ERF TUTORIALS

Tut 4

Question 1

a) In order for a Will to be valid it must comply with the four requirements for a valid
will, that being Animus Testandi, Volition, Testamentary capacity and formalities, all
of which must be in order for the will to be valid. In this instance the prior three
requirements are sufficiently provided for, but the 5 formalities as set forth by
section 2(1)(a)(i-v) of the wills act, are not sufficiently and cumulatively met which
serves to question the validity of the Will. The first issue concerns the signatures of
Cebo as per all of the subsections, who failed to sign close enough to the end of the
will as per Kidwell v The Master, did not sign in the presence of witnesses, and both
of his witnesses when signing either signed incorrectly or were incompetent. Finally,
Cebo failed to sign every page and signed with a stamp whilst not in the presence of
a commissioner of oaths to verify such signature with a certificate. Lungi’s signature
is invalid as per Ricketts v Bryne, a name printed out in capital letters may qualify as
a mark and not a signature. The same logic applies as did to Cebo, as not
commissioner was present to certify such a signing. Lungi’s daughter is also an
incompetent witness as the Wills Act sets the necessary age as 14 years old, and his
daughter is 12. Finally, the presence of an attestation clause is irrelevant with
respect to validity as the judgement of Sterban v Dixon, and at most it serves as a
record of the signature, not proof of the parties’ actions.

Summarized

1. 4 validity requirements
2. S 2(1)(a)(i-v)
3. Kidwell v The Master
4. Rickets v Bryne
5. Sterban v Dixon
6. Age of witness, 14 is set by wills act.

b) Using section 2(3) of the Wills act, a condonation application can be brought to the
Master, in order to validate the Will. There are three requirements for condonation,
being that there is a written document, which was drafted or executed(of a person
who has since died) and finally where intention was clearly that this document was
meant to serve as a will. In this instance we are dealing with a case where no
formalities were followed, as per Macdonald v The Master and Van der Merwe v The
Master, as long as the will was personally drafted it can be condoned. Where it is
drafted by someone else, it cannot be condoned according to Becker v Naude. The
final requirement is the intention for the document to be considered as a will. Since
it is personally drafted, the most relevant case here is Van Wetten v Bosch. Although
 not a letter as in that case, this appears to be a rather informal document which was
intended to be a will and furthermore, this actually served to explain how Cebo’s
estate should devolve and not merely instructions of how to draw up a will. Lena
could bring an application against these facts to rescue the will, and maintain Cebo’s
intentions.

QUESTION 2

This will require a certificate form a commissioner of oaths. Assuming all parties validly
signed the agreement according to section 2(1)(a)(v), the commissioner of oaths must be
satisfied as to the identity of the T and that the will is the intention of T, the commissioner
must then also sign every page excluding the page on which the certificate appears. The
wording is unclear as to whether or not the Commissioner should be present when the
Amanuensis sign via a mark. The Commissioner of Oaths must state that they are acting in
their capacity as a commsioner and not in another capacity.

Tutorial 5
Question 1

a) As per section 2(3) of the Wills Act, the court may condone a documented drafted or
executed by the testator who has since died provided that the document was
intended to be his will. This is a drafted letter and thus it meets the first two
requirements as per the Ex Parte Maurice test. The final requirement is that of
intention. In Maurice it was confirmed that mere instructions for a will to be created
did not meet the requirement for condonation under the test and thus this will
would not be condoned, because the document itself must have been intended to
serve as the final will.

SUMMARY:
- Section 2(3)
- First two requirments met, need 3rd requirement which is intention.
- Maurice à instructuions insufficient
- Document had to be intended to serve as the final will.
- Therefore not condoned.

b) According to the cases of Macdonald v The Master and Van der Merwe v The Master
there is a strict requirement of either a partially compliant will or a will lacking any
formality, and which is drafted personally by the testator who has since deceased.
This is confirmed in Becker v Naude where the position is currently entrenched.
Webster v The Master initiated the position and was then contended by the ruling of
Back v The Master, which took a wider interpretation and were not as strict. This was
then clarified in the SCA judgement in Becker. The mere fact that T stated that that
he was impressed with the will does not serve to validate it and there was no
 signature made by the Testator nor the witnesses. Thus, the document would
remain invalid as per the strict position in Becker.

