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2 Intestate succession
2.1 The law of intestate succession in general
Regulated by the Intestate Succession Act 81 of 1987.
The law of intestate succession identifies the heirs to a deceased estate when the deceased has failed to regulate
the devolution of his or her estate by will or antenuptial contract, or where it is impossible to carry out the wishes of
the deceased because the beneficiaries are unable to inherit, do not wish to inherit or are predeceased. It is possible
for a person to die completely intestate or only partly intestate.
2.2 Diagrams
M and V are married. X, the deceased, and B are children from this marriage. M also has a son (D) from his
previous marriage to Y. X is married to W and they have two of their own children (E and F) as well as an adopted
daughter, G. F is predeceased and has two children, H and I:
An intestate heir inherits by representation when he, as an heir in the direct line of descendants, replaces his
predeceased ancestor. Representation also takes place when a descendant replaces an heir who has repudiated or
who is unable to inherit. In other words, succession by representation means that a person who is related to the
deceased in a more remote degree of consanguinity is, for the purposes of intestate succession, treated as if he were
more closely related to the deceased, because he takes the place of another heir.
2.3.5 Substitution ex lege
Sections 1(6) and 1(7) provide for substitution ex lege:
Substitution takes place where an heir inherits in the place of an heir who was supposed to inherit in the first place
is unable to inherit or repudiates his benefit.
Subsection 6: if a descendant of a deceased person who, together with the surviving spouse of the deceased, is
entitled to a benefit from an intestate estate, renounces his right to receive such a benefit, it will vest in the surviving
spouse.
Subsection 7: if a person is disqualified from being an intestate heir or if he renounces his right to be such an
heir, any benefit which he would have received shall devolve as if he had died immediately before the deceased died.
This means that he can be substituted by his descendants. However, this subsection is subject to the provisions of
subsection 6.
2.3.6 Degrees of consanguinity
To determine degree of consanguinity:
1. Direct Line: each generation counts as 1 degree, i.e. father -> son = 1 degree, grandfather -> father - > son
= 2 degrees.
2. Collateral Line: count the generations from the blood relation to the nearest common ancestor of that blood
relation and the deceased, and then down to the deceased.
There is one line from X up to the parents and one line down to D, therefore X
and D are related in the second degree. Y, the son of X, is related in the third
degree to D.
In Ex parte Davies the court decided that a testamentary writing is a document which defines any one of the
three essential elements of a bequest:
1. the property bequeathed
2. the extent of the interest bequeathed, that is, ownership, usufruct, fideicommissum, et cetera
3. the beneficiary
Thus: a document which identifies any one of these three elements is a testamentary writing, and must comply
with the requirements of Act 7 of 1953 in order to be valid ( Ex parte Davies, Oosthuizen v Die Weesheer).
Both wills and codicils are testamentary writings.
Moses v Abinader: any document in the nature of a testamentary writing incorporated into a will by reference must
itself satisfy the formal requirements for a valid will.
Cases: Ex Parte Davies, Oosthuizen v Die Weesheer, Moses v Abinader.
3.2 Formalities when a testator signs his will with his own signature
Signing of the will is a requirement for the validity of the will. Can be done in 3 ways:
1. The testator himself may sign the will with his signature.
2. The testator may also sign the will by making a mark.
3. Some other person may sign the will on behalf of the testator.
3.2.1 Formalities where the testator himself signs the will with his signature
3.2.1.1 Witnesses
1. Must sign and attest the will in the presence of one another and the testator
2. Must be competent:
a. must be 14 years or older
b. must be competent to give evidence in a court of law
c. must be able to write
3. Must be present at the same time
4. May not sign by making a mark
5. Are witnessing the testator’s signature, mark or initials, which the testator has signed or acknowledged in their
presence, thus not necessary for a witness to know contents of will or the fact that they are witnessing a will
(Sterban v Dixon).
3.2.1.2 One page will
3.2.1.2.1 Testator
1. Must sign at the end of the will
2. Testator must sign the will or acknowledge that it is his signature
a. in the presence of two or more competent witnesses
b. who are present at the same time
3. Need not sign in the presence of the witnesses, as long as he acknowledges in their presence that the
signature on the will is his signature (Bosch v Nel).
3.2.1.2.2 Witnesses
1. Must sign the will
2. Do not have to sign at the end of the will
3.2.1.3 More than one page will
3.2.1.3.1 Testator
1. Must sign at the end of the wording on the last page
2. Must sign or acknowledge his signature on every preceding page
3. Must sign
a. in the presence of two or more competent witnesses
b. who are present at the same time.
