Need: 06/08/09, 10/09/09, 17/09/09
Jean Kuebler – - 0829250334
16/07/09
7: CONTENTS OF WILLS
Freedom of testation is ALWAYS the starting point – but there are certain limitations to this rule.
- E.g. Impossible dispositions, unlawful dispositions, against public policy, vague dispositions, limitations ito
Immovable Property Act, creditors who have a claim against the testator, surviving spouses with a claim
against the testator.
7.1 Types of Beneficiaries
A beneficiary is someone who receives property under the will. This can be a natural person or a legal person.
Animals cannot inherit, unless by way of a trust (which can be formed in the will).
There are 2 types of beneficiaries: heirs and legatees.
- Legatees receive a specific or determinable asset or amount of money.
- Heirs receive a whole or portion of the estate (usually whatever is left after the legatee has received his or
her share – the position of the heir is weaker).
7.2 Constitutional Influence – p132
Section 25 – right to property. There are a couple of scenarios that have to be looked at ITO the Constitution:
1. Freedom of testation regarding private property.
a. The right to property has to guarantee freedom of testation regarding private property. However,
where the constitution applies the common law still needs to be developed.
2. Legislation.
a. What if legislation affects your freedom of testation? Chances are that it cannot, except if it goes
through s 36 (limitation clause).
Clauses which might conflict with the right to freedom of testation?
- Section 9 – equality clause. Can freedom of testation be limited ITO this clause? The equality clause
applies between the State and the individual. But what about between individuals? The constitution can be
used to invalidate a discriminatory will, BUT not in most situations. This emphasises the importance of
freedom of testation!
o Refer to illegal or immoral conditions later on!
There are 2 scenarios that stem from this: a complete disinheritance and a conditional bequest.
- Freedom of testation allows for the complete disinheritance of someone. But a spouse can still claim
maintenance from the state even if not a beneficiary. There are 3 reasons why this is allowed:
o Freedom of testation would be turned into a fiction if this weren’t allowed.
o Nobody has a right to inherit – people only have a “hope” to inherit.
o There would be practical difficulties to include a disinherited beneficiary.
7.3 Conditions and dies – p123
There are 6 situations where a legacy can fail:
1. If the specific asset is alienated (assumption of change of intention of testator).
a. If the specific asset has been stolen, the legacy cannot fail but the value of the asset will be given
to the legatee.
2. If the legatee should die before the legacy passes to him.
3. In the event that the legatee repudiates.
4. In the event that the legatee is unfit to inherit.
5. If the bequested asset is destroyed (contrast with the first
6. If the legacy is given for a specific purpose, but the purpose is no longer possible.
1
, Collation occurs when the beneficiary receives things in his lifetime that are later deducted from the deceased
estate. E.g. if A has received a car worth R150000 while the testator is alive, and B receives nothing, the final
estate is adjusted so that they both receive an equal share of the estate (if this is what the testator wanted).
- A legatee is not obliged to collate. An heir is obliged to collate.
An unconditional bequest is not linked to a condition, so you will receive it regardless of the circumstances. A
conditional bequest has a condition attached, and you will only receive the bequest if or when the condition is
fulfilled.
The difference between a condition and a dies – see Handout 1!
- Dies cedit – a vested right that usually originates upon a testator’s death.
- Dies venit – when the vested right becomes enforceable.
- Conditional bequest – linked to an uncertain future event.
o Suspensive conditions.
The bequest is suspended until the condition is fulfilled.
Dies cedit and dies venit only occur when the condition is fulfilled.
The rights to the bequest are suspended.
o Resolutive conditions.
The bequest is terminated if the condition is fulfilled.
Dies cedit and dies venit occurs at the time of the testator’s death, subject to the resolutive
condition.
The rights to the bequest resolve if the condition is fulfilled.
o Potestative conditions.
Fulfilment of the condition lies within the power of the beneficiary.
o Casual condition.
Fulfilment or non-fulfilment of the condition does not lie within the power of the beneficiary.
o Mixed conditions.
Fulfilment of the condition lies only partially in the power of the beneficiary.
o Divisible conditions.
Partial fulfilment of the condition is possible.
o Indivisible conditions.
The condition cannot be partially fulfilled; complete fulfilment is necessary.
o Conjunctive conditions:
If there are 2 or more conditions (events) that need to be fulfilled.
o Disjunctive conditions:
There is only one condition (event) that needs to be fulfilled.
- Bequest subject to a dies – linked to a certain future event.
o Suspensive dies.
It is certain that the event will occur and it is certain when it will occur.
The bequest is subject to an event that will undoubtedly occur.
Dies cedit occurs at the time of the testator’s death, but dies venit only occurs after the
occurrence of the future event.
The right to enforce the bequest is suspended until the future event occurs.
o Resolutive dies.
It is certain that the event will occur but it is uncertain when it will occur.
The already acquired rights will disappear in the future when the event occurs.
Dies cedit and dies venit occur at the time of the testator’s death, however the rights will
terminate when the event occurs.
The rights resolve when the event occurs.
Jewish Colonial Trust v Estate Nathan 1940
- The court has no inherit power to modify a will. In this case the court dealt with a resolutive dies and upheld
it.
