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7. CAPACITY TO BENEFIT UNDER A WILL
7.1 Persons capable of inheriting: natural persons
• Section 2D(1)(c) of WA
• Section 2D(1)(b) of WA
• Textbook pp 99- 105
7.2 Persons capable of inheriting: juristic persons
7.3 Persons disqualified from inheriting
7.2.1 The murderous beneficiary
• Casey NO v The Master
• Leeb v Leeb
• Textbook pp 105- 110
7.2.2 The indignus
• Textbook pp 110-111
7.2.3 Disqualification in terms of s 4A of the Wills Act
• Section 4A of WA
• Danielz v De Wet
• Blom v Brown
• Textbook pp 111- 113
7.4 Effects of disqualification
• Section 2C(2)
• Textbook p 113
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Introduction
• Capacity to inherit = a beneficiary’s ability to inherit/take a benefit under a will. A person must have
capacity at the moment of the devolution of the benefit. * This is different to testamentary capacity
= a testator’s ability to make a will.
• General rule: All persons (natural, juristic, born or unborn) have the capacity to inherit either
testate or intestate regardless of their legal capacity.
7.1 Persons capable of inheriting: natural persons
A natural person, irrespective of his/her age, mental or legal standing, has capacity to inherit. The capacity
to inherit is the ability to acquire a vested right (dies cedit) but not necessarily the ability to enjoy the
inheritance (dies venit).
A. Major beneficiary of sound mind with legal standing
• A person of who is a major (18 years and older), who is of sound mind, is not insolvent and who
does not repudiate an inheritance, will acquire a vested right to an unconditional inheritance AND
will also have the ability to enjoy the inheritance.
B. Minor beneficiary
• A minor (under than 18 years) has capacity to inherit BUT the ability to enjoy the inheritance is
limited.
• The inherited property forms part of the minor’s estate and it is regarded as being the minor’s but
it is administered by the minor’s guardian on his/her behalf. Where no guardian is available, a
court- appointed guardian or curator will administer the property.
- Movables property: Minor will acquire a vested right to the property when the deceased
dies (dies cedit) but the property will not be delivered to the minor but to the minor’s
guardian.
- Money: Minor will acquire a vested right to the property when the deceased dies (dies cedit)
but it will not be physically given to him/her nor to the guardian. The AEA requires that
money be placed into the Guardian’s Fund. (Amount determined by Minister = R100 000 →
master may not disperse more than this without the sanction of the court). *Disadvantage
of the Guardian’s Fund – the money in the fund attracts nominal interest as opposed to
effective interest. → Thus, testamentary trust is a better investment option.
- Immovable property: The property is immediately registered in the minor’s name in the
deeds registry but the minor’s guardian will administer the property. Alienations and
mortgages must be authorised by the Master of the High Court or the High Court. (see page
101 → if guardian wants to alienate the property).
• Alienation / mortgage of the property => need to authorisation from the Master of the
high court of the HC itself.
7. CAPACITY TO BENEFIT UNDER A WILL
7.1 Persons capable of inheriting: natural persons
• Section 2D(1)(c) of WA
• Section 2D(1)(b) of WA
• Textbook pp 99- 105
7.2 Persons capable of inheriting: juristic persons
7.3 Persons disqualified from inheriting
7.2.1 The murderous beneficiary
• Casey NO v The Master
• Leeb v Leeb
• Textbook pp 105- 110
7.2.2 The indignus
• Textbook pp 110-111
7.2.3 Disqualification in terms of s 4A of the Wills Act
• Section 4A of WA
• Danielz v De Wet
• Blom v Brown
• Textbook pp 111- 113
7.4 Effects of disqualification
• Section 2C(2)
• Textbook p 113
, 2
Introduction
• Capacity to inherit = a beneficiary’s ability to inherit/take a benefit under a will. A person must have
capacity at the moment of the devolution of the benefit. * This is different to testamentary capacity
= a testator’s ability to make a will.
• General rule: All persons (natural, juristic, born or unborn) have the capacity to inherit either
testate or intestate regardless of their legal capacity.
7.1 Persons capable of inheriting: natural persons
A natural person, irrespective of his/her age, mental or legal standing, has capacity to inherit. The capacity
to inherit is the ability to acquire a vested right (dies cedit) but not necessarily the ability to enjoy the
inheritance (dies venit).
A. Major beneficiary of sound mind with legal standing
• A person of who is a major (18 years and older), who is of sound mind, is not insolvent and who
does not repudiate an inheritance, will acquire a vested right to an unconditional inheritance AND
will also have the ability to enjoy the inheritance.
B. Minor beneficiary
• A minor (under than 18 years) has capacity to inherit BUT the ability to enjoy the inheritance is
limited.
• The inherited property forms part of the minor’s estate and it is regarded as being the minor’s but
it is administered by the minor’s guardian on his/her behalf. Where no guardian is available, a
court- appointed guardian or curator will administer the property.
- Movables property: Minor will acquire a vested right to the property when the deceased
dies (dies cedit) but the property will not be delivered to the minor but to the minor’s
guardian.
- Money: Minor will acquire a vested right to the property when the deceased dies (dies cedit)
but it will not be physically given to him/her nor to the guardian. The AEA requires that
money be placed into the Guardian’s Fund. (Amount determined by Minister = R100 000 →
master may not disperse more than this without the sanction of the court). *Disadvantage
of the Guardian’s Fund – the money in the fund attracts nominal interest as opposed to
effective interest. → Thus, testamentary trust is a better investment option.
- Immovable property: The property is immediately registered in the minor’s name in the
deeds registry but the minor’s guardian will administer the property. Alienations and
mortgages must be authorised by the Master of the High Court or the High Court. (see page
101 → if guardian wants to alienate the property).
• Alienation / mortgage of the property => need to authorisation from the Master of the
high court of the HC itself.