4. May sign the pages preceding the last page anywhere on the page
5. Need not sign in the presence of the witnesses, as long as he acknowledges in their presence that the
signature on the will is his signature (Bosch v Nel).
3.2.1.3.2 Witnesses
1. Must sign the will
2. Normally interpreted as having to sign the last page of the will
3. Need not sign the preceding pages
3.2.1.4 The attestation clause
Normally inserted to expressly state that the will was signed by the testator in the presence of the witnesses and
that the witnesses signed in the presence of one another and the testator.
Not required by law and has evidential value only.
3.2.1.5 What constitutes a signature?
Law of Succession Amendment Act states that “sign” includes the making of initials, and “signature” has a
corresponding meaning.
Means that a testator or a witness may now sign a will with initials only.
Only a testator may sign a will by making a mark. i.e. X or thumbprint.
Mark: a thumbprint or a cross.
Signature: making of initials, printing a name in block capitals, initial letter of the testator’s Christian name
3.2.1.6 Where does a will end?
Section 2 of the Wills Act: testator is required to sign “at the end of the will”.
“The end” is at the end of the body of the will, in other words, directly below the last writing of the will ( Philip v
The Master; Tshabalala v Tshabalala)
Section 2(3) of the Wills Act, however:
1. new provision introduced by the Law of Succession Amendment Act
2. empowers the court to accept a document as a valid will even if it does not comply with all the formalities
required for the execution of wills
Commissioner of oaths:
1. may make the certificate anywhere on the will.
2. must then sign all the pages of the will on which the certificate does not appear
Kidwell v The Master: testator signed the second page of his two-page will some 13 cm below the signature of the
second witness, and 17 cm below the attestation clause. It was held that the will was invalid because of the possibility
of fraud.
3.3 Formalities where the testator signs the will by making a mark or where
another person signs the will on behalf of the testator
3.3.1 Formalities where the testator signs the will by making a mark
Testator may sign his or her will by making a mark (Ex parte Goldman and Kalmer ).
Additional requirement: Commissioner of oaths should be present when the testator makes his mark.
All other formalities re witnesses etc are the same.
3.3.1.1 The certificate
Need only to be attached to a will in two instances:
1. when the testator signs the will by making a mark
2. when another person signs the will on behalf of the testator.
Certifying officer must indicate his office as that of commissioner of oaths on the will. Failure to do so renders the
will invalid (Radley v Stopforth).
3.3.1.1.1 The contents of the certificate
Commissioner of oaths must certify:
1. that he has satisfied himself as to the identity of the testator, and
2. that the will so signed is the will of the testator.
Failure to comply with these requirements renders the will invalid.
Jennett: Certifying officer may use his own words in the certificate but must ensure that certificate contains
declaration to the effect that that he has satisfied himself of above 2 requirements.
Act contains a specimen of a certificate that may be used by the commissioner of oaths : will is not rendered
invalid merely because the specimen has not been used.
3.3.1.1.2 Where must the certificate be appended?
Commissioner of oaths may append the certificate anywhere to the will.
Must sign each page of the will where certificate does not appear and he may do this anywhere on such page/s.
3.3.1.1.3 When must the certificate be appended?
Law of Succession Amendment Act:
1. The commissioner of oaths must append the certificate as soon as possible after the testator and the witnesses
have signed the will in the commissioner’s presence.
2. Should the testator die after the will has been signed but before the commissioner of oaths has appended the
certificate, the commissioner must, as soon as possible thereafter, make or complete the certificate.
Thus seems that Act wanted to ensure that will is enacted uno contextu (in one continuous operation).
Act does not make provision for amendment of a certificate after testator’s death.
3.3.2 Formalities where some other person signs the will on behalf of the testator
If the testator directs some other person to sign his will on his behalf:
1. Other person must sign the will or acknowledge the testator’s signature at the end of the will in the presence
of the testator and two or more competent witnesses.
2. Witnesses must then, in the presence of the testator, the person signing the will, and each other’s presence,
sign and attest the will.
3. If the will consists of more than one page, the person signing on behalf of the testator must also sign all the
preceding pages in the presence of the testator and the same witnesses who are present at the same time
4. Signing of the will by the person signing on behalf of the testator and by the witnesses must take place in the
presence of the commissioner of oaths.
