THEORY FOR WILLS AND ESTATES

QUESTIONS AND ANSWERS FROM 2017-2021 PPREVIOUS PAPERS

Q1.
Susan committed suicide on 2 February 2021. She left a one-page letter in which
she wrote that she revokes all previous Wills and leaves all her possessions to her
two children from her first marriage, Steven and Mathilda. This letter is only signed
by Susan at the end thereof. It appears that she executed a valid Will in 2019 in
which she left all her possessions to her ex-husband and nothing to her children.

1. Advise Steven and Mathilda if the letter that Susan left behind is a valid Will.

Answer: The letter that Susan left behind is not a valid Will as it was not signed by
witnesses [1].

2. Steven and Mathilda also wants to know if they can inherit from their
mother’s estate and what action, if any, is available to them. (7)

Answer: In terms of Section 2(3) the Court is empowered to order the Master to accept
a document as a valid Will [1] if the Court is satisfied that it was drafted [1] or executed
[1] by a person, who has since died [1], and who intended that document to be his or
her Will [1], although it does not comply with all the formalities for the execution of Wills
[1]. Therefore, Steven and Mathilda will inherit if the court is satisfied that Susan
intended the letter to be her Will [1].

Q2.

1. What determines which Master of the High Court has jurisdiction to

administer a deceased estate? (2)

Answer: The ordinary place of residence of the deceased prior to his death [1],
irrespective of the duration of his residence there [1].

2. Under what circumstance can jurisdiction not be transferred or assumed by

another Master of the High Court? (1)

Answer: Once the Master has exercised jurisdiction, e.g. by registering and accepting
the Will, he shall continue to have jurisdiction [1].

3. If a Corporation is nominated in a Will as an executor, to whom must the

Master issue an appointment letter? Motivate. (3)

Answer: The appointment letter shall be granted to a person who is an officer / director
of the nominated corporation [1] and has been duly authorised by the said corporation to
act on their behalf [1] and for whose acts and omissions as executor, the corporation
accepts liability [1].

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4. Under what circumstance can an Estate Representative in terms of section
18(3) be appointed by the Master? (1)

Answer: Where the value of the estate does not exceed R250 000.00 [1].

5. Under what circumstance must the executor open an estate bank account?
(1)

Answer: As soon as there are more than R1 000.00 estate funds on hand [1].

Q3

Joseph made a Will in 2018 when he was fifty-six (56) years old and left his entire
estate to his two (2) daughters, Dolly who was fifteen (15) years old and Betty who
was seventeen (17) years old. He appointed his son James, who was eighteen (18)
years old, as the executor of his estate. Dolly and James signed the Will as
witnesses. Joseph died on 17 July 2021.

Advise on the capacity of Joseph’s children to inherit or benefit in terms of this

Will.

Answer: Betty has full capacity to inherit as she did not sign as a witness [1]. In terms
of the provisions of Section 4A of the Wills Act a person who signs a Will as a witness
may not benefit from that Will [1]. James was appointed as the executor which is a
benefit in terms of the Will [1] and therefore will not benefit [1]. Dolly, although she had
capacity to sign as a witness [1], may also not benefit in terms of the Will [1].

Q4
You are approached by Ada West and Mark West to draw their Will. They are
married in community of property. Their only child is a married woman with two
minor children. They want their entire joint estate worth approximately R4,5
million to devolve directly upon their daughter as the sole heir at the death of the
first dying of them, but that provision (other than the creation of a trust) must be
made for the survivor until his/her death. Mark West indicates that he is illiterate
and that he will be signing the Will by making a mark.

1.1 What is massing in relation to a Will? Explain fully. (4)

Answer:
Massing occurs when two or more persons, with testamentary capacity [1], combine or
consolidate their separate estates (or their undivided half shares of their joint estate
when they are married in community of property) into a single estate [1], prescribing in
the Will what must be done with their consolidated estate [1] but leaving a benefit in
favour of the survivor [1]. A joint will is usually drawn in this instance.

