PVL2602 TEST BANK

Question 1 Nimoy and Vickie were married in community of property. On 2 March 2011, Nimoy died intestate. Nimoy is survived by:  his wife, Vickie  his adopted brother, Barry;  two granddaughters, Winnie and Lisa (the daughters of Nimoy‟s predeceased son, Celestine. Celestine was born of a previous marriage between Nimoy and Grace);  an extra-marital son, Gary;  Harry and Isaac, the sons of Gary (Harry and Isaac were born of the marriage between Gary and Zinzi). At his death, the joint estate of Nimoy and Vickie amounted to R360 000 (net value after all debts of estate have been paid). Distribute Nimoy‟s estate. (10) ANSWER: From Nimoy‟s relations we can exclude the following persons for the purposes of intestate succession: 1) Barry – although he is the deceased‟s adopted brother and is a potential intestate heir since his adoption has the effect of treating him as if he were a natural collateral relation of the deceased, the fact that the deceased‟s has closer relations, excludes Barry from inheriting.(1) 2) The deceased‟s grandsons Harry and Isaac – they will not inherit because their father Gary is still alive. (1) Distribution of the estate: 3) The first step is to divide the joint estate equally between the spouses who was married in community of property. Each spouse obtains 50% in terms of the matrimonial property regime. Thus R360 000 ÷ 2 = R180 000. Vickie immediately receives R180 000 as this is the share that she entitled to in terms of matrimonial property law. (1) [Note: She does not inherit this amount, but receives it in terms of matrimonial property law.] 4) In addition to this, Vickie is also entitled to inherit in terms of the Intestate Succession Act. She inherits either a child‟s portion or the ministerial amount (at present R125 000) whichever is the greater.(1) [See section 1(1)(c) of the Act.] 5) According to the Act, a child‟s portion is obtained by dividing the deceased estate by the number of children who have survived the deceased (1) 6) and the children who have predeceased the deceased but are survived by their descendants (1) 7) Plus the number of spouses (1). [The explanation of this calculation is very important and earns 3 marks for a completely correct explanation or no marks if it is partially correct. Note that it is not only “the number of children of the deceased”...] 8) Thus: A child‟s share is R180 000 † 3 = R60 000. (1) [Note: The estate is divided by 3 because there are two children who survived the deceased or who left descendants, namely Gary and Celestine, and there is one spouse, Vickie. Thus: 2 2+1 = 3] Therefore Vickie will inherit R125 000 (because this is greater than the child‟s portion which is R 60 000). (1) 9) After the spouse‟s share is deducted, the residue of the deceased estate is divided equally between the deceased‟s stirpes. Each child and his or her descendants form a stirps. 10) The residue is: R180 000 - R125 000 = R55 000 (1) 11) Thus: R55 000 ÷ 2 (because there are 2 stirpes, Celestine & Gary) = R27 500 per stirpes. (1) 12) Thus Gary receives R27 500 and Winnie and Lisa, who are Celestine‟s representative heirs, receive R13 750 each. (1) QUESTION 2 2.1 While on a business trip, Tsepo met Yandi and had an affair with her. She threatened to tell his wife, Bongile, unless he made a will leaving his entire estate to her. In order to prevent his wife from finding out about the affair, he made a new will in which he bequeathed his entire estate to Yandi. Discuss the validity of the will in light of the animus testandi requirement. (3) ANSWER: 1) The will was made under duress and the testator therefore did not have the necessary animus testandi. (1) 2) It may also be argued that, even if he did have the animus to make a will, he did not express his will freely and therefore the will is also invalid on this ground. (1) 3) See Spies v Smith / Kirsten v Bailey (1) 2.2 After Tsepo‟s death, Bongile found out about the affair and was so depressed that she wrote a suicide note in which she provided: “I want my entire estate to go to my grandparents Joe and Sophy.” She wrote her nickname “Bungy” at the end of this letter and committed suicide. She is survived by her fifteen year old twin daughters, Sara and Ruth and an eighteen year old adopted son, Reggie. Answer the following questions on these facts: (a) Did Bongile “sign” the document as required by the Wills Act 7 of 1953? Explain your answer. (3) ANSWER: 1) The Wills Act requires that a testator must sign his or her will. It does not require a person to sign with his or her ordinary or customary signature. (1) 2) “Sign” includes the accustomed mode of signature as well as any other mode adopted by him or her to write or sign his or her name. It may or may not be his or her full name. (1) 3) However, a “signature” does not include a mark. (1) [A mark will, for example, be an “X” used by an illeterate person who cannot write his or her name.] 4) The use of a nickname is not the same as making a mark. The use of the nickname can be seen as a “signature”. The name “Bungy” can thus be seen as Bongile‟s signature. (1) (b) Does Bongile’s suicide note comply with all the testamentary formalities for a valid will? Explain your answer. (3) 3 ANSWER: 1) The testator signed, as required by the Act, at the end of the will (1) 2) with her signature. (1) 3) The two required witnesses were, however, absent (1) 4) and therefore this document is not a valid will as it does not comply with all the formalities for a valid will. (1) (c) Suppose the document is not a valid will. What advice can you give Bongile’s grandparents that will enable them to inherit under the document? Discuss with reference to authority. (8) ANSWER: 1) They can apply to the High Court in terms of section 2(3) of the Wills Act (1) 2) for an order instructing the Master to accept the document as a valid will. (1) 3) The court will do so if it is satisfied that the document was drafted or executed (1) 4) by a person who died in the meantime, (1) 5) and who intended that document to be his or her will, (1) 6) although it does not comply with all the formalities for the execution of wills – Ex parte Maurice. (1) 7) In Bekker v Naude (1) 8) the court held that it is required that the deceased person must have drafted the document himself or herself – ie personal conduct is required. (1) (d) Assume you are unable to help Bongile’s grandparents to inherit in terms of the suicide note. Who will inherit Bongile’s estate? Give reasons for your answer. (3) ANSWER: 1) Bongile will then die intestate, since there is not a valid will (1). 2) Sara and Ruth, her biological children, and Reggie, her adopted child, will inherit 3) – an adopted child is deemed to be the natural child of the adoptive parent (1). Question 1 The refusal of a beneficiary to accept a benefit from a deceased‟s estate is known as: 1) Adiation 2) Rejection 3) Repudiation Answer is 3 4) Restitution Question 2 T‟s will contains the following provision: “I bequeath my house to my sister, S. S must pay R125 000 to my daughter D.” What name is given to the amount of money that S must pay to D? 1) Bequest price Answer is 1 2) Child‟s share 3) Legacy