PVL2602 - Law Of Succession exam pack latest 2021.

PVL2602 - Law Of Succession exam pack latest 2021.1) Wanda and Xavier were married out of community of property therefore Xavier does not inherit anything from Wanda but only the surviving children of the marriage Wanda’s estate is R500 000 plus accrual form Xavier R100 000 getting R600 000 Children to inherit ; Ben although born out of wedlock + Francis + Diana + Evert R600 000 / 4 children = R150 000 ….Each child will inherit this amount . Gerald cannot inherit anything because Francis his father is alive 2.1 heir is a beneficiary who inherits a testator’s entire estate, a portion or residue Legatee; This concept applies when a testator leaves a specific benefit, for example a house or a farm, to a beneficiary, the beneficiary of which is a legatee 2.2 Amendment deletion, addition ,alteration by the testator whereas takes paces when a court adds, deletes or changes something in a will because the testator made a mistake that does not reflect his or her intentions correctly 2.3 What is a mutual will? A mutual will is a will in which two or more testators benefit each other mutually. It is also a joint will. Whereas a joint will where two or more testators have set out their respective wills in the same document thus the parties do not appoint each other as beneficiaries. 2.4 Distinguish between and estate and the residue of an estate. (4) Estate = A testator's estate consists of the assets and liabilities. Residue of an estate = Refers to that part of the deceased's estate which remains after the payment of funeral expenses, administration costs, tax, the testator's debts and the legacies. 3.1 If testator signed with a thumb print – in other words, he made a mark. When a testator signs with a mark the requirements of s 2(1)(a)(v) must be met. This means that a commissioner of oaths must append a certificate to the will certifying that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator. Since the certificate is absent, the will is not valid. 4.1 Mention the requirements for the establishment of a valid trust. (6) For a trust to be valid, the following requirements must be met: 1. The founder must intend to create a trust. 2. The creation of the trust must be by means of a written agreement, a testamentary writing or a court order. 3. The trust property must be reasonably clearly defined. 4. The trust must be established for an object of purpose, that is the trust property must be intended to be applied for the benefit of a specific or determinable person(s), or with an eye to a determined or determinable aim. The trustee may be authorised to appoint beneficiaries from a specified class of persons designated by the testator. The object or purpose of the trust may not conflict with a particular legal rule, boni mores or public policy. 4.2 Write a note on the variation of trust provisions by the court. Include a discussion of Minister of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C) in your answer. (15) Section 13 of the Trust Property Control Act 57 of 1988 extends the power of the 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 the trust did not contemplate or foresee (1) and which (1) hampers the achievement of the objects of the founder,(1) or (2) prejudices the interests of the beneficiaries, (1) or (3) is in conflict with the public interest,(1) the court may, on the 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 the court deems just.(1) This may include an order whereby trust property is substituted for other property, as well as an order terminating the trust . Ex parte President of the Conference of the Methodist Church of Southern Africa: In re William Marsh Will Trust.(1) In 1899 the testator left his estate in trust to his son to be used for the establishment of homes for "destitute white children". The court decided that the testator did not foresee that economic circumstances would change to such an extent that the number of white destitute children would become so few that his charitable intention would be frustrated. The court also decided that it would not be against public policy to accept children of all races into these homes. The court accordingly ordered the rescision of the word "white" from the will.(1) It is no longer a requirement that there should have been a change of circumstances unforeseen by the founder, but the Act does require that the consequences of the trust provisions should have been unforeseen by the testator Therefore, if the trust provisions prejudice the interests of the beneficiaries, but this has been foreseen by the founder, the court cannot vary the trust provisions.(1) In Minister of Education and Another v Syfrets Trust Ltd NO 2006 (4) SA 205 (C) the court had to decide on the validity of a trust. The trust, created in 1920, provided that only white, non-Jewish men may be beneficiaries of the trust. (1) The validity of these provisions were challenged in 2002. The applicants based their application for an order deleting the discriminatory provisions on three Grounds: (a) Section 13 of the Trust Property Control Act (1) (b) Common law, which prohibits bequests that are illegal, immoral or contrary to public policy (ie contra bonos mores). (1) (c) The Constitution, specifically the equality and anti-discriminatory provisions of section 9. (1) The Court granted the application, because the provision was considered to be contra bono mores.(1) The Court held: The principle of freedom of testation cannot be ignored, but there are limits to freedom of testation. One of these limits is the common law principle that provisions that are contra bonos mores may be deleted. (1) reflected in the foundational constitutional values of non-racialism, non-sexism and equality.(1) The Court may order the deletion of discriminatory provisions of a will based on its common law power to delete provisions in a will that are against public policy.(1) Not all clauses in wills or trust deeds that differentiate between different groups of people are invalid. It is only where the differentiation can be considered to be unfair discrimination on the grounds of race, gender and faith that they can be held invalid and be deleted.(1) = (17) (max 15)