1.2 Draft the required certificate by a Commissioner of Oaths where the Testator
signs the Will by making a mark. (3)

Answer:
I, Arthur Boyd, in my capacity as Commissioner of Oaths, certify that

I have satisfied myself as to the identity of the testator [1]

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This Will so signed is also the Will of the testator [1]
DATED AT _______________ THIS ___ DAY OF __________________ 2021

________________________
ARTHUR BOYD
COMMISSIONER OF OATHS [1]

1.3 When must the Commissioner of Oaths make the certificate? (2)

Answer: The Commissioner of Oaths must certify as soon as possible after the testator
has signed [1] even after testator has died. [1]

1.4 Who is competent to witness a Will? (2)

Answer: A person of the age of 14 years [1] and competent to give evidence in a Court
of law. [1]

1.5 Who is competent to make a Will? (2)

Answer: A person of the age of 16 years or more [1] and as long as he is mentally
capable of appreciating the nature and effect of his act. [1]

1.6 In relation to a Will what is a legacy? (2)

Answer: A bequest in a Will of specific property (movable or immovable) [1] to a specific

person, Trust or Charity. [1]

1.7 Must a Will be dated to be valid? (1)

Answer: No. [1]

1.8 What is the meaning of collation (collatio) in relation to an estate? (2)

Answer: Collation is the process by which the inheritance of certain heirs of the
deceased is adjusted in the distribution account to consider any benefits received from
the testator during his lifetime. [2]

Q5

With regard to the duty of an executor to place notices when administering a

deceased estate, explain the following:

1. Which notices must be placed? (2)

Answer: Notice to debtors and creditors [also Sect 29 Notice] [1] and that the
Liquidation and Distribution account lies open for inspection [also Sect 35 Notice].

2. When should these notices be placed? (2)

Answer: Sect 29 – after receipt of the Letters of Executorship.[1]

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Sect 35 – after the estate account has been approved by the Master. [1]

3. Where must the notices be placed? (2)

Answer: Government Gazette [1] and the Local newspaper circulating in the area where
the deceased was resident. [1]

4. What is the duration of the respective notices? (2)

Answer: Sect 29 = minimum of 30 days and maximum of 3 months. [1]

Sect 35 = not less than 21 days. [1]

5. What is the aim of the notices? (2)

Answer: Sect 29 = to request creditors to submit their claims against the estate. [1]
Sect 35 = to give interested parties the opportunity to inspect and lodge an objection
against the estate account (if any). [1]

Q6

You are administering the estate of the second dying spouse. After all the
calculations the net value of the estate in the estate duty addendum is R7 000
000,00:

The estate duty addendum in the first dying spouse’s estate shows that the net
value of the estate was R2 500 000,00.

Show the calculation for estate duty payable (if any) in the estate of the second
dying spouse.

Answer:

Net value of Estate 7 000 000,00 [1]

Less Primary Rebate 3 500 000,00 [1]
-----------------
3 500 000,00
Less Roll over of the rebate
from the estate of the first
dying spouse 3 500 000,00 [2]
------------------
NIL [1]
============
Therefore no estate duty payable.

Q7

1. You act for a client who has a liquidated claim against a deceased estate. You
establish that the period for filing of creditors claim against the estate has passed.
What advice will you give your client? (3)

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Answer:
It is permissible to file a late claim against an estate [1]. If you do not satisfy the Master
that you have a reasonable excuse for the delay, you will be liable for the cost of
reframing the account as a result of the delay [1]. You will not have any recourse against
any other creditor of the estate who has been paid a valid claim [1]. Section 31 of the
Administration of Estates Act.

2. After receiving the claim the Executor doubts whether this claim can be
allowed. Which steps should the Executor take in order to resolve this matter? (5)

Answer:
The Executor may require the claimant to lodge an affidavit to support his claim [1]. The
Executor may require the claimant, with the consent of the Master, to appear before the
Master or Magistrate nominated by the Master to be questioned under oath in
connection with the claim [1]. Section 32 of the Administration of Estates Act. The
Master or Magistrate takes a record of the proceedings [1] and the Executor makes a
decision based on the evidence submitted [1]. If he rejects the claim, he notifies the
claimant in writing by registered post giving reasons [1]. Section 33 of the
Administration of Estates Act.

3. How would you advise your client if the executor rejects the claim? (2)

Answer: If the claim is rejected, you are entitled to institute legal action against the
estate [1], citing the Executor in his official capacity as the defendant [1].

Q8

Brian executed a Will on 13 January 2018 in terms of which he left his estate to his
wife Pretty. Brian and Pretty who were married out of community of property were
divorced on 24 May 2019.
Brian married Maria on the 25th June 2019 and died childless on 11th July 2019.
With regard to the execution of the Will by Brian which consists of more than one
page, explain the following:

3.1 Where on the Will must the witnesses sign? (2)

Answer: On the last page (1/2), anywhere (1/2).