SUMMARY:
- Section 2(3)
- Van der Merwe v The Master; Macdonald v The Master
- Webster, Back and Bekker cases
- Compared s2(3) and s2(A) and concluded that the exclusion of the words “or caused
to be drafted” was for a reason.
- Partial compliance vs no compliance (difference between two)
- Cannot be condoned because
o Not personally drafted
o No formalities

Question 2

Since there is an amendment made it must comply with the validity requirements under
section 2(1)(b) and it fits the description of an amendment as it is a deletion, cancellation or
obliteration in any manner effected particularly tippex which is valid. There are various
issues with the formalities. V signs on behalf of T, and thus a commissioner of oaths needed
to be present to certify the signature and V also should sign as close as possible to the
amendment but signed at the bottom of the page which is an invalid form of amendment.
Another formality requirement is a signature by two witnesses in the presence of the T or
amanuensis who signs or acknowledges their signature. There is only one witness, they
didn’t see the amanuensis sign and the amanuensis did not acknowledge their signature,
which renders it non-compliant. However, the witness may sign with their initials. Finally,
the wife took the document to the police station herself to be certified. Whilst police
officers may function as commissioners of oaths, they must be present to witness the
signature and satisfy themselves as to the identity of the testator and their will whilst
signing in their capacity as a commissioner which wasn’t done. Therefore, this wouldn’t be a
valid amendment.

SUMMARY:
- Dealing with validity of amendment, meets def of amendment in any manner
effected.
- Section 2(1)(b) formalities.
- 2 Witnssess, but there is only 1.
- Witness may sign with Initials though.
- Witness did not witness signature and V did not even acknowledge signature.
- V signed on behalf without commissioner present and also didn’t sign as close as
possible.
- Police officer whilst they could act as a commissioner didn’t sign in that capacity and
wasn’t there to witness signatures so invalid.
- Therefore not valid amendment.
Tutorial 6
Question 1

This is dealing with section 2B of the Wills Act which deals with the rights of a divorcee in a
will. The general rule is that where a testator dies within 3 months of a divorce, the divorcee
is treated as predeceased for the purposes of in devolution of the estate. However, as per
Louw v De Kock if there is a contrary intention evident from the wording of the will, it will
rebut this presumption. The presumption would apply because the Testator died within 2
months of the divorce, but is rebutted because of the wording “no matter what the future
holds” thus the will is not invalid and the divorcee will inherit according to the provisions.
Even if the wording wasn’t present and V wouldn’t inherit, the will would still be valid and X
and Y would inherit as normal.

SUMMARY:
- Section 2B
- If dies within 3 months of divorce, ex-spouse treated as predeceased.
- Only affects ex-spouse but other beneficiaries will benefit as per normal.
- If it applies ex-spouse wouldn’t inherit.
- However, wording infers a counter intention “no matter what the future holds”.
- Presumption rebutted.
- So V inherits.

Question 2

In order for an act of revocation to be valid, there are two requirements as set forth in the
law. That being, that there is the intention to revoke or animus revocandi and a subsequent
act of revocation. Whilst there is an act of revocation in the facts, there is no intention.

There are four kinds of common law revocation, that being destruction of the whole will,
part of the will, express revocation and implied revocation. None of these are applicable in
this instance as writing “revoked” does not constitute a destruction of the whole will
because it is in the margin and not across the face, as per Corbett et al.

It is also insufficient to be partial revocation by destruction so what is required is to

determine if a section 2A application for condonation of the revocatory act would succeed.
In order for such an act to succeed the court must be satisfied that a written indication, any
other act or that the drafting of a subsequent conflicting document is by which he intended
to revoke the will or part of the will.

A section 2A(a) application for writing would fail because Webster v The Master makes clear
that it must be writing on the original will and not a copy, therefore 2A(b) is applicable. BUT,
animus revocandi must also be present.
Since the testator was only trying to play a joke there isn’t animus revocandi and thus, the
application wouldn’t succeed.

Therefore, the will is not revoked and it will apply.

