Study unit 9:

Content of wills:
SUBSTITUTION, USUFRUCT & ACCRUAL

J&R chapter 10

Please consult the study outcomes in the MOD & electronic study guide
 Substitution
• Purpose of substitution: Prevents intestate succession and accrual.
• Two forms of substitution:

Substitution

Direct substitution Fideicommissary substitution

 SUBSTITUTION

DIRECT SUBSTITUTION FIDEICOMMISSARY SUBSTITUTION

- Alternative beneficiaries - Successive beneficiaries
- “Either one or the other” - “First the one, then the other”

IMPLIED (CONDITIONAL)
EXPRESS (CONDITIONAL)
IMPLIED DIRECT - Si sine liberis decesserit
EXPRESS DIRECT - Expressly by testator in will
SUBSTITUTION - Other
SUBSTITUTION - Conferment of power of
- Ex lege substitution appointment on fiduciary by
- By testator in will
- S 2C of Wills Act 7 of 1953 testator
- Expressly

FIDEICOMMISSUM RESIDUI
S 2C(2) S 2C(1)
- General rule - Qualifies S 2C(2)
 Direct substitution
Testator names a beneficiary, also an alternative if the 1st beneficiary cannot or will not inherit.

Institutus: Instituted beneficiary (1st person).

Substitutus: Substitutory beneficiary (2nd person).
2 forms of direct substitution:
Express direct substitution:
“I bequeath my BMW to A and if he cannot or will not inherit, the vehicle must succeed to B.”
• A adiates the benefit – B inherits nothing.
• A repudiates – B inherits.

Direct ex lege – S2C of the Wills Act

1. Section 2C(1): Applicable to descendants (excluding minors and mentally ill descendants), only when the
descendant inherits together with the testator’s surviving spouse AND the descendant repudiates his/her
right to receive the benefit  benefit shall vest in the surviving spouse(statutory accrual).
2. Section 2C(2): Applicable to descendants who cannot (disqualified) or wish not (repudiated) to inherit (for
last mentioned where the descendant does not inherit together with the surviving spouse)  the
descendants of that descendant shall (per stirpes) be entitled to the benefit (statutory substitution).
 Section 2C of the Wills Act 7 of 1953
1. Section 2C(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. Section 2C(2): If a descendant of the testator … 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.
 Answer the following:
Jack, the testator, leaves his wife, Ebrezia, two adult sons, Jacob and Abraham, as well as
Jacobs’ son, Izak, behind. Indicate in each instance who will inherit in questions 1-3 and
motivate your answers.
1. “I bequeath the residue of my estate to my wife and children in equal shares.” Jacob
repudiates his benefit.
Section 2C(1) – Statutory accrual – Ebrezia will receive Jacobs’ share. Therefore Ebrezia 2/3 and Abraham 1/3.

2. “I bequeath my house to my son Jacob and my wife.” Jacob is disqualified to inherit.

Section 2C(2) – Statutory substitution – Ebrezia and Izak will inherit the house.

3. “I bequeath my house to my son Jacob.” Ebrezia and Jacob is predeceased.

Section 2C(2) – Statutory substitution – Izak will inherit the house.
 Fideicommissary substitution
• What is fideicommissary substitution? T makes provision in his
will for his whole estate/portion/specific assets to succeed to
successive beneficiaries.
• For example: “I bequeath my motorbike to B and upon B’s death
the motorbike must succeed to C and upon C’s death the
motorbike must succeed to D.” Remember: The number of
fideicommissarii iro immovable property
is limited to two fideicommissarii
(Immovable Property (Removal or
• Fideicommittens: Testator Modification of Restrictions) Act 94 of
1965). No such restrictions iro movable
• Fiduciarius: 1st beneficiary (namely B) property.

• Fideicommissarius: 2nd beneficiary (namely C, D)

"I bequeath my house to my son. On his death it must pass to my grandson, and at his
death to my great-grandson”

Testator
• Fideicommittens

Son
• Fiduciarius

Grandson
• Fideicommissarius (1)

Great-grandson
• Fideicommissarius (2)
 Fideicommissary substitution
• Difference between fideicommissary substitution and direct
substitution:
• Direct substitution: One or the other beneficiary becomes owner
(forever).
• Fideicommissary substitution: Succession of owners.
• In case of doubt: Presumption against fideicommissum. Why?
• Creation of fideicommissum:
• Expressly (fideicommissum expressum)
• Tacitly (fideicommissum tacitum)
 Fideicommissum
Fideicommissum expressum Fideicommissum tacitum
(Express) (Tacitly)