3.2 If Brian signs by means of a mark, then a certificate in terms of Section 2(1)(a)
(v) of the Wills Act 7 of 1953 should be appended:

(a) by whom?

Answer: Commissioner of Oaths;

(b) where on the will? (2)

Answer: On any page [1]; anywhere [1]

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(c) where must the certifying officer sign? (1)

Answer: Except for the page on which the certificate appears, anywhere on all the other
pages.

(d) what must be certified? (2)

Answer: That he has satisfied himself as to the identity of the testator [1] and that the
will so signed is the will of the testator [1].

3.3 How will Brian’s estate be distributed? (5)

Answer: In view of the fact that Brian died within three months after he was divorced,
Section 2(B) of the Wills Act will be applicable [1]. Pretty is considered to have died
before the dissolution of the marriage [1] and she will therefore not benefit under the will
[1], and the estate devolves according to the law on intestate succession [1]. As Brian
has died without leaving children, his new wife, Maria, will be the sole beneficiary in
terms of the Intestate Succession Act of 1987 [1].

Q9

Paul Mkhize died intestate and is survived by his wife Zanele to whom he was
married in community of property and who is 8 months pregnant with their
child. He was also survived by the following people: (20)
(a) His parents, Eric and Judy;
(b) His son Andy, who murdered him;
(c) Andy’s son Ben;
(d) His son, Daniel, from a previous marriage;
(e) His wife’s daughter, Letta Ntuli, from a previous marriage.
(f) His major daughter Caroline who has renounced any inheritance from
Paul’s estate;
(g) Caroline’s son Dennis.
(h) His major adopted daughter Rose.
(i) Rose’s son George.
The joint distributable estate amount to R2 976 000.00 consisting of cash only.
Advise the Mkhize family as to who are Paul’s heirs and what amount each will
inherit. Give reasons where necessary.

Answer:
Zanele, the wife is entitled to half share of the joint estate by virtue of the marriage in
community of property in the amount of R1 488 000.00 [1]

The deceased’s half share of R1 488 000.00 devolves as follows:

If the unborn child is born alive, Zanele, Andy, Daniel, Caroline, Rose and the unborn
child (nasciturus rule) are the intestate heirs. [1]

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Zanele inherits a child’s share or R250 000.00 whichever amount is the greater. [1]

A child’s share amounts to R1 488 000.00 ÷ 6 = R248 000.00 [1]

Zanele will therefore inherit the greater amount of R250 000.00 [1]

The descendants inherit the remainder thereof of R1 238 000.00 [1] in terms of Section 1(1)
(c)(ii) of the Intestate Succession Act as follows:

Since Andy murdered Paul, Andy does not inherit (die bloedige hand erf niet) [1]

In terms of section 1(7) of the Intestate Succession Act, Ben will inherit Andy’s share in the
amount of R247 600.00 [1]

As Caroline has renounced her inheritance, the surviving spouse Zanele receives her
(Caroline’s) portion in terms of section 1(6) of the Intestate Succession Act in the amount of
R247 600.00 [1] and will therefore inherit a total amount of R497 600.00 [1]

Rose will inherit the amount of R247 600.00 [1]

Daniel will inherit the amount of R247 600.00 [1]
The unborn child will also inherit the amount of R247 600.00 [1]

If the unborn child is not born alive, then

A child’s share will amount to R1 488 000.00 ÷ 5 = R297 600.00 [1]
Zanele will therefore inherit the child’s share in the amount of R297 600.00 [1]
As Caroline has renounced her inheritance, the surviving spouse Zanele receives her
(Caroline’s) portion in terms of section 1(6) of the Intestate Succession Act in the amount of
R297 600.00 and

will therefore inherit a total amount of R595 200.00 [1]

Ben, Daniel and Rose will each inherit R297 600.00 [1]

Eric and Judy will not inherit anything because descendants inherit before ascendants [1]

Letta Ntuli will not inherit anything because she was not formally adopted by Paul [1]

Dennis and George will not inherit by way of representation as their parents are still alive [1]

Q10

You are approached by Pamela Mali who recently got divorced from Zola Mali to
draw a Will for her. She was awarded full guardianship of her three minor children.
She advises that she has a joint Will with her erstwhile husband. Draft a suitable
Will for your client that would ensure that proper care is provided to the three
minor children.

