INTRODUCTION
OVERVIEW: WHAT HAPPENS WHEN A PERSON DIES
FALLING OPEN OF THE ESTATE
• Generally, when a person dies and becomes the deceased, the estate falls open (delatio) to
beneficiaries.
→ Delatio is often considered the moment the beneficiaries right vests in them (dies cedit).
→ HOWEVER this doesn’t mean that the vested right is enforceable immediately – the right
only becomes enforceable (dies venit) at the end of the administration process.
• Note that before death, a beneficiary only has an expectation to benefit (spes) not a right.
VESTING OF RIGHTS
1) Testate succession:
• Dies cedit and venit depend on the intention of the deceased’s will.
• Situations:
a) If vesting isn’t postponed by a condition, then theoretically dies cedit and venit
coincide (in practice there will be a time lapse). “pure bequest”
b) If vesting is postponed by a condition, then dies cedit precedes venit, and venit will
only be achieved once the condition is met. “conditional bequest”
• Vesting will be dependent on conditions, clauses and legal institutions (trusts, usufructs,
fideicommissums, substitutions etc.).
2) Intestate succession:
• Dies cedit and venit occur when the person dies.
• EXCEPTION: If a person dies testate, but the estate later becomes intestate = dies cedit
and venit occur ONLY when the will (testacy) becomes inoperative.
HARRIS V ASSUMED ADMINISTRATOR ESTATE LATE LESLIE MACGREGOR (1987) 2 All SA 321 (A)
FACTS • Harris (H), was married OCOP to Leslie MacGregor (L) who died in 1943.
• L’s will, dated 1941, created a trust iro his whole estate, ito which:
1) H was to receive the trust income during her lifetime.
2) Upon H’s death, the trust capital would devolve:
a) To any child(ren) born of H’s marriage to L.
b) If no child(ren) = to the testator’s brother, AGM.
c) If AGM died before H, but with lawful issue, then it would go by stirpes.
• The problems:
1) AGM died in 1979 before H with no lawful issue.
2) H and L had no children.
3) L was survived by H.
, • Both H and L’s administrator, agreed that intestacy arose but disputed when
the intestate heirs must be determined:
→ H: At AGM’s death (1979, when the contingency occurred).
→ Administrator: At the testator’s death (1943).
ISSUE(S) Whether the intestate heirs of a deceased testator must be determined at the
date of the testator’s death or at the date the will became inoperative.
RULE(S) Under common law (based on Roman and Roman-Dutch authority):
1) If a testator dies without a will, intestate heirs are determined at the date of
death.
2) If a testator dies with a valid will, which later becomes inoperative due to
events after death, intestacy only arises when it becomes certain that no
testamentary heir exists.
APPLY • The testator's will was valid and operative when he died in 1943, and thus
intestacy was ousted at that time.
→ Intestacy only arose in 1979, when AGM died without issue, which was an
unprovided-for contingency.
→ It is at this moment that the provision failed, and intestacy occurred.
→ Thus, the intestate heirs had to be determined with reference to 1979.
• H was the only surviving heir at that time and therefore entitled to the capital
of the trust.
CONCLUSION • The appeal succeeded.
• The court held that supervening intestacy occurred in 1979, and H was the
sole intestate heir and was entitled to receive the trust capital.
IMPORTANCE This case confirms that:
1) Vesting doesn’t always occur at the testator’s death.
2) Where a valid will initially excludes intestacy, vesting is postponed until it
becomes certain that the will can no longer operate.
3) The identity of intestate heirs is therefore determined at the moment intestacy
arises, not retrospectively at death.
PROBLEMS
Problem Link to Dies Cedit/Venit
A beneficiary’s right is said to vest Dies cedit occurs but dies venit may never
automatically even though the beneficiary occur if the benefit is repudiated.
may freely repudiate (reject) the benefit.
Vesting occurs before the beneficiary makes Dies cedit precedes any exercise of choice,
any decision to accept (adiate) or reject the while dies venit depends on acceptance.
benefit.
Repudiation treats a vested right as if it never Dies cedit is retrospectively nullified, meaning
existed. dies venit is deemed never to have arisen.
Repudiation operates retrospectively from the The law fictionally rewinds dies cedit,
moment of vesting. preventing dies venit from ever occurring.
The idea that a right only arises upon Confusion arises as to whether dies cedit or
acceptance conflicts with automatic vesting. dies venit is the true moment rights arise.
, If a beneficiary dies before knowing of the Dies cedit has occurred even though dies
benefit, the right still forms part of their venit was never personally exercised.
estate.