SUMMARY:
- Is it valid form of revocation?
- Four common law methods of revocation?
- This does not fall within common law methods.
- It is insufficient to be partial revocation by destruction. Will Sec 2A application
succeed?
- Section 2A – 3 requirements.
- ‘Revoked’ is a written indication on the face of the will.
- 2A(b) applicable, as he performed any OTHER act.
- 2A(a) not applicable because Webster v The Master says that it must be on the
original then.
- BUT Animus Revocandi must also be present.
- Only intended as joke, so no animus revocandi present.
- In conclusion there is no revocation here
Tutorial 7
Question 1

According to the cases of Syfrets and Emma Smith freedom of testation is protected by
section 10 and 25 of the constitution but it is not absolute. Whilst public trusts are under a
higher scrutiny, it would be improper and render a will invalid to offend public policy and
this occurs when there is unfair discrimination. There was at first a disinclination between
public and private trusts but King v De Jager removed this distinction and pointed out that
whilst a testator doesn’t need to treat family equally they still can’t unfair discriminate. Thus
the position is the same.

SUMMARY:
- Syfrets and Emma Smith
- Section 10 and 25 protect freedom of testation
- Not absolute
- Public vs private distinction removed by King v De Jager
- Therefore position the same

Question 2

This question deals with the validity of revocation for which you need animus revocandi and
an act of revocation. The common law methods are applicable in this sense in that one can
revoke by drafting a valid subsequent will, codicil, antenuptial contract or drafting of a valid
revocatory document. This is not a valid revocatory document however, because it has not
been validly executed and is thus informal, since neither the testator signed or witnesses in
line with section 2(1)(b) as required. It may be condoned in terms of 2A(c) however,
because T did draft another document showing his intention to revoke.

SUMMARY:
- Common law methods
- Note not valid, s2(1)(b)
- Section 2A
- 2A(c) showing intention.

Question 3

This concerns the formalities of a will and the capacity to inherit. The general rule under
section 4A(1) of the Wills Act states that anyone who writes out the will in their own hand
and/ or who is involved with the execution cannot themselves inherit or be a beneficiary
and neither may their spouses be at the time of execution. Under section 4A(3) being
nominated as an executor is also a benefit so she couldn’t receive that.
There are exceptions however, and under section 4A(2)(b) she may however apply to have
her disqualification lifted if she can show that she would be an intestate heir and that her
inheritance from the will is equal to or less than that intestate share. Blom v Brown also held
that a spouse who writes out a will in her own handwriting is also not limited to a s4A(2)(b)
application and can apply under s4A(2)(a) and inherit if she can show that she didn’t defraud
or unduly influence T. Nothing in the Act suggests that she is limited either.

SUMMARY:
- Involves capacity and formalities.
- 4A(1) general rule.
- 4A(2)(a) – did not defraud or unduly influence.
- 4A(2)(b) – Intestate share.
- Not limited to intestate share.
- Blom v Brown.

Question 4

4.1) The wills act defines an amendment as any addition, deletion, interlineation or
deletions, cancellations or obliterations carried out in whatever manner effected except
where it contemplates the revocation of the entire will. These acts would meet the
definitions of an amendment. Drawing lines through words with a red pen constitutes a
deletion. The changing of the amount R20’000 is an addition and interlineation. Deleting Z’s
name is an amendment and adding a new name is an addition. Both a red pen and tippex
may be used because of the clause that reads as “in any manner effected.”

SUMMARY:
- Define amendment/ deletion.
- Red pen drawing through = deletion
- Change of amount = interlineation + addition
- Scratch out name = amendment; inserting new name = addition.
- In any manner effected.

4.2) The question deals with whether the drawing of a line through clause 4 is an
amendment or a partial revocation. This is always dependent on the intention of the
testator. Usually an amendment consists of a deletion followed by an addition, where a
revocation is a deletion only. A partial revocation does not require formalities, thus drawing
a line through the clause and not adding anything was likely a partial revocation.

SUMMARY:
1. Partial revocation or amendment = depends on intention.
2. Amendement = Deletion + Addition
3. Partial revocation = Deletion only.
Tutorial 8
Question 1

Where the power is delegated to the trustee of a charitable trust, the bearer of an interim
right such as in a fideicommissum or usufructuary or where a trustee is granted the power
to appoint income and capital beneficiaries as per Braun v Blann and Botha.

