Case/Legislative Provision
Areas: Exclusion, Disqualification, die bloedige hand maxim
Casey NO v The Master 1992 (4) SA
505 (N)
Section 2D(1)(b) of the Wills Act.
Section 2D(1)(c) of the Wills Act
Section 4A of the Wills Act
Relevance and NB Points:
Facts: A man negligently caused the death of his wife while handling
his firearm before bed. As he attempted to depress the hammer,
while not maintaining a safe direction, his thumb slipped, the firearm
consequently went off and his wife was killed. He was disqualified
from and then approached the High Court in order to attempt to have
the Maxim 'relaxed'. The Court did not agree with him. However, he
was still able to claim his share of the joint estate as they were
married ICOP at the time.
Reasoning: Principle and public policy require that the maxim 'de
bloedige hand en neemt geen erffenis' still applies to a person who
negligently caused the death of another.
Held: Husband is disqualified from inheriting under the Will, but can
still claim his share of the ICOP joint estate.
2D Interpretation of wills
(1) In the interpretation of a will, unless the context
otherwise indicates - (b) the fact that any person was
born out of wedlock shall be ignored in determining
his relationship to the testator or another person for
the purposes of a will;
2D Interpretation of wills
(1) In the interpretation of a will, unless the
context otherwise indicates - (c) any benefit
allocated to the children of a person, or to the
members of a class of persons, mentioned in
the will shall vest in the children of that person
or those members of the class of persons who
are alive at the time of the devolution of the
benefit, or who have already been conceived
at that time and who are later born alive.
4A Competency of persons involved in
execution of will
(1) Any person who attests and signs a will as
a witness, or who signs a will in the presence
and by direction of the testator, or who writes
out the will or any part thereof in his own
handwriting, and the person who is the spouse
of such person at the time of the execution of
the will, shall be disqualified from receiving
any benefit from that will.
(2) Notwithstanding the provisions of
subsection (1)-
(a) a court may declare a person or his
spouse referred to in subsection (1) to
be
competent to receive a benefit from a
will if the court is satisfied that that
person or his spouse did not defraud or
unduly influence the testator in the
execution of the will;
(b) a person or his spouse who in terms
of the law relating to intestate
succession would have been entitled to
inherit from the testator if that testator
has died intestate shall not be thus
disqualified to receive a benefit from that
will: Provided that the value of the
benefit which the person concerned or
his spouse receives, shall not exceed the
value of the share to which that person

Section 2C(2) Wills Act
Aronson v Estate Hart 1950 (1) SA 539
(A)
Minister of Education v Syfrets Trust
Ltd NO 2006
or his spouse would have been entitled
in terms of the law relating to intestate
succession;
(c) a person or his spouse who attested
and signed a will as a witness shall not
be thus disqualified from receiving a
benefit from that will if the will
concerned has been attested and signed
by at least two other competent
witnesses who will not receive any
benefit from the will concerned.
(3) For the purposes of subsections (1),
and (2) (a) and (c) , the nomination in a
will of a person as executor, trustee or
guardian shall be regarded as a benefit
to be received by such person from that
will.
2C Surviving spouse and descendants
of certain persons entitled to benefits
in terms of will -
(1) If any descendant of a testator, excluding
a minor or a mentally ill descendant, who,
together with the surviving spouse of the
testator, is entitled to a benefit in terms of a
will renounces his right to receive such a
benefit, such benefit shall vest in the surviving
spouse.
(2) If a descendant of the testator, whether as
a member of a class or otherwise, would have
been entitled to a benefit in terms of the
provisions of a will if he had been alive at the
time of death of the testator, or had not been
disqualified from inheriting, or had not after
the testator's death renounced his right to
receive such a benefit, the descendants of that
descendant shall, subject to the provisions of
subsection (1), per stirpes be entitled to the
benefit, unless the context of the will
otherwise indicates.
[S. 2C inserted by s. 4 of Act 43 of 1992.]
