely reexecution and signing formalities will suffice).  Moses v Abinader: - Bench agreed no revival took place, but question remained whether it was possible to revive a will by referring to it in a subsequent document executed as a will. - Judge held that this method of revival is unlawful in SA, because pages of old will must be signed together with pages of new will – aka, incorporation by reference.  Incorporation by reference is seen as an attempt to evade execution formalities.  Other Judge: - Distinguish between revival and incorporation by reference. - If the required intention to revive was present, then permissible to be referred to in a later valid will.  Wessels v Die Meester: - Court held that it is permissible to revive a lapsed or revoked will by referring to it in a subsequent, validly executed will – test’s wishes. - 3 requirements must be met. 1. The lapsed revoked will must have been validly executed when it was originally made.21 2. It must be incorporated by reference into a new validly executed will. 3. The testator intended it to revive the will. - CP pg 90 – 91.  Intention requirement: testator had to have known that the will he is trying to revive is no longer in force.  If test believed previous will was still in force, it is possible to establish that he intended to revive the will.  Case pg 91. REVOCATION BY THE COURT; SECTION 2A  Sec 2A is a parallel provision to Sec 2(3), that empowers a court to complete a defective attempt by a test to revoke his will.  Sec 2A: - If a court is satisfied that a testator has – (a) Made a written indication on his will or before his death caused such indication to be made; (b) Performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or (c) Drafted another document or before his death caused such document to be drafted. - By which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked.  Once court is satisfied that requirements have been met, it is obliged to make an order revoking the will or part of the will.  Courts must adopt a cautious approach in determining that test intended to revoke his will.  Must be proof on a balance of probabilities that test intended to revoke the will (or part) and that the test, or another person acting on behalf with test’s authority, performed one of the actions described in Sec 2A(a) –(c), for the purpose of revoking the will.  Actions are: 1. Making a written indication on the will (such as drawing lines across the face of the will). 2. Performing another act, not being writing, with regard to the will that is apparent from the face of the will (such as cutting out the signature of a witness on page two of a two page will which will cause the will to be invalid). 3. Drafting another document by which it is intended to revoke the will 9sych as writing an informal document that purports to revoke the will, but that does not comply with the requirements for a will).  Document referred to in Sec 2A(c), the test intention must have been that the document itself would revoke the will.  Letsekga v The Master: - Notes of changes that the test intends to make to his will in the future, does not justify revoking part of the will.22  Henwick v The Master: - Sec 2A was refused, because there was insufficient proof test wished to revoke his will, rather instructions from his wife. - Pause for reflection pg 93.  Sec 2A cannot be used to give legal effect to an oral revocation with relation to Sec 2A (a) + (b).  Will a copy of the test’s will suffice? - Webster v The Master: - Test had made changes on a copy of his will to show his attorney how to change original. - Sec 2A(a): cannot be revoked if chang3esmade on copy, not original. - Sec 2A(b): can be revoked according to Sec 2A(b).  Marais v The Master (study) - Court interpreting the common law requirement for the revocation of wills, treated acts of symbolic destruction carried out on a copy of the will as sufficient to revoke a will, because they showed what the test would have done to his original will, had it been in his possession.  Courts have more leeway when they follow common law rules, than the statutory provisions.  Stature, a “will” is : original and not the copy, referred to in Sec 2A (a) + (b).  Study Oliver case pg 94 and 95 STUDY UNIT 7 CAPACITY TO INHERIT PERSONS CAPABLE OF INHERITING: NATURAL PERSONS  Every natural person is capable of acquiring a vested right to an inheritance.  Don’t confuse vested right with right to enjoy inheritance. MAJOR BENEFICIARY WITH SOUND MIND WITH LEGAL STANDING:  A major, of sound mind, who is not insolvent and does not repudiate an inheritance will acquire a vested right to an unconditional inheritance and exercise unrestricted enjoyment of the inheritance. MINOR BENEFICIARY:  Has capacity to inherit, but ability to enjoy inheritance is restricted.  