QUESTION 1 Law of Succession (PVL2602)

a.Wanda and Xavier were married out of community of property with the accrual system. Wanda died intestate and left her husband, Xavier, as well as the following surviving relatives:

Her son, Ben. Ben was born out of wedlock from a relationship she had before she got married.

Her daughter, Francis, born from her first marriage to Yoda. Francis refused to inherit from her mother.

Francis' son Gerald.

Her granddaughter, Dina, the daughter of her predeceased daughter Celeste, who was born from her marriage to Xavier.

Her son, Evert, born from her marriage to Xavier.

Her mother, Mary.

Wanda's estate is worth R500 000 and she is entitled to R100 000 accrual from Xavier's estate.

Calculate how Wanda's estate is going to devolve, giving reasons for your calculations. If a relative will not inherit, explain why this is so.

b.Thabo was an entrepreneur and by the age of thirty he was already a billionaire. He decided to try out online dating. He met Sonia online and fell madly in love. Six weeks after meeting her in person for the first time, he became very sick and was hospitalised. At times, he was delirious and did not recognise his parents when they visited him in hospital. Sonia also visited him and told him that she was expecting their child. She urged him to make a will in which he makes provision for their child. He asked her to arrange for his secretary to come to the hospital. When his secretary arrived, she found him very sick and weak and in a state of confusion. Sonia was also present and told Thabo that he intended to make a will to provide for their child. Thabo dictated a short will to his secretary, leaving all his possessions to Sonia and their child. He signed the will and two nurses, who were present when he signed, also signed the will as witnesses. Thabo died the next day. After his death his parents, who were his nearest blood relatives, were surprised to find out that he had left his entire estate to someone they had never met. After a few months, it also became clear that Sonia was not expecting a child.

They approached you, an attorney, for advice. What will you advise them? Explain a course of action and all possible arguments that can be raised in this matter, to them. Also explain the chances of succeeding with your suggested course of action. Refer to relevant case law to support your arguments.

c.Testator Tom's will provides as follows: To my son, Kobus, I leave my farm Sandfontein. When he turns 60 years of age, the farm must go to my grandson, Koos, and then when he turns 60, to his eldest son, Tebogo.

Give a definition of each of the following legal concepts and indicate whether they appear in this provision. Give reasons for your answer:

(i) Suspensive condition

(ii Resolutive time clause

(iii) Fideicommissary substitution

d.If a will is made in a country other than South Africa, which legal system's formalities must be complied with for the will to be valid in terms of South African law? Choose the most correct answer:

[1] The law of the country where the will was executed.

[2] The law of the country where the testator was domiciled or habitually resident at the execution of the will or at the time of his or her death.

[3] The law of the country where the testator was a citizen at the execution of the will or at the time of his or her death.

[4] All of the above.

e. Testator Tom provided as follows in his will: "I leave my house to my wife, Wendy. The residue of my estate I bequeath to my sisters, Mary and Nina." Tom and Wendy were killed in the same car accident. Tom's only surviving relatives were his sisters, Mary and Nina, and his brother Ben. Wendy was survived by her sister, Susan. Who inherited Tom's house?

[1] Mary and Nina, since they are Tom's testate heirs.

[3] Susan, since she inherited the house from Wendy.

[2] Wendy, since that was what Tom provided in his will.

[4] Mary, Nina and Ben, since they are Tom's intestate heirs.

f.The capacity given to an existing trustee to appoint an additional trustee is called:

[1] Substitution

[2] Treuhand

[3] Power of assumption

[4] Power of appointment

g.Testator Xolisa provided as follows in his will: "I leave my yacht to my two sons, Bongani and Andile." After his death, Xolisa's only surviving relatives were his son Andile, his daughter Denise and his grandson Gavin. Gavin was the son of Bongani, who died before the testator. Who inherited Xolisa's yacht?

[1] Andile, because Bongani and Andile were joined re et verbis and therefore Bongani's share accrued to Andile.

[2] Andile and Gavin, since Gavin substituted Bongani ex lege in terms of section 2C(2) of the Wills Act 7 of 1953.