Areas: Unconstitutional clauses, condition void due to
uncertainty and whether such condition amounts to 'nude
prohibition'
Facts: Case on appeal. Court a quo said clause should be
treated as pro non scripto. Now on appeal. A condition in a
will providing for a forfeiture of all benefits bequeathed to
such beneficiary under the will if he or she 'should marry a
person not born in the Jewish faith or forsake the Jewish
faith'.
Reasoning: Does not amount to nude prohibition?
Held: Wasserzug v Administrators Estate Nathanson (1944
TPD 369) overruled.
*The decision in the Natal Provincial Division in Aronson v
*Estate Hart and Others (1949 (2), S.A.L.R. 789)
confirmed.
not void for uncertainty and is not against public policy, and
is not a nude prohibition (Nudum Praeceptum?=nude/naked
promise).
Areas: Unconstitutional testamentary provisions, power of
freedom of testation, public policy, equality, unfair
discrimination

(4) SA 205 (C). – s13 Trust property
control act
Ex Parte BOE Trust Ltd 2009 (6) SA
470 (WCC), s13 TPA
Curators, Emma Smith Educational
Fund v University of KZN 2010 (6) SA
518 (SCA), s13 TPA
Facts: Basically a dude died and said that the residue of his
estate, after the death of his wife, should form part of a
trust to help matriculants further their educations but had to
be of 'european descent'. Applicants (MoE and UCT)
approached respondent to exclude the provision, but Syfrets
refused/said they were unable to do so due to 'testamentary
power and freedom of testation. The Applicants sought an
order removing discriminatory limitations from the relevant
testamentary provisions. Bursary recipients may only be of
'European Descent'. Counter Argument that the provisions
were valid due to the power of 'freedom of testation' in
South Africa, however, it has never been absolute, public
policy etc. must be considered. MoE approached the court
asking them to respect constitutional provisions of equality
etc as well as public policy. Normative influence of the
Constitution must be felt throughout the common law.
Parties: MoE and UCT = Applicants; Syfrets trust =
respondent
Reasoning: Applicants grounds:(a) s 13 of the Trust
Property Control Act which permits the Court, in certain
circumstances, to delete or vary provisions in a trust
instrument; (b) the common law, which prohibits bequests
that are illegal or immoral or contrary to public policy; and,
(c) direct application of the Constitution, more particularly,
the equality and anti discriminatory provisions of s 9. Tall
order to declare testamentary provisions 'unconstitutional'.
Power of freedom of testation is by no means unlimited,
nothing new about that. Boni Mores not static, but evolve
with society. Harksen v Lane test. Public Policy/Constitution
v Freedom of testation. According to the judge,
constitutional provisions of this nature are only applicable to
natural persons.
Held: The condition that limited eligibility to white males of
‘European descent’ = indirect discrimination based on race
and colour. The provision that excluded Jews and women =
direct discrimination on the grounds of religion and gender.
Order: In terms of an existing principle of the common law
(namely that effect is not given to testamentary provisions that
are contrary to public policy) the will was amended through
deletion of the offending references to race, gender and
religion from the will. Conditions amounted to indirect
discrimination and as such had to be removed.
Areas: Freedom of testation v Public Policy;
Facts: Applicants (trustees) approached the court to
attempt to amend certain terms of the trust. Applicants
sought to remove the word 'white' from the provisions in
question in order to ensure that the provisions were in line
with constitutional values. The court as in the Syfrets case
has the authority to amend certain testamentary provisions
if they are against public policy etc. In this case though,
which is of significance is that the testator had a substitute
provision in place in the event that the bursary
bequest became impossible to carry out.
Parties: Applicants only, Ex Parte Application. Trustees.
Reasoning: The testator provided an alternate provision
should it turn out that the bursary bequest became
impossible. This is the main point.
Held: The provisions in question were found to be against
public policy, BUT, because the testator provided a
substitute provision in the event that the bursary bequest
became impossible, this was ultimately given effect. So now
instead of a trust there are charitable donations.