Inherited property will be administered for the benefit of the minor by the minor’s guardian, with the office of the Master of HC exercising supervisory function.  Difference in the way moveable and immoveable property will be administered.  MOVEABLE: minor will acquire vested right when deceased dies. - Minor dies after deceased, property forms part of minor’s estate and dissolves accordingly, unless deceased’s will indicated otherwise.23 - Property will be delivered to minor’s guardian, who will have to ensure that the property is used for the minor’s benefit or kept safely for minor’s future use.  Money (also moveable): minor acquires a vested right to the money, but it won’t be physically given to him. - Money won’t be deposited to minor’s guardian either. - Administration of Estate Act: Money must be placed in a “Guardian’s Fund”: administered by the office of the Master of HC. - Guardian may withdraw money to take care of minor’s maintenance. - Master may not disperse funds exceeding R100 000 without the sanction of the court.  IMMOVEABLE: not transferred to minor’s guardian, but immediately registered in minor’s name in the deeds registry. - Administration of Estates Act: the minor’s guardian, tutor or curator will administer the property until he becomes major. - If guardian / tutor / curator wants to alienate or mortgage property, authorisation must be obtained from master of HC or HC itself. - If value of property or mortgage does not exceed R100 000, then master’s authorisation will be sufficient. - If exceeds R100 000, order of HC will be necessary. - Master may authorise a mortgage not exceeding R100 000, if mortgage is necessary for the preservation or improvement of the property, or for the maintenance, education or other benefit of the minor. NASCITURUS:  Nas fiction has been interpreted as: 1. The child must have been conceived at the time of the devolution of the benefit. 2. Inheritance has to be to the advantage of the unborn child. 3. The child has to be subsequently born alive.  3. NB for fiction to become a reality.  If nasc is born alive, then dies, the nasc’s heirs will inherit intestate.  Testate inheritance: Sec 2D(1)(c) of Wills Act applies. - (1) In the interpretation of a will, unless the context otherwise indicates – - (c) any benefit allocated to the children of a person, or to the members of a class of persons, mentioned in the will shall vest in the children of that person or those members of the class of persons who are alive at the time of the devolution of the benefit, or who have already been conceived at that time and who are later born alive ….  Nasc who is conceived at the time of the devolution of a benefit, and born alive, and who inherits either under testate / intestate succession, is to all intents and purposes, in exactly the same position as a minor beneficiary.  PFR pg 103. ILLEGITIMATE CHILDREN;  Sec 192) of Intestate Succ Act and Sec 2D 910(b) of Wills Act afford illegitimate children the same status as legitimate children.24 PERSONS OF UNSOUND MIND:  Includes insane or delusional persons, as well as people who abuse drugs, alcohol or disease.  Curator bonis will administer inheritance on the beneficiary’s behalf: property will be managed as if he is a minor.  When making an application to the court to declare someone of an unsound mind, onus rests on applicant to prove on a balance of probabilities that the beneficiary is unable to administer the property in a sensible manner.  Prodigal is not of unsound mind, but such a persons ability to deal with estate is limited and would require a court appointed curator. INSOLVENTS:  Insolvent retains capacity to inherit, but property will fall into insolvent’s estate and will be administered by trustees for benefit of creditors.  Insolvent may repudiate inheritance: Wessels v De Jager. PERSONS INCAPABLE OF HERITING JURISTIC PERSONS:  Intestate Succ Act: Only natural persons can inherit.  Statute and Common Law: testator may nominate a company or CC as a beneficiary in a will.  Company or CC can repudiate inheritance.  Repudiation will have to be exercised within a reasonable time after the company acquires capacity to inherit.  Wessels v De Jager: did not decide whether company may actually repudiate if company is insolvent.  May be argued that: to repudiate the inheritance to the detriment of creditors would constitute a breach of their fiduciary duty. PERSONS DISQUALIFIED FROM INHERITING:  Beneficiaries who caused the death of the deceased or the coniunctissimi of deceased. - Can’t inherit testate or intestate. - Coniunctissimae personae or coniunctissimi Coniunctissimi are the persons closest to the deceased, namely the surviving spouse, parents and children.  “de bloedige hand neemt geen erf”: maxim is absolute: does not matter whether deceased was killed intentionally or negligently.  Can’t inherit at all.  Coniunctissimi of the deceased will not automatically be disqualified form inheriting and the Master does not have authority to disqualify him; order of court required.  PFR pg 106 INDIGNUS (UNWORTHY PERSON)25  Person who causes the unworthy death of the deceased or the coniunctissimi of the deceased is automatically considered a indignus.  Indignus not limited to killing, also applies to al ltypes of conduct against the deceased which would be viewed as despicable according to prevailing notions of public policy.  Study Taylor v Pim, pg 110.  Principles regarding indignus: 1. The indignus principle is firmly rooted in SA law by virtue of its express recognition in the common law. 2. The instances where beneficiary would be considered an indignus are referred to in the common law and public policy. 3. If a person is rendered an indignus, he will be disqualified form inheriting ito both testate and intestate. PERSONS INVOLVED IN EXECUTION PROCESS:  Sec 4A of Wills Act.  Sec 4A(1): any person who signs a will as a witness or as an amanuensis, or anyone who writes out the will, or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.  Diagrammatic summary of Sec 4A: Disqualified from inheriting because of Sec 4A(1)? Sec 4A(2)(b) Two questions: 1st QUESTION: is the disqualified beneficiary a potential intestate heir? Answer is YES, 2ND QUESTION: is the amount which the disqualified beneficiary stands to inherit equal to or less than what he would have received on intestacy? Answer is NO, Answer YES, the disqualification is lifter; there is no need to go to court for relief; the Master of the HC can make the determination. Answer NO and the beneficiary refuses to reduce the benefit to what he would have received had the deceased died intestate, One would have to apply Sec 4A(2)(c) and if that does not work, one would have to apply Sec 4A(2)(a) Sec 4A(2)(c): Master can make the determination. Sec 4A(2)(a): Application will have to be made to the HC. CONSEQUENCES OF DISQUALIFICATION:  Common Law: beneficiary disqualified ad infinitum.  Sec 2C of Wills Act + Sec 197) Intestate Suc Act provide for substitution ex lege.26 STUDY UNIT 8 FREEDOM OF TESTATION INTORDUCTION  Freedom of testation is the freedom of a person to dispose of his estate as he pleases.  Voluntas testatoris servanda est: the will of a testator has to be complied with.  HC has no authority to consent to alterations to a testator’s will against his express intention.  Court can only rectify a will in certain cases.  Few restrictions place: court will not give effect to bequests that are illegal or against public policy, or are too vague or uncertain to be enforced.  Immoveable Property Act limits the test’s freedom by limiting his powers to prohibit the alienation of immoveable property.  Constitution limits tes’s freedom by prohibiting discriminatory clauses.  Claim for maintenance also limits tes’s freedom. - Children and spouses may claim. LIMITATIONS OF FREEDOM OF TESTATION 1. STATUTORY LIMITATIONS:  Immoveable property Act: Test cannot prevent the alienation of land by means of long – term fideicommissa / other long – term provisions in his will.  Sec 6, 7, 8: such long term provisions are restricted to 2 fiddeicommissaries.  Sec 2 + 3: the court may, on application by the beneficiaries, remove any restrictions on immoveable property, if such a removal will be to the advantage of the person entitled to the property. – ex: pg 116 + 117  Sec 33(1) of General law Amendment Act: gives court power to authorise the alienation or mortgage of immoveable property which is subject to any restriction imposed by a will, when an unborn person will become entitled to the property. 2. COMMON LAW LIMITATIONS:  Conditions that are contra bonos mores: or  Against public policy.  Case on Pg 117 in this regards  Restrictions on Freedom of test according to case: 1. Public policy; - Can change as conditions change over time. - Public policy is rooted in the Constitution and the fundamental values it protects, eg: human dignity, equality, non-racist, non-sexist. 