5. Certificate of the commissioner of oaths must be appended to the will
6. Other person signing on testator’s behalf may not sign by making a mark
3.4 The power of the court to order the Master to accept a document as a valid will
Section 2(3) of the Wills Act empowers the court to accept a document as a valid will even if it does not comply
with all the formalities required for the execution of wills.
If the court is satisfied that the document was intended to be the person’s will, the court must order the Master to
accept the document. It has no discretion.
Court’s power to condone is limited by the requirements set by section 2(3):
The court has to be satisfied that the document concerned was drafted or executed by a person:
1. who has since died, and
2. who intended the document to be his or her will.
The deceased should personally have written the document which he intended to be his will, or should have typed
it or should have personally created it in another manner. Documents that the deceased had caused to be drafted by
an attorney, bank or another third party, does not qualify for acceptance in terms of section 2(3).
NB! Cases: Bekker v Naude, Back v Master of the Supreme Court, Ex parte Williams.
Person who has since died: possible in a joint will for a section 2(3) application to serve before the court when one
testator is still alive (Theron v The Master of the High Court).
That the testator intended the document to be his or her will: the most important requirement which has to be
satisfied before a court will grant an order in terms of section 2(3) (Back v Master of the Supreme Court; Ex parte
Williams: In re Williams Estate)
3.5 Lost wills, forged wills and the onus of proof
3.5.1 Lost Wills
The fact that a will is lost does not affect the fact that the testator left a valid will.
Contents of the will may be proved by means of
1. documentary or
2. oral evidence (Nell v Talbot)
If a will was known to have been in the possession of the testator before his death but cannot be found after his
death, this raises a rebuttable presumption that he had revoked it ( Le Roux v Le Roux)
Punishment for anyone who steals, deliberately destroys, conceals, forges or damages a document purporting to
be a will = fine or seven years’ imprisonment, or both (S v Van Zyl).
Unauthorised alterations or amendments to a will are invalid ( Van Niekerk v Van Niekerk)
3.5.2 Forged wills and the onus of proof
A will which is complete and regular on the face of it is presumed to be valid until the contrary is proved (Kunz v
Swart).
Onus thus rests with the party who maintains that the will is invalid (Sterban v Dixon; Leitao v The Master;
Thakaer v Naran).
4 Amendments to wills
Two kinds of amendments may be effected to wills:
1. amendments whereby new provisions are added, and
2. amendments whereby existing provisions are removed by( i.e. deletion or erasure)
Amendment: defined in the Act as a “deletion, addition, alteration or interlineations”.
Deletion: defined in the Act as “a deletion, cancellation or obliteration in whatever manner effected, excluding a
deletion, cancellation or obliteration that contemplates the revocation of the entire will”.
Distinction must be made between
1. amendments effected before or during the execution of a will
a. governed by common law
b. all amendments are signed or initialled by the testator and attested by the same witnesses.
2. amendments effected after the execution of the will
a. governed by Section 2(1)(b) and 2(2) of Act 7 of 1953
b. formalities that must be complied with are exactly the same as those applying to the execution of a will
If there are amendments in a will, there is a rebuttable presumption that they have been made after the execution
of the will.
Section 2A: court is empowered to declare part of a will to be revoked if the testator’s intention to revoke is
apparent from the will or a separate document. A “deletion” can therefore also constitute revocation, in which case
the formalities need not be complied with.
Section 2(3): courts are empowered to declare a document a valid will although the amendments effected to it do
not comply with all the formalities for the amendment of wills
5 Revocation of wills
Will is revocable at any stage until the moment of the testator’s death.
A will is regarded as being revoked if the testator revoked it animus revocandi (with the intention to revoke it).
A will may be revoked
1. expressly
2. tacitly
3. by a change in status of the testator (may revoke certain provisions, although it does not revoke the will)
A testator cannot revoke his will orally – not even in front of witnesses
8 Vesting of benefits
8.1 Vesting
8.1.1 Two meanings of “vested rights”
Can mean:
1. when it is said that a right vests in a person, that such person is the holder of the right.
2. can be used to draw a distinction between a right that is certain and one that is conditional:
a. if a beneficiary has a vested right, it is certain that the right cannot be taken away from him;
b. if he has a contingent or conditional right, this means that the right is not yet vested in him
8.1.2 The presumption that vesting takes place on a testator’s death
When the testator dies, it is presumed that he intended the bequeathed benefit to vest in the beneficiaries at the
very moment of the testator’s death.
