LAW OF SUCCESSION- Test and Exam preparation Compiled by Konfizoh

Distinguish a modus from a condition in a will. A condition is a provision in a will in terms of which the existence or continuation of the beneficiarys right is made subject to the occurrence or non-occurrence of the future event. A modus is a device by which a beneficiary is told how to deal with their property, i.e. that it must be devoted to a certain purpose, or used in a certain manner. The difference between a modus and a suspensive condition is that when a modus is used, the rights of the beneficiary are not postponed, unlike a suspensive condition In cases where there is doubt whether a provision in a will is a modus or a suspensive condition, there is a presumption that it is a modus since a modus is unconditional - Jewish Colonial Trust Ltd v Estate Nathan In a modus, vesting takes place in the beneficiary on the death of the testator, while in suspensive condition, the beneficiary gets no vested rights before the condition has been fulfilled.

Question

Tebogo, a well-educated teacher, approaches you to draft a will for him. Advise him on the formalities that have to be complied with in order for the will to be valid. (5)

For a will to be valid it must comply with the formalities required by section 2 (1) (a) of the Wills Act 7 of 1953.The testator must sign the will at the end thereof. The end of the will is at the end of the body of the will, in other words, directly below the last wording of the will. (Kidwell v The Master 1983 (1) SA 509 (E)) (1).

The testator must sign the will or acknowledge his signature in the presence of two or more competent witnesses (1) who are present at the same time. (1) In order to qualify as a competent witness, the witness must be at least 14 years old and competent to give evidence in a court of law. (1)

The same two witnesses must sign or attest the will in the presence of one another and in the presence of the testator. (1)

Qn. Write a brief explanatory note on the Cy pres doctrine with reference to authority. (5) The Cy pres doctrine literally means as nearly as possible. It is has been adopted from English law, and has been accepted in our law by the court Marks v Estate Gluckman. This doctrine applied by courts where the objective of the charitable trust cannot be realised. A good example is where money is left for an institution which no longer exists, or which never existed.

In such a case, the court by applying this doctrine, will substitute the charitable institution named in the will by another charitable institution as near as possible to the one named in the Will by the testator

In terms of the Trust Property Control Act, the Courts now have general power to vary trust provisions under certain circumstances. In this respect,It is possible that in the appropriate circumstances the Courts will use that power rather than the cy pres doctrine

In Ex parte Blum, ~ testator left a bequest to a charity named the Jewish war orphans fund, which had never existed. the Court held that the testators intention for the bequest was to benefit Jewish war orphans thus the bequest was granted to another institution for Jewish Soldiers children.

In Ex parte Essery, Testator made a bequest to the Rheumatic Research Fund where there was no institute bearing such name. The court held that the intention of the testator was to benefit an institution which employs funds for research relating to rheumatism. Another institution with the same objective was granted a bequest.

In In Ex parte Estate Hofmeyr, the court held that a pre-requisite for the application of the doctrine of cy prs is the practical impossibility, though not in an absolute sense to carry out the charitable intention of the testator. The court therefore held that it was still possible to use all the funds emanating from the trust for the purpose indicated by the testatrix. The Doctrine has therefore been rejected.

With full reference to authority, write a note on Race and Faith clauses in wills.

Qn. Section 2(3) of the Wills Act 7 of 1953 permits a court to order the Master to accept a document as a will notwithstanding non-compliance with the statutory formalities. Discuss this section of the Act and how it has been interpreted by the courts. A will is not a valid will if it does not comply with the formalities for a valid will in terms of section 2 of the Wills Act. In Kidwell v The Master, It was held that the will was invalid because it did not comply with the formality regarding signing a Will. However, now, In terms of s2(3) of the Wills Act, courts are empowered to order the Master to accept a document as a valid even if it does not comply with all the formalities for the execution of a will. As articulated by the court in paragraph 14 in Van Merwe v The Master, the purpose of this section is to ensuring that failure to comply with the formalities does not defeat or frustrate the genuine intention of the testator. Absence of a signature was therefore held not to be an absolute bar to the execution of the Will in question. To condone non-compliance, courts should however be satisfied that the court in Ex parte Maurice stated that the following elements must be satisfied. the document was drafted by a person Ex parte Williams - there is nothing in section 2(3) to indicate that the testator has to draft the document personally. A will, drawn up by someone else on behalf of the testator can suffice. However, the SCA in Bekker v Naude expressed the view that the document has to be drafted by the testator himself. Untill today, this case is the leading authority.

(i)

(ii)

who has died in the meantime The person who had drafted the document must have died since the drafting took place. However, the court in Theron v The Master, the court held that where there is a joint will, it is possible for the court to order the Master to accept the will in terms of section 2(3) despite the fact that one of the testators will be still alive. who intended that document to be his or her will. Court has to be satisfied that the testator intended the document to be his or her will. In Van Wetten v Bosch the court articulated that in attempting to ascertain the intention of the deceased, the court should, have regard to the words and language used. If an ambiguity or uncertainty arises, then it must look at the circumstances surrounding the drafting of the document.