Question 2

1. This is valid as it is for charitable purposes. As per Emma Smith one may discriminate
to the benefit of a previously disadvantaged group like women on the basis of
gender. The broad general power of appointment is also in order as long as the
broad charitable aim is provided.
2. This is a valid delegation to the bearer interim right. X is a fiduciary in a validly
formed fideicommissum as the holder of an interim interest. X only has use and
enjoyment but cannot alienate but may be given the right to appoint the eventual
beneficiary, the fideicommissary. It is not required that x be given a group of
persons but it is advisable.
3. This is invalid as it gives a general power of appointment to a trustee. As per Braun v
Blann and Botha such delegation is only valid where the trustee is given specifc
powers in specific conditions subject to two conditions. T had to provide a specifc
group of persons from whom the trustee had to select income and capital
beneficiaries to give specific power and not general power. If general power is given,
then it is invalid.

Question 3

3.1)This questions concerns freedom of testation and fideicommissum. Freedom of

testation. Is not absolute, as per Emma Smith and Syfrets, which held that a clause cannot
be contra bonos mores and that public policy as rooted in the constitution would not permit
such a clause. This position is confirmed as applying to private trusts as well as in King v De
Jager. It was further held that private wills would go against public policy if they
discriminated on the basis of gender as it would amount to unfair discrimination. Thus, this
would demonstrate that the clause is invalid because the T discriminates against female
descendants.

SUMMARY:
- Freedom of testation not absolute
- Contra bones mores and against public policy.
- Syfrets/ Emma Smith
- Position applies to private trusts as well – King v De Jager.
- Discrimination on gender is unfair discrimination and clause is invalid as a result.
 3.2 ) This creates a fideicommissum in which the fiduciary has dies cedit and dies venit
arrive immediately upon death and they become owner. Their ownership is limited
in duration and extent, however, in that they cannot alienate the property besides in
their will by allowing it to devolve to a specified group of persons.

SUMMARY:

- Fideicommissum
- Dies cedit and dies venit immediately upon death of T
- Fiduciary becomes owner.
- Ownership limited in DURATION AND EXTENT.

Question 4

Whether J can take transfer of the business is dependent on whether the transfer is subject
to a modus or a suspensive condition. Where a suspensive condition postpones both dies
cedit and dies venit, a modus mearly attaches an obligation and dies cedit and dies venit
occurs immediately upon the death of T. The distinction is dependent on the intention of T
as confirmed in Webb v Davis which dealt with the difference between the two kinds of
clauses. Considering that the facts are similarly it would be unreasonable to assume that this
was a suspensive condition as it makes provision for payment of the R100’000 in yearly
installments of R10’000 which would span 10 years. Therefore, this is a modus imposing an
obligation. Dies cedit and dies venit occur immediately and J would be able to take transfer
and ownership of the property. It must then be determined what kind of modus this is. It is
clearly an obligation in favor of a third party, being J’s sister, meaning that she has a
personal right to claim the payments annually to the value of R10’000 but she does not have
ownership or any other right. This personal right will then expire upon full payment of the
R100’000.

SUMMARY:
- Modus or suspensive obligation?
- Dies cedit and venit postponed under suspensive condition so no ownership.
- Dies cedit and venit vest on death if modus.
- Webb v Davies
- Intention is what matters, gather from will and surrounding circumstances.
- Just because word condition is used doesn’t mean it is one.
- Lengthy payment period shows modus, spes wouldn’t be so long.
- Considering Davis case and lengthy payment
Tutorial 9
Question 1

1.1)
a) This is a discretionary ownership trust to the benefit of the children where the
trustee is given ownership of the assets in his personal capacity to dispose of and
administer according to the provisions and parameters set out by the will.
b) Since this a discretionary trust, where the trustee chooses income and capital
beneficiaries they merely have a spes of being chosen but no rights, personal nor
real. Once chosen or appointed it depends on capital vs income beneficiary. Income
beneficiaries have dies cedit and dies venit vest immediately and have the right to
claim that income. Captial beneficiaries usually are only selected at termination of
the trust, gain dies cedit and dies venit upon such termination but only become
owner upon transfer.
c) There is a clear intention to create a trust with a clear binding obligation. The trust
document complies with the formalities of a will, and the property is determined and
trust object is clear and it is lawful. The delegation is that of specific power of
appointment and so valid under Braun v Blann and Botha and the trust is legal
because it is for the benefit taking care of dependents.