Areas: Public policy vs Testamentary Power. Ability of
court to change provisions when against public policy.
Facts: Case on appeal. Court a quo found provisions did
not meet Constitutional muster and were changed
accordingly, relied partly on Syfrets. Applicants sought an
order in terms of s 13 of the Trust Property Control Act
removing discriminatory limitations from a testamentary
bursary bequest that granted bursaries to ‘European girls
born of British South African or Dutch South African parents’.

Webb v Davis NO and Others 1998 (2)
SA 975 (SCA)
Reasoning: S13 of the TPA enables a court to amend
testamentary provisions where necessary. The provision
in question was held to be against public policy and did
not meet constitutional 'muster' as the court likes to put
it.
Held: In the public sphere racially, discriminatory
testamentary dispositions would not pass constitutional
muster; public policy is rooted in the Constitution and the
fundamental values it enshrines.
The University of KwaZulu-Natal is a higher education
institution and is obliged to apply public policy.
The racially restrictive nature of the bursary fund prevented
realisation of the testator’s intentions and was, moreover, in
conflict with the public interest.
Order: Racially restrictive provisions be removed from the
testator’s will under s 13 of the Trust Property Control Act 57
of 1988.
Areas: Modus v suspensive conditions, Interpretation of
Wills, Construction of Wills,
Facts: Okay so a testator executed his Will in 1976. He
bequest his trading station to R on condition that he pay
70k in annual instalments of 10k and register a mortgage
bond. Resolutive condition or Modus? When the testator
executed his Will, he gave one of his sons Power of attorney
to essentially conduct his business on his behalf. Testator
then suffered a severe stroke and was incapacitated until his
death. He was survived by his sons. After the testator’s
incapacitation on account of the stroke, a curator bonis was
appointed to take charge of his property, but Rodney (the son)
remained in effective control of the trading store until his own
death in 1993. The legal dispute in question concerned the
proper interpretation to be given to clauses 2 and 3 of the
testator’s will.
Reasoning: Whether, on a proper construction of the will, the
bequest of the trading station vested in Rodney’s estate and
was thus transmissible to his heirs.
Counsel argued that the words ‘fall away’ in clause 3, together
with the phrases ‘subject to the conditions’ and ‘terms and
conditions’ in clauses 2 and 3, respectively, clearly indicated
that the testator had imposed suspensive conditions that had
to be fulfilled before the son could acquire a vested interest in
the estate. Since Rodney had neither paid the full amount of
R70 000 nor registered the mortgage bond, his estate could not
have acquired a vested interest that could be transmitted to
his heirs. To determine whether Rodney had acquired a vested
right to the testator’s estate, the Court turned to the terms of
the testator’s will to ascertain his intention
Court Found:
The isolated words and phrases used by the testator were not
suggestive of a clear intention.
The Court, therefore, turned to ‘the general scheme of the will’
and the ‘material facts and circumstances known to [the
testator] when he made [the will]’. The fact that Rodney had
to register a mortgage bond simultaneously with taking transfer
of the property was a clear indication that the testator
intended Rodney to acquire a vested right to the property
even before completing payment.
Court Held:
The bequest in favour of Rodney was not contingent on the
fulfilment of a suspensive condition. The inheritance was
subject to a modus which did not have the effect of delaying
vesting. Gary acquired a personal right against Rodney to
claim the balance of the R70 000. The effect of the words ‘fall
away’ was to attach a resolutive condition to the modus
which allowed for a divesting if the obligations weren't fulfilled.
Was the bequest in favour of Rodney transmissible to his heirs?
The Court concluded that the result turned on the intention of
the testator as expressed in his will.
The intention may be gathered from the nature of the right
and whether it was intended to endure only for the lifetime of
the beneficiary. On the facts of the case, the Court held that
the vested interest was a right to acquire ownership. It was not
limited in time.Testators intention was not to prevent the right
from being transmissible. Therefore, the interest vested in
Rodney was transmissible to his heirs, namely his wife.