However, heirs do not become the owners of the property immediately on the death of the testator.
Thus: the heir gets a vested right to claim delivery or transfer of the bequeathed benefit from the executor after
the accounts have lain for inspection.
Thus: a vested personal right to claim the bequeathed property unconditionally when the accounts have been
finalised vests in the beneficiary on the death of the testator, unless the will indicates otherwise.
8.1.3 Dies cedit and dies venit
Dies cedit: the technical term used to describe the moment in time when the beneficiary acquires a vested right.
Dies venit: The time when the beneficiary’s right to claim delivery of the bequeathed benefit becomes enforceable.
If dies cedit is delayed, dies venit must be delayed too: A beneficiary cannot have a right to enjoy the property
without having a vested right.
A bequeathed asset which has vested in a beneficiary devolves upon the beneficiary’s heirs when he dies.
8.1.4 The postponement of dies cedit and dies venit
A testator may dictate in his will when he wishes dies cedit or dies venit to occur, and he may postpone either or
both of them.
Thus: possible for a testator to bequeath a benefit to a beneficiary unconditionally, but to postpone the date of
transmission of the benefit.
Dies cedit can be postponed via
1. a suspensive condition.
2. a trust
Dies venit can be postponed via
1. a suspensive time clause.
2. a trust
Power of appointment is the delegation of the testator’s power to appoint beneficiaries in his will, to someone else.
Principles regarding delegation of power of appointment affect the testator’s freedom of testation, because power
of appointment may only be granted in certain limited circumstances.
Freedom of testation is virtually unlimited, but can be limited by the testator’s intention being:
1. contra bonos mores
2. impossible
3. too vague or
4. in conflict with the law.
5. Indirectly limited by certain maintenance requirements and the provisions of the Maintenance of Surviving
Spouses Act 27 of 1990.
9.1.1 Competence of the court to make alterations to a will
The High Court has may not:
1. consent to alterations to the testator’s will by the beneficiaries under the will against the testator’s express
intention.
2. change the binding clauses of a will, even if all the beneficiaries agree to it.
The High Court may:
1. delete something from a will that was inserted by the drafter by mistake
2. add words to a will if this is necessary to give effect to the wishes of the testator by way of rectification
3. deviate from the terms of a will where circumstances since the making of a will have changed to such a degree
that it would have been impossible for the testator to have foreseen them
9.1.2 Common law and statutory limitations on freedom of testation
9.1.2.1 Statute and common law
1. The Immovable Property Act 94 of 1965 and Section 33(1) of the General Law Amendment Act 62 of 1955
gives a court the power to alter / remove restrictions on immovable property placed thereon by the testator.
2. The testator’s capacity to prohibit the alienability of land by means of long-term provisions is limited because
he may not place a restriction on alienation which lasts longer than the Immovable Property Act prescribes.
9.1.2.2 Contra bonos mores
Courts will not enforce conditions in a will which are seen as contra bonos mores: Two such conditions:
1. conditions which prohibit the beneficiary from marrying
2. conditions which force the beneficiary to live in a certain place or to change his or her name
9.1.2.2.1 Conditions which prohibit the beneficiary from marrying
Testator may not
1. leave a benefit to a person who has never been married on the condition that the he/she remains unmarried
2. place a condition, the purpose of which would be to destroy an existing marriage
Testator may:
1. prohibit someone who has been married before, to marry again
2. make it a condition of the bequest that the beneficiary may not marry a certain person or;
3. that the beneficiary may not marry a person who subscribes to a certain faith or is of a specific race
9.1.2.2.2 Conditions which force the beneficiary to live in a certain place or to change his or her name
Under common law:
1. provisions which require someone to live in a certain place or on a certain property are valid and enforceable
2. change of name clauses are valid
An onerous provision should clearly state what the testator means. If there is any doubt as to his intention, the
courts will be inclined to interpret the will so that it is not harmful to the beneficiary.
9.1.2.2.3 Power of appointment
A testator may only grant a power of appointment in certain limited instances.
9.1.3 The testator’s capacity to disinherit close relatives
9.1.3.1 Children, parents, brothers and sisters
A child (even an extramarital or a major child who cannot support himself) has the right to claim maintenance
from the deceased estates of his/her parents.