Answer:

LAST WILL AND TESTAMENT

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I, PAMELA MALI (born SOSIBA) a divorcee, hereby revoke, cancel and annual all and any
testamentary acts and / or disposition heretofore made by me, either jointly or singly and
declare this to be my last will and Testament. [1]
1.
I bequeath my entire estate to my 3 children per stipes [2].

2.
I nominate and appoint JACK MABASO, a practising Attorney of the firm MABASO &
ASSOCIATES to be the Executor of my estate [1], and if he does not survive me then I
appoint any remaining partner of the firm MABASO & ASSOCIATES to be the Executor of
the estate [1]. I grant my Executor the power of assumption [1]. I direct that my said
Executor shall not be required to give security [1].

3.
I direct that a receipt signed by the guardian in respect of any loose assets bequeathed to a
minor beneficiary shall be sufficient to discharge my Executor and the Master of the High
Court [1]. I direct that the guardian shall be exempted from the provision of security.

4.
I nominate and appoint STEWART and JULIA SOSIBA, presently of NO 28 FULLAM
STREET, CONSTANTIA, PORT ELIZABETH, or the survivor of them to be the guardians on
any of my minor children should they survive me [1]. If the said STEWART and JULIA
SONJI do not survive me I hereby appoint BONGI SOSIBA to be the guardian of my minor
children [1]. I direct that the said guardians shall not be required to furnish security in that
capacity to the Master of the High Court [1].

5.
All bequest in terms of this Will and / or any codicil thereto shall be excluded from
Community of Property [1]. A receipt signed by a married beneficiary without the assistance
of his / her spouse shall be sufficient discharge to my Executor [1].
SIGNED AT PORT ELIZABETH on the 12th June 2020 in the presence of the undersigned
witnesses who were present and signing at the same time and in the presence of each other
[2].

AS WITNESSES
_______________________
TESTATRIX [1].

1. [1].
2. [1].

Q11

A Master’s representative, who is appointed by the Master in terms of Section

18(3) of the Administration of Estates Act 66 of 1965 does not have to comply with
all provisions of the Estates Act. Give three examples of the above.

Answer:
(1) Masters representative does not have to open a Bank Account – Section 28 [1].
(2) does not have to place statutory notices. Section 29 and 35(5) [1].
(3) need not to lodge a liquidation and distribution account Section 35 [1].

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Q11

You are approached by Cedric Jones and his wife Mabel Jones to draw their Will.
They are married in community of property. Cedric is paralysed from the neck down
due to a train accident. Their only child is a married woman who has a major son and
a major daughter. They want their entire joint estate worth approximately R4 million
to devolve directly upon their daughter as the sole heir at the death of the first dying
of them, but that provision (other than the creation of a trust) must be made for the
survivor until his/her death. Cedric directs you as their attorney to sign the Will on his
behalf. Draft a suitable Will for your clients which consists of at least two pages.

Answer:

JOINT WILL
We, the undersigned,

CEDRIC JONES
Identity Number: 530812 5638 08 3
and
MABEL JONES (born Nel)
Identity Number: 581019 0417 08 8

spouses married in community of property and presently residing in Midrand,

Gauteng Province, hereby make our Will as follows: (1)

1. REVOCATION OF PREVIOUS WILLS

We revoke all our previous Wills, codicils and testamentary writings made either
jointly or individually, and declare this to be our last Will. (1)

2. APPOINTMENT OF EXECUTOR
2.1. We appoint the survivor of us as the executor of our estate, with the power of
assumption (1 ). If we die simultaneously or should the survivor for any reason
be unable or refuse to accept the appointment, we appoint our daughter Julia
Barn (born Jones) as the executrix. (1)

2.2. Any executor appointed in terms of our Joint Will shall be exempt from
furnishing security to the Master of the High Court. (1)

3. MASSING OF ESTATES AND BENEFICIARIES

3.1 We direct that on the death of the first dying of us (1 ), our joint community
estates shall be massed and consolidated into a single estate (1 ), which we
bequeath to our aforesaid daughter Julia Barn (born Jones) (1) subject to a
usufruct for life in favour of the survivor of us (1 ).

