Illegal dispositions and those against public policy

No effect is given to illegal dispositions. If, for example, the testator leaves money to set up a brothel, no effect will be given to this disposition, since its purpose is an illegal one.

Effect is also not given to those dispositions which are against public policy.^[2]

Subdivision of agricultural land

It was custom that, when Dutch people died, they gave their agricultural land to their sons in equal shares. This led, however, to the fragmentation of farms, which eventually became so small that they were no longer viable. In terms of section 3 of the Subdivision of Agricultural Land Act, 1970,^[3] therefore, the testator's capacity to subdivide his land has been limited.

To get around this legislation, a testator may leave the land to a trust or close corporation, and appoint the beneficiaries as beneficiaries of the trust or close corporation in equal shares.

Subdivision of mineral rights

The subdivision of mineral rights is based on the same principle as the subdivision of agricultural land. Therefore, in terms of section 20 of the Mineral Rights Act, a testator cannot bequest mineral rights in undivided shares to more than one person.

Fideicommissum multiplex

A fideicommissum occurs

• where a benefit is left to one person (the fiduciary); and
• where, after a period of time or after fulfilment of a condition, the benefit then goes to another person (the fideicommissary).

With regard to movable property, there may be an infinite number of fideicommissaries; this is known as a fideicommissum multiplex. Family heirlooms, for example, are sometimes passed on to the eldest daughter of the testator; when she dies, they are passed on to her oldest daughter; and so on, in perpetuity.

Where, however, there is immovable property that is the subject of a fideicommissum, only two successive fideicommissaries are permitted. If, for example, certain land is left to the eldest son of the testator and, when he dies, on to his eldest son, and upon his death to his eldest son, this is the furthest the property can go in terms of the fideicommissum multiplex. The second fideicommissary may bequeath the land to whomever he wishes.

Maintenance of surviving spouse

There is no general duty on the testator to leave anything to his surviving spouse. The Maintenance of Surviving Spouses Act, 1990 was passed to provide a remedy for surviving spouses. In terms of section 2 of this Act, the surviving spouse has a claim against the deceased estate for reasonable maintenance until her death or remarriage, provided that she is unable to support herself.^[4]

Section 3 of the Act states the factors to be considered in determining the amount of maintenance awarded, in addition to any other factor:

• the amount in the estate of the deceased spouse available for distribution to heirs and legatees;
• the existing and expected means, earning capacity, financial needs and obligations of the survivor;
• the subsistence or duration of the marriage;
• the standard of living of the survivor during the subsistence of the marriage; and
• the age of the survivor at the death of the deceased spouse.

Maintenance and education of minor children

In terms of the common law, every minor child of a deceased parent has a claim for maintenance and education against the deceased estate.^[5] This duty does not cease when the child attains majority; it runs until the child is self-supporting. It is also irrelevant that the child is legitimate or illegitimate.^[6]

If there are insufficient funds in the deceased estate to cover the total maintenance and education of minor children, the children will receive a pro rata amount.

The child's right to claim for maintenance and education has preference over all heirs and legatees,^[7] and therefore must be determined first.

The duty to support is passed on from the parent to his estate when he dies, and so it cannot be bequeathed.

With regard to the maintenance of parents, there is no law providing for this yet. If, however, the parent of a deceased child can show the need for it, it is possible that such a claim may be successful.

Pension funds

In terms of the Pension Funds Act, 1956, pension funds do not accrue to the deceased estate. It is the board of trustees of the particular pension fund which decides to whom to allocate the money. (This is usually the spouse or the children depending on the circumstances.) The testator therefore cannot bequeath his pension funds to an heir or legatee.

Right of revocation

A testator may revoke his will at any time, even if he has expressly agreed not to do so. There are two exceptions to this rule.

1. The first exception occurs in the case of a joint will, in which the testators have "massed" their property. If, after the death of one of the testators, the survivor has accepted benefits under the joint will, he cannot revoke his portion of the joint will.
2. The other exception arises in the case where certain forms of pacta successoria are embodied in antenuptial contracts. Some of these dispositions may never be revoked even if both husband and wife desire to do so.

Manner

At common law, the modes of revocation were not altogether clear. Generally, it was agreed that a testator could revoke his will

• by concluding a later will or codicil;
• by destroying the will; or,
• in so far as a legacy in a will is concerned, by ademption.