9.1.3.2 The surviving spouse
Maintenance of Surviving Spouses Act 27 of 1990: If a marriage is dissolved by death after the
commencement of this Act the survivor shall have a claim against the estate of the deceased spouse for the provision
of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefore from
his own means and earnings.
Factors taken into consideration when determining reasonable maintenance needs:
1. the amount in the estate of the deceased spouse available for distribution to heirs and legatees
2. the existing and expected means, earning capacity, financial needs and obligations of the survivor 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
A survivor and a dependant child:
1. Survivor’s claim has the same order of preference as that of a dependant child.
2. When a survivor and a child’s claim compete, those claims shall, if necessary, be reduced proportionately
3. Where there is a conflict of interests because the survivor has to institute a claim for maintenance on behalf of
a minor dependent child of the deceased spouse, the Master may defer the claim for maintenance until the
court has decided on the claim.
Special power of appointment: beneficiaries must be chosen from certain persons / a certain class of persons.
General power of appointment: implies that the grantee of the power is free to choose the beneficiaries
See Arkell v Carter re power of appointment.
11 Substitution
11.1 Direct Substitution
11.1.1 Express direct substitution
Substitution: Takes place when a testator appoints a beneficiary to inherit a benefit and, at the same time,
appoints another beneficiary to take the place of the first-mentioned heir or legatee. Substitution may take place
either in the alternative (direct substitution) or one beneficiary after another (fideicommissary substitution)
Direct substitution: one in which two or more beneficiaries are instituted in the alternative.
Can take place:
1. Where 1 or more persons are expressly nominated in a will.
2. Tacitly by legislation
Takes place where one person takes the place of another because the 1 st person:
1. has predeceased
2. is incapable of inheriting (i.e. because he or she was a witness to the will)
3. refuses to inherit (repudiate)
4. cannot take the inheritance or benefit because of the nonfulfilment of a condition attaching to the
inheritance or bequest.
Purpose:
1. avoid intestate succession in respect of the bequeathed benefit if the instituted heir or legatee does not inherit
2. serves to exclude the right of accrual
11.1.2 Direct substitution implied by law (ex lege) – section 2c of the wills act 7 of 1953
Substitution ex lege applies where section 2C of the Wills Act 7 of 1953 comes into operation.
Effect of this section:
1. if a testator appoints a descendant of his as a beneficiary, and that descendant
a. renounces his benefit, or
b. predeceases the testator, or
c. is disqualified from inheriting,
2. the testator’s
a. surviving spouse or
b. the descendants of the instituted descendant
3. are impliedly directly substituted for such descendant who does not inherit.
There is a massive amount of stuff further re this, but I’ll put money on them not asking this in the exam.
Purpose: to give a testator the opportunity of nominating various successors to inherit the same benefit in
succession, that is, one after the other
Difference between fideicommissary substitution and direct substitution:
1. in a fideicommissum, there is always a succession of beneficiaries
2. in direct substitution either one beneficiary or the other inherits – they do not succeed each other
11.2.1 Presumption in favour of direct, as opposed to fideicommissary, substitution
Nature of fideicommissa is burdensome:
1. they limit the ownership of the fiduciary as well as all the fideicommissaries except the eventual one.
2. our common law is thus not in favour of fideicommissa, which it considers to place unnecessary burdens on the
beneficiaries of a testator
3. thus a presumption against fideicommissary substitution consequently developed
Presumption against fideicommissary substitution:
1. only exists where there is doubt as to whether a testator intended direct or fideicommissary substitution
2. does not apply where there is doubt about whether a testator intended a fideicommissum or a usufruct, as a
usufruct is equally burdensome upon the beneficiaries.
12 The fideicommissum
12.1 Description of a fideicommissum and limitations
12.1.1 Definition of fideicommissum
When a testator creates a fideicommissum, he leaves property (almost always material, corporeal things) to a
fiduciary, subject to the burden of handing it over in full ownership to a fideicommissary at a certain time or upon the
fulfillment of a condition.
There are always at least three people involved in a fideicommissum, namely:
1. the testator
2. the fiduciary and
3. the fideicommissary
The fiduciary is the first person to receive the property, and he has to hand it over to the second person to receive
the property. This person is called the fideicommissary.
Where several fideicommissaries have been nominated to inherit one after the other, each fideicommissary
becomes owner of the fideicommissary property subject to the burden of handing it over to the next, while the last
fideicommissary becomes full owner.