Signature by C.0.0 (1)

TESTATRIX (1)
Paul Kumar
________________________
on behalf of and by the direction
of the TEST ATOR (2)

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3.2 If the aforesaid bequest to our daughter should fail for any reason, our
massed estate shall devolve upon her children per stirpes. (1)

4. EXCLUSION OF COMMUNITY OF PROPERTY AND ACCRUAL

No inheritance or benefit accruing to any beneficiary in terms of this Will shall form
part of any existing or future community estate of such beneficiary. We further direct
that the right of accrual as contemplated in the Matrimonial Property Act, 88 of 1984,
as amended, shall be excluded from any such inheritance or benefits. (1)
SIGNED AT MIDRAND ON 18TH MAY 2017 by the Testatrix, Paul Kumar on behalf
of and by the direction of the Testator and the attesting witnesses all being present
and signing simultaneously in the presence of one another. (2)

WITNESSES:
1.
2.
(1)
TESTATRIX (1)
Paul Kumar

___________
on behalf of and by the direction
of the TEST ATOR (2)

Certificate in terms of Sec 2(1)(a)(v) (1)

I, Joyce Pillay of 150 Church Street Midrand, in my capacity as Commissioner of
Oaths (1 ), certify that I have satisfied myself as to the identity of the testator Cedric
Jones (1 ), and that the accompanying joint Will is the Will of the testator (1 ).

J Pillay
_______ (1)
Commissioner of Oaths
Capacity:
Midrand 18th May 2017

Q12

Jason executed a Will on 13 January 2017 in terms of which he left his estate to his wife,
Sarah. Jason and Sarah who were married out of community of property, were
divorced on 12 March 2017. Jason then married Emily on 12 April 2017 and died
childless on 1 0 May 2017.

2.1 Emily approaches you with the question as to whether she or Sarah will inherit
Jason 's estate. Advise your client fully with regard to the legal position on her
question. (5)

Answer: In view thereof that Jason died within 3 months after he was divorced (1 ),
Section
2(8) of the Wills Act will be applicable (1 ). Sarah is considered to have died before
Jason (1) and Sarah will therefore not benefit in terms of the Will (1 ). As Jason has

10
died without leaving issue, his new wife Emily will be the sole beneficiary in terms
of the Intestate Succession Act 81of 1987, as amended (1 ).

2.2 Will your advice be different if Jason had died on 1 September 2017? (6)

Answer: Yes (1 ). Because the Will was not altered after the divorce (1 ), and
because more than 3 months has lapsed since divorce (1 ), Sarah regains her status
as a beneficiary (1 ). Sarah will therefore inherit in terms of Jason's Will (1 ). His new
wife will only have a claim against the estate for maintenance (1) in terms of the
Maintenance of Surviving Spouses Act No. 27 of 1990, as amended.

Q12

Gibson bequeathed a cash legacy of R700 000 .00 to his cousin Helen in
paragraph 4 of his Will dated 5 October 2017. Six months later he changes his
mind and now wishes to cancel this bequest and instead bequeath this cash
legacy to his sister Joyce.
Draft the appropriate document to give effect to Gibson's wishes .

Answer:
CODICIL (1)
I, the undersigned,
GIBSON REDDY,

of Durban, make the following codicil to my last will and testament dated 5 October
2017.(1)

1.

I revoke paragraph 4 of my said Will and substitute for it the following: (2)
I bequeath R700 000. 00 (seven hundred thousand rand) in cash to my sister Joyce.(1)

2.
My said Will remains unaltered in all other respects. (2)

Thus done and signed at Durban on 31 August 2018 by the testator and the undersigned
witnesses, all being present at the same time. (1)

AS WITNESSES: (1)
1.-------
2.-------
______________
TESTATOR (1)

Q13

You are consulted by the family of the late Moses Cele who presents you with
a two-page hand written document headed "Last Will and Testament". The first
page of the document is signed by the deceased and one witness. The Second

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page is signed by the same witness and the deceased, at the end of the
document. You establish that the Will was handwritten by the deceased's
spouse who is appointed as executor. The family want to know if this
document will be accepted by the Master as a valid will and whether the Master
will appoint the
surviving spouse as executor. What advice will you give?

Answer:
1) The document does not comply with Section 2(1) (a) (ii) of the Wills Act [1] in that
the second page must be signed by two witnesses in the presence of the testator
and present at the same time (1 ).

2) Where a Will does not comply with the formal requirements of the Wills Act any
person who has an interest may in terms of Section 2(3) of the Wills Act apply to
the High Court for an order directing the Master to accept the document signed by
the deceased, as his Will (1) if the Court is satisfied that the document was
intended to be his Will. (1) I would advise the family to make such an application
to the High Court (1 ).