However, section 2A of the Wills Act, 1953 allows the court to condone an act of revocation if the court is satisfied that the testator intended to revoke his will or part of it, even though the will was not revoked in one of the ways recognised by the common law. It would seem, however, that a will cannot be revoked by virtue of an oral statement made by the testator even if made before a number of witnesses.

Exceptions to the general rule that a will can be revoked

In ante-nuptial contracts, duly registered in the Deeds Registry, it is possible to include provisions for the devolution of the spouses’ estates. Parties to such a contract may not unilaterally make a will that conflicts with the ante-nuptial contract. If there has been a massing (where a joint will is drawn up between two or more people who mass their estates into one common pool) and the survivor adiates (i.e. accepts the terms of the will), the survivor will receive an interest in the estate, e.g. a usufruct or fideicommissium. When the survivor dies, the property will then devolve. Note that the surviving spouse cannot unilaterally devolve his or her estate in terms of another will.

Revival of a revoked will

Although the matter is not free from doubt, the better view is that a will which has been revoked by the testator, but which is actually still in existence, may be revived by the testator by means of a subsequent reviving document, without the necessity of re-executing the original will. In light of the condonation provisions contained in section 2(3) of the Wills Act, 1953, it seems that it is no longer necessary for the will or the reviving document to be properly executed; a court may condone these documents if the requirements of the section are met.

Where, however, the will has been revoked by destruction, it cannot be revived. The revocation of a will which itself revoked an earlier will does not have the effect of reviving the earlier will; to achieve that end, re-execution is necessary.

Amendment by testator

A testator may amend a will at any time prior to death. Any limitation of the power to amend is generally unenforceable. In the case of a will executed on or after 1 January 1954, which the testator amended on or after 1 October 1992, the amendment (including a deletion, addition, alteration or interlineation), made after the will is executed, is valid only if

• the amendment is identified by the signature of the testator or of a proxy (who must sign in the testator's presence and by the testator's direction);
• the signature is made by the testator or by a proxy, or is acknowledged by the testator and, if made by a proxy, also by the proxy in the presence of two or more witnesses as set out above;
• the amendment is identified by the signatures of the witnesses in the presence of the testator and of each other, and, if the amendment has been identified by the signature of a proxy, also in the presence of the proxy; and,
• where the amendment is identified by mark, or by the signature of a proxy, a commissioner of oaths certifies on the will that he has satisfied himself as to the identity of the testator and that the amendment has been made by or at the request of the testator.

Section 2(1)(b) of the Wills Act, 1953 states that all the requirements for the execution of a valid will are required also for the execution of a valid amendment. There is a rebuttable presumption in section 2(2) of the Wills Act, 1953 that any amendment to a will took place after the execution of the will.

In all instances where an amendment is identified in the presence of a commissioner, the certificate must be made as soon as possible after the amendment has been identified. If the testator dies after the amendment is identified, but before the commissioner has made the certificate, the commissioner must as soon as possible thereafter make the certificate.

Rectification by court

It is important to note the distinction between rectification and alteration:

• Rectification occurs in circumstances where the court corrects any error in the will.
• Alteration occurs where the court alters any provision of the will.

The need for rectification arises when the will does not correctly represent the testator's intention, due to some mistake of the testator or of the person who drafted the will.

The court will rectify a will in the following circumstances:

• where there is a request to correct a clerical error or description (as when, for example, the plot number of the land bequeathed is incorrect);^[31]
• where there is a request to delete words or provisions included in error;^[32] and
• where there is a request to insert words or provisions excluded in error. This is the most difficult circumstance for the court to pronounce on, as it requires a thorough exploration of the testator's intention.^[33][34]

The court must be satisfied, on a balance of probabilities, that the will does not express the true intention of the testator, and that there is reliable evidence to show what his intention was.

Alteration or variation by the court

Where the wording of the will clearly and unambiguously reflects the intention of the testator, however, the position is otherwise, for the court will not as a general rule vary the terms of a will which can be carried out and are not illegal or contrary to public policy, unless authorized by statute to do so. The general rule is that the courts are very reluctant to alter a will. Nevertheless, the court does have a discretion, albeit a very limited one, to order a variation in truly exceptional cases, such as where there has been an unforeseen change of circumstances since the death of the testator, rendering the fulfilment of his directions practically impossible or utterly unreasonable, or which "threatens to make a shipwreck of the testator’s intention."^[35]

On change in circumstances, and where the execution of the will is impossible or unreasonable, see Ex Parte Sidelsky.