Subgroups of fideicommissa:
1. conditional fideicommissa,
2. fideicommissa with the si sine liberis clause, and
3. fideicommissa residui
12.1.2 Restrictions on fideicommissa
Immovable Property Act 94 of 1965 restricts all fideicommissa of immovables to a maximum of two substitutions
after the original fiduciary has become owner.
Fideicommissa over movable property are still effective for as long as the testator wishes.
12.1.3 The power of the court to remove or modify restrictions on immovable property
At common law, sale or mortgage may be authorized for
1. reasons of necessity and
2. on the ground of the consent of all beneficiaries.
Court also has the statutory power to remove or modify burdens on property, including fideicommissa, by virtue of
Act 94 of 1965:
1. Section 2(1): allows a beneficiary who has an interest in immovable property to apply to court for removal or
modification of the restriction, on the ground that such removal or modification will be to the advantage of
any beneficiaries, present or future, born or unborn, certain or uncertain.
2. Section 3: if the court finds that
a. the shares of the immovable property are too small for beneficial occupation, or
b. because beneficial use is prevented by a prohibition against subdivision, or
c. because circumstances have arisen which the testator did not foresee, the court may remove or modify
any such restriction or give any other appropriate order
3. Section 3(1)(d): the court may remove or modify a restriction if “it will be in the public interest or in the
interests of the persons referred to in sub-section (1) of section two, to do so”.
13 The trust
13.1 The trust
13.1.1 The trust as legal concept
Treuhand: to be the entitled party, not for oneself but for another or for a particular impersonal purpose.
Testator uses a trust where he wishes:
1. to benefit someone but, in order to protect the beneficiary from himself, thinks it wise to entrust the ownership
and control of the assets that must be managed in the interests of the beneficiary to a third party.
2. to advance some impersonal cause
13.1.2 The origin of the trust in South African law
The idea of a trust was adopted by our law more than a century ago from English law.
The terms “trust” and “trustee” were also adopted, but not the English trust law as such.
Our own trust law has developed in our legal practice court decisions and legislation within the framework of
Roman-Dutch law.
13.1.3 Types of trusts
1. trust inter vivos (trusts established between living persons)
2. trust mortis causa (created by will, comes into effect on the death of the founder)
a. normal/private trusts (includes trust for impersonal use)
i. where the trustee is the owner
b. bewind trusts
i. where the beneficiaries are the owners
13.1.4 Trusts in terms of the Trust Property Control Act 57 of 1988
13.1.4.1 Definition of a trust
– the arrangement through which the ownership in property of one person is by virtue of a trust instrument made
over or bequeathed –
1. to another person, the trustee, in whole or in part, to be administered or disposed of according to the
provisions of the trust instrument for the benefit of the person or class of persons designated in the trust
instrument or for the achievement of the object stated in the trust instrument; or
2. to the beneficiaries designated in the trust instrument, which property is placed under the control of another
person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for
the benefit of the person or class of persons designated in the trust instrument or for the achievement of the
object stated in the trust instrument,
13.1.4.2 The establishment of a trust
Trust must be created by means of a “trust instrument”.
Trust instrument: a written agreement, a testamentary writing or a court order in terms of which a trust was
created (s 1). In terms of section 2, a document which represents the reduction to writing of an oral agreement by
which a trust was created or varied, shall also be deemed to be a trust instrument.
Trust Property Control Act is not applicable to:
1. trusts which have been exempted by any other Act from the application of the Trust Moneys Protection Act 34
of 1934
2. a scheme in terms of the Participation Bonds Act 55 of 1981.
3. oral trusts
Requirements for a trust to be established validly:
1. The founder must intend to create a trust:
a. he must have the capacity to act and to make a will if the trust is embodied in a will, and
b. he must have the intention of creating a trust.
2. The trust must be created by means of
a. a written agreement,
b. a testamentary writing or
c. a court order
3. The trust property must be reasonably clearly defined. The founder may leave a measure of freedom to
the trustees in this regard without rendering the trust invalid.
4. The trust must be established for an object or a purpose: 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.
a. Before Braun v Blann and Botha founder of a trust could not leave the determination of the beneficiaries
to the trustee except in the case of a charitable trust.
b. After the Braun case, any trustee can be authorised to appoint beneficiaries from a specified class of
persons designated by the testator
c. object or purpose of the trust may not conflict with a particular legal rule, boni mores or public policy
There must always be a beneficiary for whose benefit the trust exists: if the trust cannot be implemented owing to
the absence of a trust beneficiary, the trust property is administered like the remainder of the founder’s estate
13.1.4.4.2 The nature of the beneficiary’s rights
The beneficiary’s rights under a trust are of a personal nature.