3) In terms of Section 4A (1) of the Wills Act, a person who writes out the Will shall
be disqualified from receiving any benefit from the Will (2).

4) The appointment of the surviving spouse as Executor is regarded as a benefit (1 ).

5) However the Court may in terms of Section 4A.(2)(a) declare the spouse who
hand wrote the Will competent to benefit from the Will (1 ), if the Court is satisfied
that the spouse did not defraud or unduly influence the deceased in the execution of
the Will (1 ).

Q14

A husband and wife married out of community of property to each other, wish
to leave both their estates to their only child upon the death of the first dying
of them, subject to the lifelong usufruct of the survivor.

3.1 Draft the clause in their joint Will which gives effect to their wishes. (5)

Answer: We hereby mass our separate estates (2) upon the death of the first dying
of us and direct that the so massed estates shall, upon the death of the first dying
(1), devolve upon our son Joseph (1 ), subject to the· lifelong usufruct of the survivor
of us (1 ).

3.2 Draft an adiation certificate which will be acceptable to the Master of the
High Court in the factual circumstances detailed above. (12)

Answer:

ADIATION CERTIFICATE
I the undersigned
Judy Wilson

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in my capacity as the surviving spouse of the late Allan Wilson do hereby declare as
follows:

I am aware of the conditions contained in the joint last Will and Testament of the
deceased and
myself dated 3 April 2015 which constitutes a massing of our separate estates. (1)

I am aware that I have the right to either accept or reject the said Will (1) and that the
consequences of both acceptance and repudiation have been explained to me (1 }.
Under the circumstances I have decided to adiate the terms of the Will (1) which will
have the effect that I will forfeit my own estate in favour of our son Joseph and I will
receive the usufruct of both estates. (1)

Witnesses: (1)
1 . ________
2.________ _-
______________
Surviving spouse (1)

I the undersigned,
Robert Davids,
an attorney, hereby certify that I have explained to the said Judy Wilson the
consequences of either accepting or repudiating the joint Will of herself and the
deceased (1). That she intimated that she fully understands the consequences of
either accepting or repudiating the Will (1), and that she had after due consideration
elected to accept the Will (1 ).

Witnesses: (1)
1 . _______ _
2 . ________
________________
Attorney (1)

Q15

Joel Steyn died on the 1st of May 2018. He died childless and was survived by
his spouse Ruth Steyn to whom he was married out of community of property.
Ruth was nominated as the executrix in his Will and she approaches you to act
as her agent in the administration of his estate. She informs you that she was
not present at his deathbed and she did not identify his body after his death.
No estate duty is payable. While administering the estate you realize that you
will be unable to lodge the liquidation and distribution account to the Master of
the High Court in time as you are waiting on the Receiver of Revenue to
provide you with an income tax assessment, which is needed as the deceased
was employed at the time of death.
Make an application to the Master of the High Court requesting an extension of
time within which to lodge the account.

Answer:

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ON THE LETTERHEAD

The Master of the High Court (1)

Dear Sir

RE: ESTATE LATE JOEL STEYN N0.967/18 (1)

We refer to the above matter and request an extension of four months (1) within
which to lodge the Liquidation and Distribution Account in the above estate, which
account is due on the 30th November 2018. We advise as follows:

1. We are waiting on the Receiver of Revenue to provide us with an income tax

assessment,
which is needed as the deceased was employed at the time of death. (1)

2. All assets have been valued and all cash collected. (1)

3. At present we are holding R9 000.00 in the estate bank account and R55 000.00
in the
estate's saving account. These funds will be ne eded to meet the tax liability. (1)

4. · The estate is solvent. (1)

We look forward to hearing from you in due course.

Yours faithfully
___________

Q16

You are approached by Frank to draft his Will. He has doubts about the
success of his son
Sam's business. Frank wants to safeguard Sam's inheritance if he is declared
insolvent. Sam is married and has two children.

2.1 Draft only that clause of the Will to give effect to Frank's wishes. Do not
create a Trust. (4)

Answer: Any beneficiary who is insolvent at the time of my death[1] or becomes

insolvent by the time he/she is entitled to receive his/her inheritance [1] shall forfeit
all rights of
inheritance in terms of my Will[1], and such beneficiary's inheritance shall devolve
upon such beneficiary's intestate heirs[1].