The beneficiary’s heirs may accept or reject a Dies cedit attaches to the deceased
benefit the beneficiary never chose to deal beneficiary, while dies venit is shifted to the
with. heirs.
Because beneficiaries don’t inherit liabilities, Dies cedit no longer brings full succession
vesting lacks its traditional legal weight. consequences, weakening its meaning.
Repudiation isn’t treated as a disposition of Dies cedit is denied ex post facto, so dies
value because it is seen as undoing vesting. venit is legally avoided.
The law alternates between describing vesting Uncertainty exists as to whether dies cedit
as a right and as a mere power. creates a right or only a conditional
entitlement before dies venit.
GREENBERG AND OTHERS V ESTATE GREENBERG 1955 (3) SA 361 (A)
FACTS • Abraham Greenberg (A) and his wife (B) executed a joint will.
→ Upon A’s death, the will placed immovable property and a mortgage bond
in trust for the benefit of the B during her lifetime or until remarriage.
→ After B’s death or remarriage, the assets were to be divided equally among
their three sons.
→ All three sons survived A but later died before B.
• A dispute arose over whether the sons acquired vested rights to the trust
assets at the testator’s death, enabling them (and their estates) to benefit, or
whether vesting was postponed until the B’s death or remarriage.
ISSUE(S) Did A’s sons acquire vested rights a morte testatoris to the assets held in trust
under the will, despite B’s intervening usufructuary interest?
RULE(S) • Vesting depends on the intention of the testator, as determined from the
wording of the will.
• It is irrelevant where dominium resides immediately after death.
• Under modern law, heirs and legatees don’t acquire dominium at death, but a
vested right to claim delivery of the inheritance in due course.
• The appointment of trustees does not on its own indicate an intention to
postpone vesting.
APPLY • The court interpreted the will as conferring only a usufructuary interest on the
B, not ownership.
→ The wording of the will showed no intention to delay vesting of the sons’
rights.
• The substitution clause confirmed that the sons’ descendants would inherit if
a son predeceased entitlement, which presupposed that the sons’ rights had
already vested at A’s death.
CONCLUSION The court held that the sons acquired vested rights at A’s death, subject to B’s
usufruct = appeal failed, and vesting was confirmed as having occurred a morte
testatoris.
OVERVIEW: WHAT HAPPENS WHEN A PERSON DIES
FALLING OPEN OF THE ESTATE
• Generally, when a person dies and becomes the deceased, the estate falls open (delatio) to
beneficiaries.
→ Delatio is often considered the moment the beneficiaries right vests in them (dies cedit).
→ HOWEVER this doesn’t mean that the vested right is enforceable immediately – the right
only becomes enforceable (dies venit) at the end of the administration process.
• Note that before death, a beneficiary only has an expectation to benefit (spes) not a right.
VESTING OF RIGHTS
1) Testate succession:
• Dies cedit and venit depend on the intention of the deceased’s will.
• Situations:
a) If vesting isn’t postponed by a condition, then theoretically dies cedit and venit
coincide (in practice there will be a time lapse). “pure bequest”
b) If vesting is postponed by a condition, then dies cedit precedes venit, and venit will
only be achieved once the condition is met. “conditional bequest”
• Vesting will be dependent on conditions, clauses and legal institutions (trusts, usufructs,
fideicommissums, substitutions etc.).
2) Intestate succession:
• Dies cedit and venit occur when the person dies.
• EXCEPTION: If a person dies testate, but the estate later becomes intestate = dies cedit
and venit occur ONLY when the will (testacy) becomes inoperative.
HARRIS V ASSUMED ADMINISTRATOR ESTATE LATE LESLIE MACGREGOR (1987) 2 All SA 321 (A)
FACTS • Harris (H), was married OCOP to Leslie MacGregor (L) who died in 1943.
• L’s will, dated 1941, created a trust iro his whole estate, ito which:
1) H was to receive the trust income during her lifetime.
2) Upon H’s death, the trust capital would devolve:
a) To any child(ren) born of H’s marriage to L.
b) If no child(ren) = to the testator’s brother, AGM.
c) If AGM died before H, but with lawful issue, then it would go by stirpes.
• The problems:
1) AGM died in 1979 before H with no lawful issue.
2) H and L had no children.
3) L was survived by H.
, • Both H and L’s administrator, agreed that intestacy arose but disputed when
the intestate heirs must be determined:
→ H: At AGM’s death (1979, when the contingency occurred).
→ Administrator: At the testator’s death (1943).