Conditional Si sine liberis decesserit

Special power of Other

appointment

Fideicommissum residui
 Fideicommissum expressum
1. Fideicommissum conditionale / Fideicommissum in diem (time):
• Fideicommissum conditionale (condition): “I bequeath my house to my wife, Veronica. On her
remarriage, the house is to go to my son, Wian.”
• Fideicommissum in diem (time): “I bequeath my house to my wife, Venus. Ten years after my death,
the house is to go to my son, Jude.”
2. Special power of appointment:
• Testator lets the fiduciarius appoint the fideicommissarius.
• “I bequeath my house to my wife, Betty. She has to determine which of our children must receive
the house on her death (after mine).
3. Fideicommissum residue:
• Property is left to the beneficiary on condition that the remainder of the property must be
transferred to the fideicommissarius.
• “I bequeath my estate to my wife and that which may remain at her death must succeed to our
children.”
• Common law restriction: Fiduciarius may only alienate ¾ of the fiduciary assets.
 Fideicommissum tacitum
1. Si sine liberis decesserit:
• The testator makes provision should his/her beneficiary die (after the testator) without children.
• “I leave my house to my daughter, Blom. If she dies without children, the house must go to my son,
Boeta.”
• What happens if Blom dies without children?
• What happens if Blom dies with children?
• Are Blom’s children tacit fideicommissarii? The testator did not expressly provide that the house
must go to them on Blom’s death.
• Du Plessis v Strauss:
• E bequeaths his farm to his son and 2 daughters with the clause: If any of my children dies
without descendants, his/her portion must succeed to the remaining children or their
descendants.
• Held: If any of the children dies with descendants, a fideicommissum tacitum is created in
favour of these descendants and they must inherit the farm.
• NB: The presumption is only applicable if the fiduciarius is a descendant of the testator.
 Fideicommissum tacitum…
2. Other: Prohibition on alienation:
• “I bequeath my farm to A. A may not sell the farm except to B.”
• A dies and B qualifies as fideicommissarius.
• A sells farm to C - B may claim the farm from the 3rd as
fideicommissarius.
• Thus: Presumption that the testator created a fideicommissum tacitum
in favour of B.
• B need not be a descendant of the testator – Du Plessis v Spies.
 Legal position of the fiduciarius
For a detailed discussion and exposition/comparison, see paragraph 10.6
of J&R.
• Fiduciarius: Becomes the owner of the fiduciary assets upon the
testator’s death.
• His ownership is subject to a resolutive condition/term which means
that he loses all his rights if the condition/term is fulfilled/lapsed.
• For example: “I bequeath my farm to my son Steve and if he dies the
farm must go to Mary.”
• Steve receives property rights upon the testator’s death and this right
lapse when he dies and Mary is still alive. If Mary dies before Steve,
then Steve will become the full owner.
• The property rights of fiduciarius entail that he may use and enjoy
the fruits but he may not alienate it.
 Legal position of the fideicommissarius

• Does the fideicommissarius have any rights whilst the fiduciarius is still owner?
• The assets are being bequeathed to the fiduciarius subject to the condition that it
must succeed to the fideicommissarius upon fulfilment of a condition or lapse of a
term.
• Problem: Is the right of a fideicommissarius subject to a suspensive or resolutive
condition?
• Suspensive condition:
• Wasserman v Sackstein: The fideicommissarius only has a spes to inherit and no vested rights.
• Cronje and Roos: fideicommissarius’ right is subject to a suspensive condition (dies cedit and dies
venit are postponed until fulfilment of the condition).
• Resolutive condition:
• Barnhoorn v Duvenhage: Fideicommissarius has a personal right which may be subject of session.
• VdM and Rowland: The right of a Fideicommissarius is subject to a resolutive condition.
“I leave my farm to my son A. Should A die childless, the farm is to go to B.” This is an example of
1. fideicommissum expressum.
2. fideicommissum tacitum.

5
3. si sine liberis decesserit clause.
4. 1 and 3 are correct.
5. 2 and 3 are correct.

“I leave my farm to A and when he dies the farm is to go to B.” This is an example of
1. fideicommissum expressum.
2. fideicommissum tacitum.
3. fideicommissum residui.
4. 1 and 3 are correct. 1
5. 2 and 3 are correct.

“I leave R1 million to A. What is left over at the time of his death should go to B.” This is an example of:
1. fideicommissum extraordinaire.