Incorrect assumptions by the testator in this context refer to those regarding his assets and liabilities.^[36]

Where strict execution would result in the failure of the bequest or the frustration of the testator's intention, see Ex Parte McDonald.

Where the will is to be altered or varied out of necessity, see Ex Parte Douallier.

Where the will is to be altered or varied because the manner of execution is not possible or would result in serious loss, see Ex Parte Dittmarn.

Future interests

The nature of an interest which is vested but not enjoyable, as opposed to one which is both vested and enjoyable, is well illustrated by the case of a legacy by the testator of "a sum of money to my daughter, payable on her attaining the age of 25 years." In such a case, the legacy is generally not conditional upon the daughter's attaining the age of 25, but the enjoyment of it merely is postponed. It follows that, on the death of the testator if the daughter is alive, dies cedit occurs, and the legacy vests in her, but dies venit only occurs when she reaches the age of twenty-five. If the daughter dies before reaching twenty-five, her right to the legacy passes to her heirs.

An example of a similar disposition is where the testator leaves "my estate to my children, the division not to take place until the death of their mother." No condition is imposed as to the children acquiring their shares, but their enjoyment merely is postponed. The death of the mother is an event which is certain to occur. It fixes the time for the division and enjoyment by the children of their shares. Upon the death of the testator, dies cedit as far as the interests of the children are concerned, but dies venit only when the death of the mother occurs. If one of the children dies before the mother, his share vests in such child's own estate.

A similar disposition is the following one in a mutual will: "The estate is bequeathed to our children, but the survivor of us is to have the possession, the children to have no right to their portions until the death of the survivor."

Valid and invalid conditions

Under the common law, it is common to say that, if anyone attacks the validity of a will, he will lose all bequests in terms of the will. Thus conditions excluding the jurisdiction of the court were considered valid. The case of Barclays Bank v Anderson changed this.

Conditions which are impossible to carry out are invalid.^[41]

Conditions regarding the insolvency of the beneficiary are valid. It is common to provide that, if the beneficiary becomes insolvent, the bequest lapses; accordingly, the bequest will not form part of the insolvent estate.^[42]

Usufruct

A usufruct, which is often confused with the fideicommissum, essentially forms part of the law of property, although it is often used in wills. A testator bequeaths the property rights to the naked owner (nudus dominus or remainderman), but the right to use, enjoy and take the fruits of the property to the usufructuary. In other words, instead of leaving the full ownership of the estate, or of a specified thing, to one person, the testator may leave the ownership to one person, subject to a usufruct in favour of another person. For example, the testator leaves "my farm to A subject to a life usufruct in favour of B". On the testator's death, both of these interests vest, the usufruct in B, and the naked ownership (nudum dominium) in A.

There are consequently two concurrent vested interests belonging to different persons in the same thing, the one enjoyable presently and the other in the future only. B's interest, the right to use the farm and to take its fruits, endures until B's death, whereupon it is extinguished; consequently B's heirs or successors acquire no rights in the farm. On B's death, A (if alive) becomes absolute owner of the farm. If A dies before B, that fact makes no difference to B's rights, for B's usufruct continues until his own death. A's ownership, subject to B's usufruct, passes to A's heirs or successors, who are bound by the usufruct until B dies.

Substitution

The testator may substitute one beneficiary for another, giving an interest to Arthur which in certain circumstances is to go to Boucher instead. There are two kinds of substitutions:

• direct (or vulgar) substitution – an interest is conferred in the alternative upon one of two persons; and
• fideicommissary substitution – an interest is conferred successively on two persons, one receiving it after the other.

Substitution, in other words, occurs when a testator appoints a beneficiary (the institute) to inherit a benefit, but at the same time nominates another beneficiary (the substitute) to take the institute's place upon the occurrence of an event, usually the institute's death.

Difference between usufruct and fideicommissum

These two interests are similar in some respects, but they differ in others. They are very much alike, in that both a usufructuary and a fiduciary have the use and enjoyment of the property for their lifetime; they differ in that, whereas a usufructuary can never automatically acquire any greater right in the property, a fiduciary's right may in his lifetime ripen into absolute ownership (if, for example, the fideicommissary dies before him).

