CAPACITY TO INHERIT

Who is capable of inheriting? Any person who is alive at the time of falling open of the estate is by general rule capable of inheriting either testate or interstate.

Can a minor or mentally ill person inherit? Yes they have the capacity to.

What about the unborn child? In terms of the common law the child who is conceived but not yet born at the time of falling open of the estate may be presumed alive for the purposes of inheritance either intestate or testate and may therefore inherit. S2D(1)(c)

S2D(1)(C)

1.An already conceived child for whom a provision for a benefit has been in a will, is entitled to inherit;

2.Provided such a conceived child is born alive at the later stage

3.If not born alive there is no entitlement to inherit that arises

EXTRA-MARITAL AND ADOPTED CHILD

In terms of the common law the extra-marital child was not allowed to inherit from their  fathers intestate estate  but could inherit from their mother. The current position of the extra marital child as the interstate heir is regulated by S1(2) of the interstate Succession Act 81 of 1987.

Now, the extra-marital child including incestuous child qualifies from both parents as if he was born by parents during the existence of a valid marriage.

The adoptive child qualifies to benefit from the adoptive parent as if he was a child of such an adoptive parent during the existence of a valid marriage. An adoption order terminates the right of an adopted child to inherit from his natural parent.

The question is what happens to the estate which would have been benefited by a person who is incapable of benefiting?

Remember a person is incapable of inheriting if he:-

•Has been declared unworthy

•If he renounced or repudiated a benefit

•Or if he predeceased the deceased

In intestate succession any beneficiary or heir incapable of benefiting on either of the above grounds may be represented by his dependants per stirpes

In testate succession or where there is a valid will, only the beneficiary who is a descendant of the testator may be represented by his or her descendants per stirpes.

The question is what happens to the estate which would have been benefited by a person who is incapable of benefiting?

Remember a person is incapable of inheriting if he:-

•Has been declared unworthy

•If he renounced or repudiated a benefit

•Or if he predeceased the deceased

In intestate succession any beneficiary or heir incapable of benefiting on either of the above grounds may be represented by his dependants per stirpes

In testate succession or where there is a valid will, only the beneficiary who is a descendant of the testator may be represented by his or her descendants per stirpes.

 

The contents of a will

Beneficiaries

Is an umbrella or wide term/word referring to people who can be benefited by the testator in his will. There are also different categories of beneficiaries , which are:-

•Heirs

•Legatees

Its important for one to establish if a beneficiary is an heir or a legatee. Note it does not have to be a natural person. It can either be a company, institution and etc. depending on the testator.

NB! A testator may no bequeath some to an animal but if he wants to provide care to an animal he may establish a trust or impose a condition against his heirs or legatees to take care of such animal.

Heir

Can qualify to inherit either in terms of a will, intestate or via ANC. An heir may inherit whole, proportion or part of the inheritance.

Legatee

Only inherits a specific or determinable asset or specific amount of money. Therefore the legatee may never inherit the entire inheritance. The legatee inherits in terms of a legacy created in the will. A legatee can be nominated only in a will or anc. Therefore the legatee may not inherit intestate

A legacy is a special bequest that has preference over all other bequests in terms of a will or anc. e.g. “my son Sizwe must receive the amount of R200 000 before other beneficiary’s benefits”

The difference

üThe legatees in terms of the legacies created in the will must be paid first after the payment of testators debts, thereafter the heirs may be paid

üIf the inheritance is only sufficient to pay legatees then heirs will not be paid

üHeirs are obliged to collate, while at common law collation of benefits is not an obligation for a legatee( collation to be dealt with later)

Factors resulting in failure of a legacy

1.If testator disposes of the assets distributed under the legacy during his life time

2.If the legatee dies before legacy passes to him

3.If the legatee repudiates

4.If the legatee is unfit(unworthy) to inherit

5.If the distributed asset is destroyed

6.If the legacy is made for a specific purpose and that purpose becomes impossible to execute.

Conditions, dies,modus & substitution

There are 3 types of bequest which are:-

•The unconditional bequest (pure bequest)

•The conditional bequest, and

•The bequest subject to dies.

The unconditional bequest:- is the one that vest to the beneficiary unencumbered and immediately upon the testators death. Unencumbered means: there is nothing upon which the benefit is dependent.

Conditional bequests:- conditional bequests are always subject to an uncertain future event. By uncertain future event it is meant that there is no certainty whether something will occur or not (it might occur or it might not)

Remember when it is unclear whether the bequest is unconditional , conditional of subject to dies. The court will interpret it as unconditional.