A beneficiary therefore has a personal right or claim against the trustee.
13.1.4.5 The insolvency of the trustee
Trust Property Control Act, Section 12: trust property shall not form part of the personal estate of the trustee
except in so far as he, as trust beneficiary, is entitled to the trust property.
Thus the trust beneficiaries will be protected on the insolvency of the trustee.
13.1.5 The trust for an impersonal purpose
Trust for an impersonal purpose: a trust which is intended to be used for charitable purposes.
Known as benefits ad pias causas.
Differ from ordinary trusts in the following respects:
1. Bequests are benevolently interpreted by the courts: are not allowed to fail “merely because of vagueness
of language in the extent of their application or because the objects of the trust are stated in wide terms”
2. a power of appointment is permissible in the case of a charitable trust.
3. Where it is impossible to carry out the will of the testator to the letter, the court will allow the trust to be
carried out “cy près”, or as nearly as possible.
13.1.6 The variation of trust provisions
Trust Property Control Act expressly the court the power to vary or delete the provisions of a trust where a trust
instrument contains any provision which brings about consequences which in the court’s opinion the founder did not
foresee or contemplate and which
1. hampers the achievement of the objects of the founder,
2. prejudices the interests of beneficiaries, or
3. is in conflict with public interest
Whenever a trust beneficiary under tutorship or curatorship becomes entitled to a benefit in terms of a trust
instrument, the tutor or curator of such beneficiary may, on behalf of the beneficiary, agree to the amendment of
the provisions of the trust instrument, provided such amendment is to the benefit of the beneficiary.
13.1.7 The termination of a trust
A trust terminates in the following circumstances:
1. If the object for which the trust was founded is realised, the trust comes to an end.
2. If the trust becomes impossible as a result of the destruction of the trust property without fault on the part
of the trustee.
3. If there is no beneficiary or if the beneficiary cannot be established with reasonable certainty.
4. If the court terminates the trust
14.2 Massing
14.2.1 Definition of massing
Covered by section 37 of Act 66 of 1965.
Massing takes place when the whole or portions of the estates of various testators are consolidated into one
economic unit for the purposes of a testamentary disposition by the testators jointly.
Where a testator has disposed of only his own estate in his will, there can never be any question of massing.
Motive for massing:
1. ensure that the survivor will continue to be in control of the massed estates during his or her lifetime and thus
enjoy the same standard of living as during the first dying testator's lifetime
2. protect the children's interests, and at the same time to provide for the survivor
Section 37 of Act 66 of 1965 protects the ultimate beneficiaries in the case of the insolvency of the survivor. It
gives them the same rights in respect of the half share of the communal estate which belongs to the survivor as to
that of the first-dying.
If, on the death of the first-dying testator, the surviving testator elects to take no benefit under such a will:
1. The surviving testator may not receive any benefit whatsoever under the will from the estate of the first-dying
testator
2. The surviving testator retains his or her own estate and may dispose of it in any way he or she wishes
3. The mutual will, as the will of the first-dying testator, relates to the estate of the first-dying testator only,
subject to the provision that the surviving testator may not receive any benefit from the estate of the first-
dying testator.
Massing may be made conditional: i.e. where a will creates a massing, but subject to a condition that should the
survivor remarry, he / she will lose all benefits.
Massing can possibly affect only a portion of a person's estate. Notwithstanding the fact that massing has
taken place, the survivor is entitled to dispose of property acquired after the death of the first-dying in a separate
will, unless the parties have in express terms deprived the survivor of this right.
14.2.3 Massing and the doctrine of election
Election: takes place when a testator leaves a benefit to a beneficiary and simultaneously imposes a burden on
him.
The beneficiary is then put to his election:
1. he may accept the benefit (adiation),
a. but he must then also carry out the provisions of the will that are detrimental to him.
2. he is free to reject any provision which he may not like (repudiation),
a. but then he may not accept any benefit under that will.
Doctrine of election: where strings are attached by a testator to a testamentary benefit, the beneficiary cannot
take the benefit and ignore the strings.
Doctrine only applies if a burden (such as a modus or condition) has been placed on the beneficiary by the testator