The rights of the remainderman, either the naked owner or the fideicommissary respectively, naturally differ very considerably. In the case of a usufruct, the owner of the property has a vested right, although the owner's enjoyment is postponed, whereas the right of a fideicommissary is not vested, but rather contingent upon fulfilment of the fideicommissary condition.

It is frequently difficult to ascertain from a will which of these interests a testator intended to grant. The law reports contain numerous instances of the courts' being requested to interpret wills where one party contends that the interest is usufructuary and the other claims that it is fiduciary. The actual decisions in these cases depend on whether the testator intended to grant the remainderman, the person who is to have the later enjoyment of the property, a vested or a conditional right.

In addition to the ordinary form of fideicommissum described above, two peculiar forms are recognized by the law, a fideicommissum residui and a fideicommissum purum.

Fideicommissum residui

The fideicommissum residui is a form of fideicommissum which constitutes an exception to the general rule that the fiduciary may not alienate the fideicommissary property. It is a fideicommissum of the residue of the property left at the death of the fiduciary. Property is bequeathed to a fiduciary on condition that, on his death, whatever is left of the property is to go to another person.

The legal effect of such a disposition is that, by virtue of a rule of the Roman law, still in force in South Africa, the fiduciary is prima facie entitled in his lifetime to alienate or dispose of three-quarters of the property, but not more. Consequently, the fiduciary is only bound to transmit one-fourth of the property to the fideicommissary. If, however, the fiduciary gives security for restitution of one-quarter of the estate, the fiduciary may alienate the whole of the estate.

The fiduciary may not dispose of any of the property either by gift mortis causa or by will. It follows that the fideicommissary may claim all of the property originally granted to the fiduciary that remains in the estate of the fiduciary upon the latter's death, even if it is more than a quarter of the original property. It would seem that, if the property remaining over has actually increased in amount or value, the fideicommissary may claim all of it on the principle that the person who bears the loss is entitled to the profits.

Fideicommissum purum

This was the original form of fideicommissum in Roman law, introduced to evade the technicalities and restrictions of the ordinary law of inheritance and legacy. It was a bequest to an heir or legatee (the fiduciary) with an instruction to hand over the bequest to a third party (the fideicommissary) who was otherwise disqualified from taking.

The interests of both the fiduciary and the fideicommissary vested immediately on the death of the testator, and were therefore simultaneous and coextensive rather than successive. The interest of the fiduciary was not a beneficial one; it was purely transitory, as the fiduciary was under an immediate and continuous duty to hand the bequest to the fideicommissary.

Later, other forms of unconditional fideicommissa came to be recognised, such as the fideicommissum in diem and the fideicommissum sub modo. With the gradual assimilation of the rules relating to fideicommissa and legacies, the fideicommissum purum lost its original purpose. Its application in Roman-Dutch law was apparently extremely rare.

In Estate Kemp v McDonald's Trustee, however, Innes CJ used the concept of fideicommissum purum in an attempt to explain the juristic nature of a testamentary trust in South African law. Although criticised, this decision was subsequently followed in numerous cases. The term fideicommissum purum was used to denote generally an unconditional fideicommissum: one without any condition suspending the vesting of the interest of the fideicommissary.

In Braun v Blann & Botha NNO, however, the Appellate Division ruled that "it is both historically and jurisprudentially wrong to identify the trust with the fideicommissum and to equate a trustee to a fiduciary". Nevertheless, it remains open to the testator to create an unconditional fideicommissum, such as one sub certo die: for example, a bequest to A for ten years, and thereafter to B.

Trust

A trust may be created by will or by an act inter vivos. A testamentary trust is constituted when a testator bequeaths property to one person, called a "trustee" or an "administrator", with an instruction to administer it for the benefit of another person or other persons appointed by the will, or for an impersonal object or purpose (the so-called charitable trust).

The essential feature of a trust is the separation of the ownership or control of property from the beneficial enjoyment thereof. The trustee acquires no beneficial interest in the property, acting merely as a conduit pipe in carrying out the dispositions in favour of the beneficiary. The interest of the beneficiary in the property may vest immediately on the testator's death or at some later date, depending on the testator's intention as expressed in his will. Statutory provision has been made for the protection of trust property which is settled upon a person either inter vivos or by will, to be administered by him for the benefit of other persons.