Conditional bequest or testamentary condition

It is a particular clause or provision in a will in terms of which the existence or continuation of a beneficiary’s right regarding the benefit allocated to him is made subject to the occurrence of an uncertain future event. If it is certain that the event will take place in future then that is not a conditional bequest

There are two types of conditions

1.Suspensive condition:-  this means the benefit is suspended until the condition has been fulfilled. e.g.“ I bequeath my farm to my son provided he obtains a degree in law”

Note! This means the son has no claim (no vested right) and his claim will only arise when he obtains the degree. If he obtains it before the testator dies then his rights vest upon death of the testator (therefore fulfilling the condition)

2. Resolutive condition:- here the right to inherit vests upon death of the testator, but terminates later if the uncertain future event placed as a condition occurs. In other words the vesting of rights is not suspended it still vest upon death, the effect is that the rights terminate upon the occurrence of a condition.

e.g. “I bequeath my block of flats to my daughter, should she get married, the flats shall pass to my son”

Remember! If the condition is resolutive the beneficiary is immediately entitled to it upon death of the testator, if the condition is fulfilled later on, the beneficiary looses the benefit.

What is the legal position where the suspensive or resolutive condition is fulfilled?

This depends on if the testator has appointed an alternative beneficiary to take the benefit in case the condition placed against the original beneficiary is fulfilled. If the alternative beneficiary is appointed, then the benefit passes to that alternative beneficiary but, if no alternative beneficiary has been appointed the condition becomes useless and is ignored, as a result the original beneficiary inherits the benefit as if there was no condition.

e.g. “ I bequeath the block of flats to my daughter, provided she does not get married”

Note! the bequeath did not provide for an alternative beneficiary therefore the daughter will still inherit even if she gets married.

Lets look how suspensive and resolutive conditions are further classified

•Postestative condition: when the fulfilment of the condition is within the power of the beneficiary. “I give my farm to my son provided that he stops playing soccer” its within the sons power whether he wants or does not want to play soccer

•Casual condition:- this is when the fulfilment of the condition is not within the powers of the beneficiary. “ I leave my farm to my son provided he plays for Kaizer Chiefs in five years time” its not within the sons powers!

•Mixed condition:- fulfilment of the condition is partly within the powers of the beneficiary and partly not within his powers

•Divisible condition:- when the partial fulfilment of the condition may entitle the beneficiary to benefit;

•Indivisible condition:- when the condition has been fulfilled as a whole for a beneficiary to benefit.

Conditions that are unlawful impossible or against public policy (good morals)

If a condition is unlawful, impossible against public policy, such a condition has no legal effect and the beneficiary takes the benefit freely as if there was no condition.

Its much easier to establish the condition that is unlawful and or impossible. However in practice its not easy to determine whether the condition is against the public policy. Public policy being is based on what the public morally perceive as good or bad. The reason for the difficulty is because the perception of the public changes from generation to generation.

Based on what has been discussed, for a court to decide that a condition in a will is against public morals, the reason for such a judgement must be very convincing. Examples in which the courts have dealt with this issue are found on page 136.

Please note the whole issue of succession and freedom of testation cannot be separated from the fundamental rights of an individual that are guaranteed in the constitution of the Republic of SA.  Lets look at the foot note 53 and  the Syfrets case!

Vague and uncertain conditions

A condition whereby its not possible to determine the intention of the testator is vague and uncertain, and has no legal effect. Therefore it will be ignored.

Bequest subject to dies

The bequest that is unconditional may still be subjected to dies or time limit. A bequest subject to dies is when it is subject to future certain event. Sometime it is certain when will that future event occur and sometimes it is uncertain when the event will occur.

The difference between dies and a conditional bequest is that in a dies the event is certain to occur though sometimes it is not certain when it will take place. For a conditional bequest, the coming into existence of the rights(suspensive) or the lapsing or continuation of the rights(resolutive) is subject to the occurrence of an uncertain future event. 

e.g. bequest subject to die or time limit is “ I leave my farm to my daughter, but she will only get it once she turns 21” Or she will get it 5years after my death.

The dies can either be suspensive or resolutive. The example given is a suspensive dies. In the example given the moment of vesting(dies cedit) has not been suspended, it still vest upon death of the deceased , however, dies venit or the right to enforce the benefit has been suspended until the daughter turns 21 or until 5 years after the testator’s death.

Since the vesting takes place upon the testators death, if the daughter dies before she turns 21or before the 5years of the after the testator’s death, her beneficiary’s can inherit representing her.

A resolutive dies is when the dies cedit(vesting) and dies venit(enforcement) are both not suspended and occur at the time the testator dies, however should a certain future event take place the beneficiary will loose the rights to inherit.

e.g. “I give my house to my son Sizwe. He may keep the house until he is 40 years, after that it passes to my daughter Dudu or her descendants, if Dudu has no descendants, after her death the house go to my son Musa”

In this example Sizwe immediately acquires the house upon testator’s death subject to a resolutive dies. It is certain that if he turns 40 he will loose the inheritance. If he dies before he turns 40 he looses the inheritance upon death and it passes to Dudu and so on.

The Modus

This is when the testator gives a benefit to a beneficiary which creates a duty or obligation towards a beneficiary to either do something or not to something. e.g. “I give my house to my wife provided she pays my son an amount of R200 000. in this example the wife's entitlement to the house is immediate, but is subject to the performance of modus which is payment of R200 000 towards the son. Therefore the wife may not take the house without paying R200 00 to the son.

The wife is known as the appointed beneficiary and the son the favoured beneficiary.