3
2. fideicommissum complex.
3. fideicommissum residui.
4. 1 and 3 are correct.
5. 1 and 2 are correct.
 SUBSTITUTION

DIRECT SUBSTITUTION FIDEICOMMISSARY SUBSTITUTION

- Alternative beneficiaries - Successive beneficiaries
- “Either one or the other” - “First the one, then the other”

IMPLIED (CONDITIONAL)
EXPRESS (CONDITIONAL)
IMPLIED DIRECT - Si sine liberis decesserit
EXPRESS DIRECT - Expressly by testator in will
SUBSTITUTION - Other
SUBSTITUTION - Conferment of power of
- Ex lege substitution appointment on fiduciary by
- By testator in will
- S 2C of Wills Act 7 of 1953 testator
- Expressly

FIDEICOMMISSUM RESIDUI
S 2C(2) S 2C(1)
- General rule - Qualifies S 2C(2)
 Usufruct
• What is usufruct: Testator bequeaths ownership to 1 person but right to use, enjoy and fruits to another.
• Owner = dominus/remainderman/nude owner.
• Person with user’s right = usufructuary.

USUFRUCT FIDEICOMMISSUM
SIMILARITIES
• One person holds right to enjoy property (usufructuary) • One person holds right to enjoy property (fuduciary)
• Another person obtains full ownership some or other • Another person obtains full ownership some or other
time (dominus) time (ultimate fideicommissary)
DIFFERENCES
• Usufructuary never obtains a real right, only a personal • Fiduciary obtains real right in fiduciary property, which
right which must be transferred to dominus passes to fideicommissary when:
• The time comes (resolutive term); or
• When an uncertain future event occurs (resolutive
condition)
 Usufruct

1.Not always easy to determine whether bequest is usufruct

or fideicommissum.
2.Effect must always be given to intention of testator as
expressed in will.
3.Presumption against usufruct in favour of fideicommissum.
 Usufruct

The following stipulation is found in a will: ‘I bequeath my

farm to my son Jan, but my widow, San, must have the
lifelong usufruct of the farm.’ Give a definition of
“usufruct” and explain when dies cedit and dies venit will
occur respectively for Jan and San.
 Accrual
• What is accrual: Right of co-beneficiaries to inherit share that co-beneficiaries
cannot/does not wish to receive.
• Relevant where co-beneficiaries:
• Is predeceased
• Is disqualified to inherit
• Repudiates benefit
• Were beneficiaries subject to an unfulfilled suspensive condition.
• For example: “I bequeath my farm to X and Y.” Y doesn’t want to inherit and X
inherits the whole farm.
• Accrual ONLY operates where no provision is made for substitution by the
testator/ex lege.
 Accrual
• Accrual ONLY operates where no provision is made for:
(a) substitution by the testator; or
(b) ex lege substitution is not applicable.

• Can you spot the difference?

1. "I bequeath my boat and camping gear to my brothers, Harvey and Zakes.” Harvey is
predeceased and is survived by his son Nkosi. Substitution or accrual?

2. "I bequeath my boat and camping gear to my sons, Harvey and Zakes.” Harvey is predeceased
and is survived by his son Nkosi. Substitution or accrual?

3. “I bequeath my boat and camping gear to my sons, Harvey and Zakes. If one of them cannot or
wish not to inherit, then Thando must inherit in his place.” Harvey is predeceased and is survived
by his son Nkosi. Substitution or accrual?
 Accrual
• TESTATOR’S INTENTION IS IMPORTANT
• Testator’s intention is clear: unambiguously indicated in his/her will that accrual
must not take place:
• [Remember firstly is substitution (expressly/ex lege) applicable?]
• If not: Testator’s intention is clear that accrual must not take place. Therefore:
• A co-legatee’s portion will fall into the residue of the deceased estate for the benefit of
the heirs.
• A co-heir’s portion will devolve on the deceased’s intestate beneficiaries.
• Otherwise:
• Co-heirs: testator intended that the entire estate must be disposed by the will = accrual must
operate;
• Co-legatees: testator intended that a specific benefit must be disposed as a whole = accrual
must operate;
• Testator intended benefit/share of benefit to revert back to estate and devolve on heirs =
accrual must not operate.
 Accrual
TESTATOR’S INTENTION IS NOT CLEAR:

• Testator’s intention deduced from clues or indications in will/surrounding

circumstances:
• Different modes:
Joinder re tantum: joined by the thing alone

Joinder re et verbis: joined by word and thing

Joinder verbis tantum: joined through words alone

 Accrual
1. JOINDER RE TANTUM
• Joinder through the thing only.
• Testator bequeaths the same thing to more than one person.
• For example: “I bequeath my bicycle to A” and in a further clause “I
bequeath my bicycle to B.”
• Presumption: Accrual takes place:
• If A can and will inherit – A and B are joint owners.
• If A cannot or will not inherit – his portion accrues to the portion of B
and he will inherit the whole of the residue.
 Accrual
2. JOINDER RE ET VERBIS
• Joinder through the thing and through words.
• Testator bequeaths the same thing in one sentence or clause to
various beneficiaries (without any reference to specific
portions/shares etc = i.e. undivided/in toto).
• For example: “I bequeath my farm to A and B.”
• Presumption: Accrual takes place:
• A can and will inherit – A and B are joint owners.
• But A can or will not inherit – B becomes owner.
 Accrual
3. JOINDER VERBIS TANTUM
• Joinder through words only.
• Testator bequeaths the same thing in one sentence or clause to various
beneficiaries in specific shares/portions etc.
• For example: “I bequeath 2/3 of the farm to A and 1/3 of the farm to B.”
• Presumption:
• Traditionally: Winstanley v Barrow - accrual does not occur.
• Modern approach: Lello v Dales – does not automatically mean that
accrual will not occur = rather a rebuttable presumption that the
testator intended that accrual should not take place.
 Accrual
Accrual v Substitution
• General rule: substitution excludes accrual.
• For example: E bequeaths his farm to his sons X and Y. X dies before E and is survived
by his son Z.
• Step 1: Is substitution applicable?
• Not express direct substitution -> testator did not provide for a substitute.
• Is direct ex lege substitution applicable -> YES section 2C(2) – X is a descendant
of E (and X cannot inherit because he is predeceased) => X will be substituted
by his son, Z. Therefore Y and Z will inherit the farm.
• Step 2: Only if substitution did not find application, then you would look at the
possibility of accrual.
• Therefore, the statutory substitution will exclude the presumption of accrual.
 Accrual
Accrual v Substitution
• Another example: E bequeaths his farm to his friends X and Y. X is predeceased and
is survived by his son Z.
• Step 1: Is substitution applicable?
• Not direct express substitution -> the testator did not provide for a substitute.
• Is direct ex lege substitution applicable? No – X is a friend of E, therefore not a
descendant of the testator as provided for in section 2C(2).
• Step 2: Substitution is therefore not applicable, now we can determine whether
accrual should take place:
• Testator’s intention is not clear.
• Look at the joinder. In this case joinder re et verbis – presumption that accrual
takes place.
• Therefore the presumption that E intended Y to inherit the whole of the farm
becomes operable.
 Accrual
Accrual v Substitution
• Another example: E bequeaths his farm to X and Y with the
provision that should one of them repudiate or be
incompetent to inherit, then his share must succeed to Z.
• Step 1: Is substitution applicable?
• The testator’s intention is clear – E made provision for substitution
and accrual is excluded.
• Step 2: Not necessary to determine whether accrual finds
application.
 Last one…
• A will contains the following provision: “I bequeath the residue
of my estate to my three friends Xoxo, Yoyo and Zozo in equal
shares.” Xoxo predeceases the testator and has a son Xoxo
junior. The testator never amended his will after Xoxo’s death.
• Discuss the devolution of the testator’s estate upon his death.
• Step 1: Substitution? No
• Step 2: Accrual? No
• Form of joinder? Joinder verbis tantum (why not re et verbis)? => rebuttable
presumption that the testator did not attend accrual to take place.
Consequences: Xoxo’s inheritance will become available to the testator’s intestate
heirs.
 Customary law of succession

• Remember: The customary law of succession is in essence a system of

intestate rules.
• A person living under a system of customary law are, however, free to
execute a will. In this will some or all of the concepts discussed in study
unit 9, can be included.
• In interesting question is whether the creation of a fideicommissum in
favour of the eldest son in the male lineage will withstand constitutional
scrutiny. In essence the use of the common law concept of
fideicommissum, will result in the same outcome as that of male
primogeniture - which was declared unconstitutional in the Bhe-decision.
 Customary law of succession
• The Constitutional Court judgment in King NO and Another v De Jager
and Others [2021] ZACC 4 (19 February 2021) in which it was held that
(inter alia) a created fideicommissum was discriminatory towards to
testator’s female descendants.
• Even though the abovementioned case did not deal with people living
under a system of customary law, the outcome of the case will, however,
have general application.
• Also see the discussion on freedom of testation in study unit 7 as well as
the case law referred to - including: King NO and Others v De Jager and
Others [2021] ZACC 4 (19 February 2021) and Harvey NO and Others v
Crawford NO and Others 2019 2 SA 153 (SCA).