(iii)

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

Toby committed suicide on 6 September 2010. Toby was a university lecturer who had been diagnosed with cancer six months before his death. At the time of his death, Toby was involved in a relationship with Janet but they had not formalised their partnership even though they had lived together for eleven years. Toby was previously married and left a daughter, Tamlyn, who was named in his will as the sole heiress to his Estate

On the day of Tobys suicide the Police were summoned to his place of work and when they entered Tobys office they discovered him slumped over his desk after having shot himself. On the desk the Police found a handwritten suicide note that read as follows: Dearest Janet Thanks for all you have done for me and Im sorry that Ive been so miserable lately but my depression and health have made my life intolerable. Please forgive me for what I am about to do but I can no longer live in this way. Janet, you can have my house and if you decide to sell it you will have plenty of money for your future needs. I also want you to have the money in my Absa cheque account (there is about R500 000 in it). This will help you and you will not need to battle. My will is in the drawer next to our bed. I leave everything else to Tamlyn as stated in my will. With all my love, Toby (6/9/2010) Janet consults you a few days after Tobys death. She hands you copies of Tobys will and the suicide note. Janet is of the view that the contents of the suicide note amount to an amendment of Tobys will Advise Janet with reference to authority.

The issue on the facts of this question is that of whether the suicide note written by the deceased was intended by him to be his will as contemplated by section 2(3) of the Wills Act 7 of 1953.

Section 2(3) of the Wills Act provides that 'If a Court is satisfied that a document or the amendment of a document drafted by a person who has died was intended to be his will or an amendment of his will, the court shall order the Master to accept that document even if it does not comply with all the formalities stated in sec 2 of the Act.

if the document in issue is shown to have been drafted or executed by a person since deceased who intended the document in issue to be his or her will, or an amendment of his or her will, the court must direct the Master of the High Court to accept that document as a will or an amendment to it

In order to ascertain whether the deceased intended the suicide note to be an amendment to his will, the court in Van Wetten v Bosch held that the court should, have regard to the words and language used. If an ambiguity or uncertainty arises, then it must look at the circumstances surrounding the drafting of the document.

The facts of this question are similar to those in Smith v Parsons in which the SCA held that the deceased wrote, and at least signed and dated the note. He had a will in the safe. It follows that he probably knew that formalities are required for making a will. For this reasons, it is clear that he clearly intended the note to be an amendment to his will.

In the note the deceased wrote that Janet, you can have my house and if you decide to sell it you will have plenty of money for your future needs..' In this statement, the deceased is giving clear instructions on what should happen to his house. There is no ambiguity in the statement. The house would devolve on the appellant on his death.

I am satisfied that the suicide note was intended by the deceased to be an amendment of his will as contemplated by s 2(3) of the Wills Act.

X dies intestate and leaves the following relatives:

His wife W to whom he was married in community of property, his son S, his mother M and his full brother B. The total value of the estate is R400 000.

Explain the devolution of X's estate, giving reasons for your calculations. (6) The joint estate of X and W has to be divided into two halves at Xs death in terms of matrimonial property law, since the marriage was in community of property (R400 000 2 = R200 000). Xs estate amounts to R200 000. (1) (2) The spouse inherits either a childs share or statutory determined minimum amount of R125 000, whichever is the greater. (1). (3) A childs share is determined by dividing the value of the estate by the number of children who either survived the deceased or who predeceased him but are survived by descendants, plus the number of spouses.(1) (4) Therefore, in this case a childs share is R200 000 2 (S + one) = R100 000. W inherits R125 000 since it is more than R100 000.(1) S inherits the residue (R 200 000 R 125 000) = R75 000. (1) M and B inherit nothing because M is an ascendant and B is a relative in the collateral line and they are excluded by the child and the spouse.

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 .

in 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) The Constitution, specifically the equality and anti-discriminatory provisions of section 9. 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) Provisions that constitute unfair discrimination are contrary to public policy, as reflected in the foundational constitutional values of non-racialism, nonsexism 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)

Discuss the formalities prescribed by section 2(1)(a) of the Wills Act 7 of 1953 which have to be complied with in order for a will to be valid if a testator signs a will, consisting of two pages, with his or her mark. (20)

If the will consists of two pages and the testator signs with a mark, the following formalities are prescribed by section 2(1)(a) of the Wills Act 7 of 1953:

The testator must make his or her mark on the last page of the will at the end of the will, (1) and on the first page, anywhere on that page. (1) The end of the will is at the end of the body of the will, in other words, directly below the last words of the will. (1) (Philip v The Master see- Kidwell v The Master)(1).

The testator must make his or her mark or acknowledge it (1) in the presence of two or more (1) competent witnesses. In order to qualify as a competent witness, the witness must be at least 14 years old or competent to give evidence in a court of law.

The same two witnesses must sign or attest the will (1) in the presence of one another (Oosthuizen v Die Weesheer) and in the presence of the testator and the commissioner

The commissioner of oaths cannot be counted as one of the two witnesses. (1)

The witnesses may not sign by making a mark, but they may sign by writing their initials

The witnesses normally sign at the bottom of the last page of the will, but in Liebenberg v The Master the court held that the will was valid although the witnesses had signed at the top of the last page.

The witnesses need not sign the previous page of the will The witnesses need not know the contents of the will. It is not even necessary for them to know that they are witnessing a will.

The only requirement is that they should know that they are witnessing the testator's signature. Where the testator signs with a mark, a commissioner

of oaths must be present during the execution of the will and that he or she must attach a certificate to the will. The commissioner of oaths may append the certificate anywhere to the will. In the certificate it must be certified that the commissioner has satisfied as to the identity of the testator and that the will signed is the will of the testator. In Radley v Stopforth it was held that the certifying officer must indicate his office as that of commissioner of oaths Should the testator die after the will was been signed, but before the commissioner of oaths had appended the certificate, the commissioner must, as soon as possible thereafter, make or complete the certificate.