23/07/09
7.4 Invalid Conditions
2
Jean Kuebler – - 0829250334
16/07/09
7: CONTENTS OF WILLS
Freedom of testation is ALWAYS the starting point – but there are certain limitations to this rule.
- E.g. Impossible dispositions, unlawful dispositions, against public policy, vague dispositions, limitations ito
Immovable Property Act, creditors who have a claim against the testator, surviving spouses with a claim
against the testator.
7.1 Types of Beneficiaries
A beneficiary is someone who receives property under the will. This can be a natural person or a legal person.
Animals cannot inherit, unless by way of a trust (which can be formed in the will).
There are 2 types of beneficiaries: heirs and legatees.
- Legatees receive a specific or determinable asset or amount of money.
- Heirs receive a whole or portion of the estate (usually whatever is left after the legatee has received his or
her share – the position of the heir is weaker).
7.2 Constitutional Influence – p132
Section 25 – right to property. There are a couple of scenarios that have to be looked at ITO the Constitution:
1. Freedom of testation regarding private property.
a. The right to property has to guarantee freedom of testation regarding private property. However,
where the constitution applies the common law still needs to be developed.
2. Legislation.
a. What if legislation affects your freedom of testation? Chances are that it cannot, except if it goes
through s 36 (limitation clause).
Clauses which might conflict with the right to freedom of testation?
- Section 9 – equality clause. Can freedom of testation be limited ITO this clause? The equality clause
applies between the State and the individual. But what about between individuals? The constitution can be
used to invalidate a discriminatory will, BUT not in most situations. This emphasises the importance of
freedom of testation!
o Refer to illegal or immoral conditions later on!
There are 2 scenarios that stem from this: a complete disinheritance and a conditional bequest.
- Freedom of testation allows for the complete disinheritance of someone. But a spouse can still claim
maintenance from the state even if not a beneficiary. There are 3 reasons why this is allowed:
o Freedom of testation would be turned into a fiction if this weren’t allowed.
o Nobody has a right to inherit – people only have a “hope” to inherit.
o There would be practical difficulties to include a disinherited beneficiary.
7.3 Conditions and dies – p123
There are 6 situations where a legacy can fail:
1. If the specific asset is alienated (assumption of change of intention of testator).
a. If the specific asset has been stolen, the legacy cannot fail but the value of the asset will be given
to the legatee.
2. If the legatee should die before the legacy passes to him.
3. In the event that the legatee repudiates.
4. In the event that the legatee is unfit to inherit.
5. If the bequested asset is destroyed (contrast with the first
6. If the legacy is given for a specific purpose, but the purpose is no longer possible.
1
, Collation occurs when the beneficiary receives things in his lifetime that are later deducted from the deceased
estate. E.g. if A has received a car worth R150000 while the testator is alive, and B receives nothing, the final
estate is adjusted so that they both receive an equal share of the estate (if this is what the testator wanted).
- A legatee is not obliged to collate. An heir is obliged to collate.
An unconditional bequest is not linked to a condition, so you will receive it regardless of the circumstances. A
conditional bequest has a condition attached, and you will only receive the bequest if or when the condition is
fulfilled.
The difference between a condition and a dies – see Handout 1!
- Dies cedit – a vested right that usually originates upon a testator’s death.
- Dies venit – when the vested right becomes enforceable.
- Conditional bequest – linked to an uncertain future event.
o Suspensive conditions.
The bequest is suspended until the condition is fulfilled.
Dies cedit and dies venit only occur when the condition is fulfilled.
The rights to the bequest are suspended.
o Resolutive conditions.
The bequest is terminated if the condition is fulfilled.
Dies cedit and dies venit occurs at the time of the testator’s death, subject to the resolutive
condition.
The rights to the bequest resolve if the condition is fulfilled.
o Potestative conditions.
Fulfilment of the condition lies within the power of the beneficiary.
o Casual condition.
Fulfilment or non-fulfilment of the condition does not lie within the power of the beneficiary.
o Mixed conditions.
Fulfilment of the condition lies only partially in the power of the beneficiary.
o Divisible conditions.
Partial fulfilment of the condition is possible.
o Indivisible conditions.
The condition cannot be partially fulfilled; complete fulfilment is necessary.
o Conjunctive conditions:
If there are 2 or more conditions (events) that need to be fulfilled.
o Disjunctive conditions:
There is only one condition (event) that needs to be fulfilled.
- Bequest subject to a dies – linked to a certain future event.
o Suspensive dies.
It is certain that the event will occur and it is certain when it will occur.
The bequest is subject to an event that will undoubtedly occur.
Dies cedit occurs at the time of the testator’s death, but dies venit only occurs after the
occurrence of the future event.
The right to enforce the bequest is suspended until the future event occurs.
o Resolutive dies.
It is certain that the event will occur but it is uncertain when it will occur.
The already acquired rights will disappear in the future when the event occurs.
Dies cedit and dies venit occur at the time of the testator’s death, however the rights will
terminate when the event occurs.
The rights resolve when the event occurs.
Jewish Colonial Trust v Estate Nathan 1940
- The court has no inherit power to modify a will. In this case the court dealt with a resolutive dies and upheld
it.
23/07/09
7.4 Invalid Conditions
2