Presumption against fideicommissa

The court, in interpreting wills, leans in favour of an absolute ownership of property having been bequeathed rather than, as occurs in the case of a fideicommissum, a burdened ownership.

For instance, whenever a will mentions two persons as beneficiaries of the same property and there is a reasonable doubt whether the testator intended

• that both of them were to have interests, the institute to have the property for life and the substitute to succeed the institute on his death (in other words, a fideicommissum); or
• that one or other of them alone should have an interest, the substitute being substituted for the institute only if the institute does not in fact succeed (in other words, a direct substitution),

there is a presumption that the disposition is not a fideicommissum, but that it is a direct substitution.

For example, suppose that the testator leaves "my farm to my son A and on A’s death to my son B." It is not clear from these words whether the testator intended that both A, and B after A, should have an interest in the farm, or whether only one of them should acquire the farm. Since there is reasonable doubt as to the intention of the testator, the court will interpret the will as conferring an absolute ownership in the farm upon one of the sons only, thereby effecting a direct substitution. This the court does by assuming that the reference in the will to A's death meant not A's death at any time, but only if it occurred before the death of the testator. It follows that the will is construed as if it were worded "I leave my farm to my son A, and if A dies before me it is to go to my son B."

This presumption arises only if there is a reasonable doubt as to the intention of the testator. Therefore, if it is shown that the testator contemplated the death of the institute as taking place not in the testator's lifetime, but only after the testator's death, the presumption does not arise; the disposition is held to be a fideicommissum. For example, where the testator was fifty-seven years of age and left a farm to his grandson aged six, subject to the condition that, if the grandson came to die without lawful descendants, the farm should revert to the testator's children, the court held that the intention of the testator was to create a fideicommissum.

The presumption in favour of a direct substitution does not arise if it is clear that the testator intended to grant different interests in the same property to two persons, not alternatively but either successively (as in the case of a fideicommissum) or concurrently (as in the case where the ownership is left to one person subject to a usufruct in favour of another); in other words, there is no presumption that the interest of the institute is an ownership subject to a direct substitution, nor is there a presumption that his interest is usufructuary and not fiduciary.

Si sine liberis decesserit clause

One of the most common conditions inserted in wills regarding property passing from one person to another is "if the former dies without leaving children," si sine liberis decesserit. For example, the testator leaves "my property to A, and if A dies without children, to B." If A succeeds to the property and dies without leaving children, the condition is fulfilled and the property vests in B; but, if A dies, leaving children, the condition is not fulfilled. The property does not go to B; instead it goes to A's children, provided they are descendants of the testator and there are no contrary indications in the will, for in these circumstances a tacit fideicommissum in favour of the children is implied by law.

The same result is obtained where the si sine liberis condition is not express but implied. If the fiduciary is a descendant of the testator, and the fideicommissary is not, then in the absence of a contrary indication in the will the further condition "if the fiduciary die without children" is implied before the fideicommissary interest can vest. Such a condition is implied in the case of fideicommissary substitution only and not in that of direct substitution.

Fideicommissum subject to a si sine liberis condition

As we have just seen, where a testator leaves property to a fiduciary (A) subject to the condition (express or implied) that, if A should come to die without issue (si sine liberis decesserit), the property is to pass over to another person (B, the fideicommissary), the law implies a tacit fideicommissum in favour of A's issue, the liberi, provided that

• the liberi are descendants of the testator; and
• there are not sufficient indications in the will of a contrary intention on the part of the testator.

It follows that, if these conditions are met, and if A dies leaving children or remoter descendants, they will inherit the property in preference to B.

Prohibitions against alienation

If property is left to an heir on the condition that the heir shall not alienate it, but no provision is made for the property passing to any other heir in case of a breach of the condition, or if no heir is specified or indicated in whose favour the prohibition is imposed, the prohibition is of no force or effect and is said to be nude (nudum praeceptum), for there is no fideicommissary.