ISSUE(S) Whether the intestate heirs of a deceased testator must be determined at the
date of the testator’s death or at the date the will became inoperative.
RULE(S) Under common law (based on Roman and Roman-Dutch authority):
1) If a testator dies without a will, intestate heirs are determined at the date of
death.
2) If a testator dies with a valid will, which later becomes inoperative due to
events after death, intestacy only arises when it becomes certain that no
testamentary heir exists.
APPLY • The testator's will was valid and operative when he died in 1943, and thus
intestacy was ousted at that time.
→ Intestacy only arose in 1979, when AGM died without issue, which was an
unprovided-for contingency.
→ It is at this moment that the provision failed, and intestacy occurred.
→ Thus, the intestate heirs had to be determined with reference to 1979.
• H was the only surviving heir at that time and therefore entitled to the capital
of the trust.
CONCLUSION • The appeal succeeded.
• The court held that supervening intestacy occurred in 1979, and H was the
sole intestate heir and was entitled to receive the trust capital.
IMPORTANCE This case confirms that:
1) Vesting doesn’t always occur at the testator’s death.
2) Where a valid will initially excludes intestacy, vesting is postponed until it
becomes certain that the will can no longer operate.
3) The identity of intestate heirs is therefore determined at the moment intestacy
arises, not retrospectively at death.
PROBLEMS
Problem Link to Dies Cedit/Venit
A beneficiary’s right is said to vest Dies cedit occurs but dies venit may never
automatically even though the beneficiary occur if the benefit is repudiated.
may freely repudiate (reject) the benefit.
Vesting occurs before the beneficiary makes Dies cedit precedes any exercise of choice,
any decision to accept (adiate) or reject the while dies venit depends on acceptance.
benefit.
Repudiation treats a vested right as if it never Dies cedit is retrospectively nullified, meaning
existed. dies venit is deemed never to have arisen.
Repudiation operates retrospectively from the The law fictionally rewinds dies cedit,
moment of vesting. preventing dies venit from ever occurring.
The idea that a right only arises upon Confusion arises as to whether dies cedit or
acceptance conflicts with automatic vesting. dies venit is the true moment rights arise.
, If a beneficiary dies before knowing of the Dies cedit has occurred even though dies
benefit, the right still forms part of their venit was never personally exercised.
estate.
The beneficiary’s heirs may accept or reject a Dies cedit attaches to the deceased
benefit the beneficiary never chose to deal beneficiary, while dies venit is shifted to the
with. heirs.
Because beneficiaries don’t inherit liabilities, Dies cedit no longer brings full succession
vesting lacks its traditional legal weight. consequences, weakening its meaning.
Repudiation isn’t treated as a disposition of Dies cedit is denied ex post facto, so dies
value because it is seen as undoing vesting. venit is legally avoided.
The law alternates between describing vesting Uncertainty exists as to whether dies cedit
as a right and as a mere power. creates a right or only a conditional
entitlement before dies venit.
GREENBERG AND OTHERS V ESTATE GREENBERG 1955 (3) SA 361 (A)
FACTS • Abraham Greenberg (A) and his wife (B) executed a joint will.
→ Upon A’s death, the will placed immovable property and a mortgage bond
in trust for the benefit of the B during her lifetime or until remarriage.
→ After B’s death or remarriage, the assets were to be divided equally among
their three sons.
→ All three sons survived A but later died before B.
• A dispute arose over whether the sons acquired vested rights to the trust
assets at the testator’s death, enabling them (and their estates) to benefit, or
whether vesting was postponed until the B’s death or remarriage.
ISSUE(S) Did A’s sons acquire vested rights a morte testatoris to the assets held in trust
under the will, despite B’s intervening usufructuary interest?
RULE(S) • Vesting depends on the intention of the testator, as determined from the
wording of the will.
• It is irrelevant where dominium resides immediately after death.
• Under modern law, heirs and legatees don’t acquire dominium at death, but a
vested right to claim delivery of the inheritance in due course.
• The appointment of trustees does not on its own indicate an intention to
postpone vesting.
APPLY • The court interpreted the will as conferring only a usufructuary interest on the
B, not ownership.
→ The wording of the will showed no intention to delay vesting of the sons’
rights.
• The substitution clause confirmed that the sons’ descendants would inherit if
a son predeceased entitlement, which presupposed that the sons’ rights had
already vested at A’s death.
CONCLUSION The court held that the sons acquired vested rights at A’s death, subject to B’s
usufruct = appeal failed, and vesting was confirmed as having occurred a morte
testatoris.