1.2) The testator did not provide for a substitute so we turn to common law accrual and
2C(2) does not apply because the beneficiary who is predeceased is a friend and not a family
member. The intention of the testator is not clear so we turn to presumptions. This would
devolve to Thabang as it is Re et Verbis, since it is the same thing being bequeathed in the
same clause to different beneficiaries without specific shares being allocated. Thus, there is
a presumption of accrual to Thabang. It can however, be rebutted.

1.3) The testator did not provide for a substitute so we turn to common law accrual and
2C(2) does not apply because the beneficiary who is predeceased is a friend and not a family
member. The intention of the testator is not clear so we turn to presumptions. This is now
verbis tantum because it is the same thing in the same clause to different beneficiaries but
with specific shares being allocated. This would mean a presumption against accrual but it is
not applied as a rule as per the Lello v Dales case. Presumption could be rebutted through
evidence like “for their loyalty.”

Question 2

2.1) This creates an obligation or modus for X, as weighed against the judgement of Webb v
Davis which speaks to the intention of a T to create a modus as opposed to a suspensive
condition. Dies cedit and dies venit occur immediately for X, becoming owner of the estate
upon transfer but with ownership which is limited in duration and extent. X also has the
personal duty to perform to his sibling Y who gains a personal right to claim payment of the
R20’000 and can enforce it. His mother V is an usufructuary with dies cedit and dies venit
happening upon death of T and gains the right to use and enjoyment of the family home
subject to a terminative/resolutive condition in which she may use and enjoy the home until
her death or remarriage, whichever arrives first.

2.2) This creates a fideicommissum. X is the fiduciary and gains dies cedit and dies venit
upon death of T and becomes the owner, with his ownership limited in duration and extent
subject to a terminative/ resolutive time clause. Y as the fideicommissary has a personal
right subject to the time clause to claim upon fulfilment.

2.3) A fideicommissum is created if X dies childless, with x as fiduciary and Y as the

fideicommissum. In terms of Du Plessis v Strauss, this is si sine liberis decesserit, clause
coupled with a condition, where the testator bequeaths his or her property to a beneficiary
stipulating that if he or she dies after the testator and dies childless the property must pass
to another, the court held there is a presumption in favour of a tacit/ implied
fideicommissum on the condition that children are descendants of T. If X dies having had
children then Y won’t inherit and instead it will pass to X’s children.

2.4) This is si sine liberis decesserit but X is a brother and therefore there won’t be a
tacit/implied fideicommissum in favour of X’s children if he has them because they won’t be
descendants of T according to Du Plessis v Straus, and dies venit and dies cedit vest in X
upon death of T.

Question 3

They can mass their estates as per section 37 of the Administration of estates act giving the
surviving spouse a limited interest in respect of the property in their massed estate, by using
any of three constructions being a usufruct, fideicommissum or trust. In each event:

When using a usufruct, the owner could be appointed as being one of their children who is
not at risk presently of becoming insolvent and the usufructuary could be made the
surviving spouse who would have the right to use and enjoyment of the property until their
death upon which time their child would become the full owner, instead of just the
dominus. Dies cedit and dies venit arrive immediately for both the child and the spouse in
respect of nude ownership and use and enjoyment separately.

In terms of a fideicommissum, the survivor could be appointed as the fiduciary and dies
cedit and dies venit would vest immediately upon death of T, but their right could be limited
in terms of having limited ownership with respect to use and enjoyment of the property. If
they cannot alienate it or dispose of it then it would protect them from insolvency.

Finally is a trust. They could establish a Bewind trust with the children as the beneficiaries
and thus the owners and where the survivor merely administers the trust. The use of
Bewind is then used to prevent the attachment of assets to settle debts because in terms of
section 12 of the TPCA, if the trustee has a beneficial interest then those assets are
attachable to settle debts so if you use bewind the children are protected because they
would be the owners.