legal practitioners examination 6-97 answers

QUESTION 2 [38]

JOINT WILL
We, the undersigned, JOHN JONES and ISABEL JONES spouses married to each
other out of community of property, declare this document to be and contain
the last will and testament of both of us.
(2)
1.
We revoke all wills previously made by us, whether jointly or separately.
(2)
2.
We appoint the survivor of us to be the sole heir of the whole estate of
the first-dying, subject to the provisions of paragraph 4 below.
(2)
3.
We nominate the survivor of us to be the executor of the will of the first-
dying, subject to the provisions of paragraph 5 below. We grant unto our
executor all such powers as are allowed by the law, including the powers of
assumption, and we direct that it shall not be necessary for our executor
to furnish security for the due and faithful performance of his or her
functions.
(3)
4.
Should we die simultaneously or within 14 days of each other, we leave the
estates of both of us to our children. Should any child of ours not have
attained the age of 25 years at the time of our death, we leave the share
of such child to our Trustee in trust upon the following terms and
conditions:
(3)
(a) (Powers)
(b) the income of the trust shall, after payment of all legitimate debts
by the trust, be applied in the absolute discretion of our Trustees
towards the maintenance, education (including university education)
and general advancement in life of our children.

Any income not expended on these purposes shall be capitalised.

Should the incomer of the trust be insufficient for the

aforementioned purposes, our Trustees may in his discretion utilise
the capital of the trust for the said purposes.
(5)

(c) As soon as a child of ours attains the age of 25 years, the trust in
respect of his or her share shall cease, and our trustee shall
transfer, deliver, cede and pay over to such child his or her share
of the trust capital plus accumulated income.
(4)

5.

Should we die as described in paragraph 4 above, we nominate as executor of

our joint estate, or the estate of the survivor of us, and the
administrator of the trust created in paragraph 4 above, PETER van der
MERWE, legal practitioner of Windhoek.

We grant unto our executor and Administrator all such powers as are allowed
by law, including the power of assumption, and we direct that it shall not
be necessary for any executor or administrator to furnish security for the
due and faithful performance of his functions.
(4)
witnesses ................
........................ Testator

........................ ................
Testatrix
 6.
No benefit accruing to any person by virtue of the provisions of this our
will shall form part of the joint estate of the beneficiary and any present
or future spouse of his or her. The same applies to the fruits derived from
such benefit.
(3)
Thus done and signed at Umtata on this the 10th day of July 1996 by the
Testator, the Testatrix and the undersigned witnesses, all being present at
the same time.
(2)

As witnesses:
"J JONES"
TESTATOR
1.
"I JONES"
TESTATRIX
(2)
[32]

NOTE TO EXAMINER: A further 6 marks in the marker's

discretion for good drafstmanship and
general impression.

QUESTION 2
2.1 The nominee of the surviving spouse.

2.2 Death notice

proof of death
inventory
written nominations
acceptance of trust
bond of security

2.3 open bank account

advertise for creditors
lodge section 27 inventory 30 days after appointment
obtain valuations and other vouchers
determine solvency of estate
decide mode of divestment
lodge account 6 months after appointment
advertise account
pay creditors and heirs 2 months after account lay for
inspection
transfer fixed property
lodge master's final requirements

2.4 I hereby apply in terms of section 35(1)(b) read with Regulation 6,

for an extension of 2 months for the lodging of the estate account in
this matter.
[reason]
[steps taken]
[what progress made]
[what money on hand]
[why a first account can not be lodged]
[is estate solvent]

Before account due ie. within 6 months of appointment.

2.5 affidavit
[full names of deceased and ref. no.
[estate solvent]
[list of assets and liabilities]
[request to take over and assets to be taken over]
[reasons]
[how creditors will be paid]
[names of beneficiaries]
[if minors,
reasons why to minor's advantage
intention of selling
minors share to be deposited in G.F. NB. no security as
surviving spouse not natural guardian.

2.6 As widow not natural guardian, she can not give security i.t.o. sec.
43.

QUESTION 3

3.1 A's 1/3 share will devolve equally upon B and C by virtue of the ius
accrescendi.

3.2 The addition of the words "in equal shares" has the effect of joining
A, B and C verbis tantum (i.e. an institution of beneficiaries to
separate shares). The result is that the ius accrescendi does not
operate. A's 1/3 share will then devolve upon the testator's
intestate heirs.

3.3 In terms of section 74 of the Children's Act, an adopted child is

regarded as the legitimate child of the adoptive parents, except that
he may not inherit under a will executed prior to the adoption.
Therefore if D was adopted before the will was executed he would
inherit together with B and C. otherwise not. He could however not
inherit in terms of intestate succession from a relative of his
adoptive parent.