If, however, there is a provision that, on a breach of the condition, the property is to go to a certain heir, there is clearly a fideicommissum in favour of the mentioned heir, as where the testator leaves "my farm to A, subject to the condition that he shall not alienate it, and if he does the farm shall go to B." Similarly, if a prohibition against alienation is made in favour of a class of persons, a fideicommissum is implied in favour of such class. For example, where the testator leaves "my farm to my daughter A, provided that she shall not alienate the farm out of the family," a fideicommissum is created in favour of the testator's descendants. The class to be favoured must be clearly specified; otherwise no fideicommissum is constituted.

The question of whether one or more persons or generations are bound as fiduciaries by a prohibition against alienation depends on whether the prohibition is unicum (personal) or duplex (real).

If the prohibition is personal, it applies only to the persons prohibited and is confined to them. They may not alienate the property, but the fideicommissaries, once they have succeeded to the property, may do so. A prohibition is personal when it is imposed upon a certain person or persons by name or as a class, such as "children" (but not "descendants"), as, for example, where the testator leaves his farm to "my sons A and B," or "to my sons," or "to my children," and prohibits them from alienating it out of the family. The restraint is personal to the children only or to the sons only, as the case may be. On their deaths, when the farm has descended to their heirs, the restraint is removed and the fideicommissum extinguished.

If, on the other hand, a prohibition is real, it binds all the persons to whom the property may descend. Not only is the first beneficiary or beneficiaries prohibited from alienating the property, but also any subsequent beneficiary to whom it may descend as a result of the fideicommissum. A prohibition is real when it is clearly the testator's intention to make it binding on successive or recurring generations, as when the testator prohibits his "descendants" from alienating the farm out of the family.

It is, however, enacted by the Immovable Property (Removal or Modification of Restrictions) Act, 1965 that, after the commencement of the Act (1 October 1965), any fideicommissum created in favour of more than two successive fideicommissaries shall be limited to two, whatever the wording of the will. Where the fideicommissum was created before the commencement of the Act, only two successive fideicomrnissaries are permitted from the date of the will. If, at the date of commencement, two or more fideicommissary substitutions have already taken place, the fideicommissum shall be terminated at the date of commencement.

Fideicommissum upon fideicommissum

A fideicommissum may be imposed upon a fideicommissum, as where the testator leaves "my farm to A; on A's death after me it is to go to B; on B's death after A it is to go to C". In this case, B's interest is fideicommissary in respect of A's interest, and fiduciary in respect of C's interest. A familiar instance of such a disposition occurs in the case of a prohibition against the alienation of property out of a family, for there a fideicommissum is imposed on each successive generation; subject now, of course, to the statutory limit on the duration of fideicommissa.

Compendiosa substitutio

This is both a fideicommissary and a direct substitution in respect of the same persons. For example, the testator leaves ‘my farm to A, and on his death it is to go to B; if A dies before me it is to go to B’. The object of this double substitution which was in use in former times was to ensure that B would succeed if the fideicommissum collapsed owing to the fiduciary predeceasing the testator. Today the double substitution is superfluous.

Ownership subject to a usufruct with a direct substitution as to the usufruct at the testator’s death

For example, the testator leaves "my farm to my son A, subject to a life usufruct to my sister B, or if B has predeceased me, to my sister C." The legal effect of this disposition is that, on the testator's death, the ownership of the farm vests in A, if he is then alive—subject to a life usufruct in favour of B, for whom C may be directly substituted. In other words, if B is then alive, she acquires the usufruct of the farm, and C acquires no rights. If B dies before the testator, but C is alive upon his death, C acquires the life usufruct.

Ownership subject to a usufruct as to which there is a fideicommissary substitution

For example, the testator leaves "my farm to my son, subject to a life usufruct to my mother, and on her death a life usufruct to my wife." On the testator's death, the ownership of the farm vests in the son, if he is then alive, and the usufruct vests in the mother, if she is then alive. The wife, however, acquires no vested interest, for her right is conditional on her surviving the mother. The wife's usufruct vests only if and when she is alive at the time of the mother's death. If the mother predeceases the testator, but the wife is alive at his death, then of course the usufruct vests in the latter.

Ownership subject to a usufruct with a direct substitution as to the ownership at the testator’s death

For example, the testator leaves "my farm to my wife for her life, the farm to go on my death to my son A, or if A has predeceased me, to my son B." On the testator's death the usufruct of the farm vests in his wife if she survives him, and the ownership of the farm subject to the usufruct vests in A, or, if A has predeceased the testator, in B.