[3] Andile and Denise, since Denise inherited in place of her predeceased brother.

[4] Andile, Denise and Gavin, since they were the intestate heirs.

h.The Master may dispense with the appointment of an executor if ...

[1] the deceased died intestate.

[2] the value of the estate is less than R250 000.

[3] the value of the estate is less than R125 000.

[4] the beneficiaries apply to the Master not to appoint an executor.

i.Ben and Charmaine were married in community of property. Ben murdered Charmaine. In the light of recent case law, which of the following benefits will Ben be permitted to receive after Charmaine's death?

[1] Ben's share of the joint estate.

[2] Charmaine's pension benefits.

[3] Maintenance in terms of the Maintenance of Surviving Spouses Act 27 of 1990.

[4] None of the above.

j.Testator Thabo provided as follows in his will: "I bequeath my farm to my son, Sipho, provided that he obtains an LLB degree within 6 years. If he does not, my sister Anele will inherit the farm." This bequest provides an example of ...

[1] an absolute bequest.

[2] a direct substitution.

[3] a suspensive time clause.

[4] a fideicommissary substitution.

k.Which one of the following persons will not be able to claim maintenance from the deceased in terms of the Maintenance of Surviving Spouses Act 27 of 1990? [1] The deceased's wife in a monogamous Muslim marriage.

[2] The deceased's wife in a polygamous Muslim marriage.

[3] The deceased's heterosexual life partner.

[4] The deceased's homosexual life partner in a civil union.

l.If a charitable trust becomes impossible to carry out to the letter, the court will allow it to be carried out for a purpose as near as possible to the original purpose. This is called ...

[1] the variation of a trust.

[2] a power of appointment.

[3] the cy prs doctrine.

[4] the ad pias causas concept.

m.What is the process called where a court adds, deletes or changes something in a will because the testator had made a mistake when making the will and the will does not reflect his intention correctly?

[1] Rectification

[2] Deletion

[3] Alteration

[4] Ratification

n.Testator Tom provided as follows in his will: "I leave my house to my daughter, Dalene, provided that she never leaves South Africa permanently."This bequest.. [1] is a nudum praeceptum.

[2] creates a trust in favour of Dalene.

[3] is subject to a suspensive condition.

[4] postpones dies venit for Dalene.

o.Testator Tyson made a valid will in 2018. In 2019 he decided that he wanted to change the name of one of the beneficiaries. He used "tippex" to erase the name and wrote in the name of the new beneficiary. Will this amendment be valid?

[1] Yes, provided he signed next to the amendment.

[2] Yes, provided he and two witnesses signed next to the amendment.

[3] Yes, provided a commissioner of oaths attached the certificate required by section 2(1)(a)(v) of the Wills Act 7 of 1953.

[4] No, because one is not allowed to use "tippex" in a will. The will should have been retyped and re-executed.

p.What is the principle called according to which the executor of an estate must, under certain circumstances, take benefits given to certain heirs by the deceased during his or her lifetime into account when distributing the estate among certain beneficiaries?

[1] Election

[2] Prelegacy

[3] Bequest price

[4] Collation

q.Which court may interpret a will?

[1] A High Court

[2] A magistrate's court

[3] A special court for interpreting wills

[4] A magistrate's court and a High Court

r.Which of the following persons cannot inherit from a deceased person in terms of intestate succession law?

[1] A prodigal

[2] The child of the deceased born outside of a valid marriage

[3] An unborn child, if he or she is born alive after the death of the deceased

[4] A juristic person, such as the SPCA

S. Set of facts:

Tom died in 2020. Tom had made a valid will in 2018 in which he provided as follows:

(1) I leave my beach house to my sister, Siyabonga. If she emigrates before my death, the house must go to my brother, Ben.

(2) I leave my BMW motorbike to my friend, Fanie. Fanie must pay R20 000 to my brother Ben within 6 months of my death.

(3) I leave my house in Pretoria to my daughter, Deirdre. If Deirdre dies without children, the house must go to my brother Ben after her death.

(4) The residue of my estate I leave to my children Deirdre, Carl and Kholisa in equal shares.