2.2 If Frank signs the Will by the making of a mark what other formality must
the Will comply with to be valid.

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Answer: The Commissioner of Oaths must certify that he is satisfied as to the
identity of the testator [1] and the Will so signed is the Will of the testator[1]. Each
page of the Will excluding the page on which his certificate appears is also signed
anywhere on the page by the Commissioner of Oaths.
Section 2(1)(v) of the Wills Act 7 of 1953(11).

Q17

Dunstan Cele died intestate on 13 October 2016. He is survived by his wife

Xolo Cele to whom he was married out of community of property and two
major children Bongani and
Nobile. The assets in his estate are:

1. Immovable property R3 000 000,00

2. Cash R1 000 000,00
3. Movable Assets: R1 500 000,00
The Liabilities amount to R1 000 000,00.

The heirs wish to redistribute their inheritance so that Xolo inherits the
movable assets and Bongani and Nobile inherit the balance of the assets
equally.

Draw the document to give effect to the heirs' wishes

Answer:

REDISTRIBUTION AGREEMENT

MADE AND ENTERED INTO BY AND BETWEEN:

XOLO CELE
(surviving spouse of Deceased) [ ½]
And
BONGANI CELE
(major heir of deceased) [ ½]
NOBILE CELE
(major heir of deceased)
"the parties" [½]

WHEREAS:-

1. The late Dunstan Cele died on 13 October 2016. [1]

2. The parties being the intestate beneficiaries are equal heirs to the whole of the
deceased's assets. [1]

The parties agree as follows:-

1.
Xolo Cele shall be awarded the movable assets to the value of R1 500 000,00. [1]

2.

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Bongani Cele and Nombile Cele shall inherit the immovable property to the value of
R3 000 000,00 in equal shares. [2]
3.
The cash of R1 000 000,00 shall be used to pay the estate liabilities. [2]

4.
The parties acknowledge that this agreement is subject to confirmation by the Master
of the High Court. [2]

DATED AT _________________ on the ____ day of _____20_

AS WITNESSES:-
1. -----------
2.__________ _
_______________
XOLO CELE [½]
_______________
BONGANI CELE[½]
________________
NOBILE CELE [½]

Q18

Indicate whether of the following statements are true or false.

Briefly explain your answer by reference to the relevant legislation, where
applicable.

1. A competent witness in terms of the Wills Act No. 7 of 1953 means a person
over the age of sixteen or over who at the time he witnesses a will is not
incompetent to give evidence in a Court of law.
(2)

Answer: False: In terms of Section 1 of the Wills Act a competent witness means a
person of 14 years or over

2. A notice published by Executor in terms of Section 29 of Act No. 66 of 1965

may call upon all persons having claims against the estate to lodge such
claims with him/her within thirty one days from date of the latest publication.
(2)

Answer: True: The period in the notice shall be not less than 30 days or not more
than 3 Months (Section 29).

3. Collation means that the value of benefits given to a descendant during the
deceased's life time must be taken into account in determining the amount to
be awarded to such descendant. (2)

Answer: True.

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4. In terms of Section 1 (2) of the Intestate Succession Act an illegitimate child
born out of wedlock is incapable of inheriting from his biological father as well
as from his father's blood relations. (2)

Answer: False: An illegitimate child is capable of inheriting intestate from its

biological father as well as the father's blood relations.

5. Massing in terms of Section 37 of Act 66 of 1965 occurs when any two or

more persons execute a joint will in which:
 they jointly dispose of their joint estate to ultimate beneficiaries;
 the surviving testator receives a limited interest over massed property;
and
 the surviving testator repudiates the benefit.

Answer: False: The surviving testator(s) must adiate.

Q19

Henry Amis instructs you as his attorney to draw his will. He is married out of
community of property to Jane and has one minor child . Henry wants his child
to inherit his whole estate. If the child is still a minor at the time of distribution
of Henry's estate, his whole estate must be reduced to cash, but the
inheritance must not be paid into the Guardian's Fund. However, he does not
want to create a trust for the benefit of the minor
child. Henry wants his brother Kevin to be the executor of his will.

Draw a valid will of at least two pages for Henry who cannot write. He signs his
name by making an"X". (27)

Answer:

LAST WILL AND TESTAMENT

I, the undersigned,
HENRY AMIS
Identity number 481208 0038 084

Married out of community of property, with exclusion of the accrual system, to JANE
AMIS, [1]

Declare this document to be and contain my last will and testament.