Ownership subject to a usufruct with a direct substitution as to the ownership at the death of the usufructuary

For example, the testator leaves "my estate to my wife for her life, and on her death it is to be divided equally among our children or such of them as may then be alive." On the testator's death, the usufruct of the estate vests in the widow, and on her death the ownership of the estate vests in the surviving children, these being directly substituted for the original group which consisted of the surviving children and those who predeceased their mother.

Fideicommissum in which one fideicommissary is directly substituted for another

For example, the testator leaves "my farm to X and if X dies after me without children, it shall go to Y, but if X dies leaving children it shall go to X’s children." A fideicommissum of the farm is constituted, X being the fiduciary and the fideicommissary either X's children or Y, the latter being directly substituted for the children in the event of X dying without leaving children. A similar disposition is effected where the testator leaves his farm "to my son A and on A’s death after me to A’s eldest son; if A has no son then alive, to A’s eldest daughter." A simple form of disposition, with the same effect, is where the testator institutes "my wife sole heir and after her decease our children, and in case of the predecease of any child his lawful descendants."

Abatement of legacies

If, after the debts of the testator have been paid, the estate is insufficient to satisfy all the legacies in full, they are reduced proportionately or "abated". There is a presumption that abatement applies to all the legacies unless the will shows a clear intention to the contrary. A will may, of course, make express provision for abatement, for example the abatement of annuities in the event of a shortfall of income. It would appear that South Africa law draws no distinction between specific and general legacies for the purposes of abatement.

The order of distribution among the beneficiaries in an estate which is unable fully to discharge all the legacies is analogous if not identical with the order of distribution in insolvency. The beneficiaries have personal claims against the estate and they are in the position of creditors who cannot all be paid in full. The preferred legatees correspond to the secured creditors, and the other legatees to the concurrent creditors. The preferred legatees have preference and are satisfied in full and the balance is divided proportionately among the remaining legatees. The heirs in such a case get nothing at all.

Express provision concerning accrual

The testator may make express provision for a right of accruallapsing of the share of one of several beneficiaries by substituting the remainder in his place; for example, where he leaves his estate "to my children and if any of them predecease me, his share shall pass to the others," or "shall revert to the estate," or "to my children, or such of them as may be alive at my death".

On the other hand, the testator may expressly negative any accrual to the original beneficiaries where he directs that upon the lapsing of a share it shall go to some third person or persons, e.g. where he appoints "my children as my heirs and if any of them predecease me his lawful descendants shall take his share."

No provision concerning accrual

In the absence of any contrary indication in the will as to the testator's intention the ius accrescendi takes place where the beneficiaries have been appointed jointly, or re et verbis; but not where they have been appointed to separate shares, or verbis tantum. It is important to note, however, that even if the form of joinder of heirs in a will is verbis tantum the intention of the testator may be otherwise. It is in the will that indications of the testator's opinion must be sought but it is permissible and sometimes essential to read and interpret the will in the light of the relevant circumstances existing at the time of its making.

Thus there is generally a right of accrual where the appointment is joint, e.g. "to A and B jointly," or simply "to A and B," or "to our three sons." On the other hand, there is prima facie no right of accrual where the appointment is verbis tantum, i.e. to separate shares—e.g. where the property is left "to A and B in equal shares," or where the estate "is to be divided into five portions each of which is to go to a specified person," or where "the property is to be divided among the children, share and share alike"—and clearly not where separate and distinct portions of a farm are left to various beneficiaries.

In order that the ius accrescendi should operate where the beneficiaries are appointed verbis tantum, it must appear from the will that the testator positively contemplated the lapse of a specific share, and that the testator intended that such share should in that event accrue to the other beneficiaries. It has been suggested that such an intention appears where the testator appoints two or more persons "sole and universal heirs."

The rules relating to the ius accrescendi apply not only where the interest disposed of is ownership but also where it is a fideicommissary interest, or a usufruct, or a right to income under a trust; but not where it is a fiduciary interest, and adiation has taken place, for the interest has then vested.

Once an interest has vested in the beneficiaries there can be no ius accrescendi, because if one of the beneficiaries dies his share vests in his estate. There is an obvious exception in the case of a usufruct; on the death of one of the usufructuaries, his interest accrues to the other usufructuaries.