2. Equality: - Sec 9: no one may discriminate unfairly based on sec, race, ergigion etc.27 3. Unfair discrimination:  Pause for reflection: pg 118  2 types of conditions that are frequently challenged as possibly being contra bonos mores: 1. Conditions that interfere with beneficiary’s marital relationship: - Common Law: test cannot leave a benefit to a beneficiary who has never been married, on the condition that beneficiary never gets married – condition is void. - EX: De Wayer v SPCA JHB, pg 119 - Exception: If beneficiary has been married, he may not marry again – acceptable. – case on pg 119, Ex Parte Gitelson. 2. A condition to destroy someone’s marriage, contra bonos mores: - The condition will only be pro non scripto if the bequest results in the break down of the marriage just so have happened and not being the test’s wishes. - Case pg 120: Levy v Schwarts, Ex Parte Swarefelder, Barcleys Bank v Anderson. 3. It was possible under common law to place a restriction on a beneficiary with regard to whom he may marry (not into a certain religion for example). - Such clauses were attacked as being against pp, but the courts did not uphold this. - EX: Wazzerzug: condition that beneficiary not marry out of Jewish faith: court found condition was too uncertain and therefore void. - Aronson v Estate Hart: overturned Wasserzug, the court held that, should not marry a person not born in the Jewish faith, was not void for vagueness or against pp. - PFR: pg 121. CONDITIONS LIMITING A BENEFICIARY’S FREEDOM OF MOVEMENT: 1. Test may provide that a beneficiary must live in a certain place / certain property: court must give effect to such provisions if they’re nto unambiguous. - Ex Parte Higgs: In Re Estate Rangasami - Test wanted sons to all live in family house or forfeit inheritance. - Benef (sons) and widow (mother) applied for condition to be declared void, because house is too small for all families and health risk. - Court found condition not to be granted void, sons can expand the house (unfair). 2. Common law clauses requiring a beneficiary to change his name, or give the children certain names are valid. CONSTITUTIONAL LIMITATIONS:  Conditions may be declared invalid ito Constitution.  Sec 9(3): lists factors that may not be based to discriminate unfairly against a person.  Sec 9(3) read with Sec 9(4): no one may discriminate unfairly directly / indirectly against anyone based on race, gender, sex etc.  Sec 9(4) operates horizontally btw all natural and juristic persons.  Sec 18 + 21: Freedom of association, movement and residence.28 - Shows how common law limitations may be found void according to Constitution. INDIRECT LIMITATIONS: 1. MAINTENANCE OF CHILDREN: - Test may disinherit children, but; - Maintenance and education of a minor remains an obligation on the estate and does not die with the test. - Amount determined by standard of living of the child and if necessary, continues until majority. - Major unable to support himself: entitled to claim support from deceased parent’s estate. - Obligation of maintenance 1st falls on living relatives, before estate is liable. 1. MAINTENANCE OF THE SURVIVING SPOUSE: - Marriage dissolved by death: surviving spouse has claim for maintenance against the deceased estate for the provision of his reasonable maintenance needs until his death or remarriage, but; - Only insofar he is unable to provide form his own means and earnings. - Determinable reasonable maintenance: factors to take into account: 1. The amount in the estate of the deceased spouse that is available for distribution to heirs and legatees. 2. The existing and expected means, earning capacity, financial needs and obligations of the surviving spouse and the subsistence of the marriage. 3. The standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouse. - If claim of child and spouse compete, then the claims shall be reduced proportionately. MEANING OF SPOUSE:  Maintenance of Surviving Spouses Act: “spouse”: seems simple, but shift in pp requires marriages and life partnerships resulted in problem.  Act confers rights on ‘spouses’, whose husbands / wives predeceased them: but word ‘spouse’ is not defined.  Term ‘survivor’ is defined – Sec 1.  CC had to decide on meaning of ‘spouse’ and ‘survivor’ as used in Act, specifically in relation to Muslim and persons living in a permanent heterosexual life partnership.  Daniels v Campbell: - Muslim marriage according to Muslim rites: not solemnised according to marriage Act: monogamous for 30 years. - After husband’s death Master of HC claimed wife was not the deceased’s spouse according to Intestate Suc Act, because they were married under Muslim rites.  Claim for maintenance rejected under same basis. - Wife then approached court, who held that a party to a monogamous Muslim marriage is a ‘spouse’ and ‘surviving’ ito Intestate Succession Act and Surviving Spouse Act. - HASSAM V JACOBS29  Court expanded decision in Daniels v Campb