1.
I hereby revoke all wills previously made by me. [2]

2.
I leave my entire estate to my son GEORGE AMIS, born on 28 February 2010. [1] If
he is still a minor at the date of distribution of my estate. I direct my executor to
reduce my entire estate to cash [1] and to pay my son's inheritance to his mother as
his natural guardian [2) who shall not be required to furnish security. [1] She shall

17
invest the funds as she in her discretion thinks fit, [1] and shall apply the interest
{and, if necessary, the capital) for the reasonable maintenance of my son. [1] She
shall pay the balance of his inheritance plus interest to him on his attaining the age
of 18 years. [2]

3.
I nominate my brother KEVIN AMIS to be the executor of this my will. [1] I grant
unto him all such powers as are allowed by law, including the power of assumption,
[1] and I direct that it shall not be required of him to furnish security for the due
performance of his functions. [1]

J de Wet
X
______________1]
____________[1)
COMMISSIONER OF OATHS
TESTATOR

4.

The inheritance of my heir, as also the fruits derived therefrom, shall be excluded
from the joint estate which may exist between my heir and any spouse of his. [1] The
inheritance and fruits shall also be excluded from the accrual of any marriage of my
heir which may be subject to the accrual system. [1]

Thus done and signed at Bloemfontein on 15 January 2017 by the testator and the
undersigned witnesses, all being present at the same time. [1]

AS WITNESSES:
P Venter
1 ________ _.[1]

______X_____
TESTATOR
KJones
2 ________ [1]

Certificate in terms of sections 2(1)(a)(v) of Act 7 of 1953

I, James de Wet. of 96 Charles Street, Bloemfontein, in my capacity as

commissioner of oaths, certify that I have satisfied myself as to the identity of the
testator [2] HENRY AMIS and that the accompanying will is the will of the testator.
[2]

Signed at Bloemfontein on 15 January 2017.

18
"J de Wet"
COMMISSIONER OF OATHS
JAMES DE WET
PRACTISING ATTORNEY
96 CHARLES STREET
BLOEMFONTEIN (1)

Q20

B, a widow, dies in 2016 leaving an estate with a net value of R 9 000 000.00.
She leaves her estate to her 2 children in equal shares.

B's husband A died in 2014 leaving an estate of R 6 000 000.00, which he left to
B in his will.

Calculate the estate duty (if any) payable in B's estate.

Answer:
In the estate of B's predeceased husband the net value was RO.OD because of the
section 4(q) deduction. (1)

In B's estate the net value is R9 000 000.00. From this is deducted R7 000 000.00
in terms of section 4A.(2) of the Estate Duty Act. [2] Because no amount was
deducted from the net value in the predeceased spouse's estate, the deduction of
R7 000 000.00 is not reduced. [1]

The dutiable amount in B's estate is thus R2 000 000.00. (1) Estate duty is payable
on R 2 000 000.00 at 20% = R400 000.00. [1]

Q21

Jessica executed a will in which she bequeathed a cash legacy of R500 000.00
to her boyfriend Surprise. Nine months later they had a serious disagreement
and Jessica drew a line through the name of Surprise in her will and wrote her
brother, Steve's name above Surprise's deleted name. She signed next to it.
Jessica died a year later and Surprise, who knew about the bequestto him,
now approaches you with the question as to whether he or Steve is entitled to
the legacy.

Advise your client fully.

Answer: The Testatrix attempted to amend her Will, and in terms of Section 2(1)(b)
of the Wills Act [1], she and two competent witnesses should sign at the amendment
[1].
Because no witnesses signed, the amendment is invalid [1] and Surprise will inherit
[1].
Steve can approach the High Court [1] and if he can prove to the Court that it was
the

19
intention of the Testatrix to effect the amendment [1], the Court can order the
amendment to be accepted even if it was not formally correct (Section 2(3)) [1].

Q22

With regard to the duty of the executor to place notices when administering
the deceased estate, explain the following:

1. Under which circumstances can an executor dative be appointed? (2)

Answer: Where the deceased did not appoint an executor in his will (1] or the
executor
appointed is not prepared or is unable to act or ceases to act or where there is no
will
[1]

2. Under which circumstances may the Master dispense with the requirement
of security by the executor? (4)

Answer: If the executor is not exempted from furnishing security by the will [1], and
he is not apparent [1], child or surviving spouse [1] of the deceased or the court
directs otherwise
[1]

3. Under which circumstances must the executor open a bank account? (1)

Answer: As soon as there is money in excess of R1 000,00 in the estate unless the
master
otherwise directs. [1]

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