(5) To my wife, Wendy, who never loved me, I leave nothing.

a. The bequest of the beach house to Siyabonga is ...

[1] an inheritance.

[2] subject to a modus.

[3] subject to a fideicommissum.

[4] subject to a direct substitution in favour of Ben.

b. The bequest of the motorbike to Fanie is ...

[1] subject to a modus.

[2] subject to a condition.

[3] subject to a time clause.

[4] subject to a direct substitution in favour of Ben.

c. The bequest of the house to Deirdre ...

[1] is subject to a usufruct in favour of Ben.

[2] creates a fideicommissum tacitum in favour of Deirdre's children.

[3] is subject to a direct substitution in favour of Ben.

[4] is subject to a suspensive condition.

d. The bequest of the residue of the estate to the children is known as ...

[1] a legacy.

[2] accrual.

[3] an inheritance.

[4] a prelegacy.

e. Disinheriting the wife in the last clause ...

[1] is contra bonos mores.

[2] makes the will invalid.

[3] is allowed in SA law.

[4] cannot be given effect to.

f. Testator Sam made a valid will, but at a later stage decided that he wanted to revoke the will. Which of the following methods would NOT constitute a valid revocation of the will?

[1] Sam declared before witnesses that he was revoking his will.

[2] Sam drew a line through all the pages of the will.

[3] Sam made a new will in which he included a clause revoking the previous will. [4] Sam made a new will the provisions of which were completely contrary to the provisions of the first will.

g. Which one of the following statements is the correct version of the court's decision in Ex parte Graham 1963 (4) SA 145 (D)?

[1] When persons die in the same disaster, there is no presumption about the order of their deaths in our law.

[2] When persons die in the same disaster, there is a presumption in our law that the eldest person died first.

[3] When persons die in the same disaster, there is a presumption in our law that they died simultaneously.

[4] When persons die in the same disaster, the presumptions about the order of death are only relevant in our law if the persons are related to each other.

h. In which of the following circumstances will a trust not be terminated?

[1] If there is no beneficiary.

[2] If the court terminates the trust.

[3] If the object of the trust has been realised.

[4] If there is no trustee.

i.What is the golden rule when interpreting a will?

[1] Effect must be given to the intention of the testator.

[2] Effect must be given to the intention of the testator as expressed in his or her will.

[3] Effect must be given to the intention of the testator as expressed in his or her will or expressed orally before witnesses.

[4] Effect must be given to the intention of the testator as expressed in his or her will and considering expressions of intention made by the testator prior to his or her death.

j.Testator F provides as follows in his will: "I leave my farm to my two friends, S and T." This is an example of a joinder ...

[1] re.

[2] re tantum.

[3] re et verbis.

[4] verbis tantum.

k.If a charitable trust becomes impossible to carry out to the letter, the court will allow it to be carried out for a purpose as near as possible to the original purpose. This is called ...

[1] the cy prs doctrine.

[2] the variation of a trust.

[3] a power of appointment.

[4] the ad pias causas concept.

l. In terms of section 20 of the Trust Property Control Act 57 of 1988, if the trustee's estate is sequestrated or placed under judicial management, he or she may be removed from office by the ...

[1] Master.

[2] beneficiaries of the trust.

[3] other trustees of the trust.

[4] other trustees in co-operation with the beneficiaries of the trust.

m.Testator Tom provides as follows in his will: "I leave my estate in trust to my trustee, Xanadu. My wife, Wendy, must receive the income from the trust during her lifetime. At her death, my children Peter and Joe must receive the capital of the trust." Who is the owner of the trust property after Tom's death?

[1] Wendy.

[2] Xanadu.

[3] Peter and Joe.

[4] Wendy, Peter and Joe.

n.In our law, which mistakes in a will can be rectified?

[1] Typing errors only.

[2] Typing errors and words that were inserted by mistake only.

[3] Typing errors, words that were inserted by mistake as well as words omitted by mistake.

[4] None, because rectification does not form part of our law.

o.Which of the following benefits are subject to collation?

[1] Birthday presents to children.

[2] Expenses incurred for a child's education.

[3] Benefits given with a view to a child's marriage.

[4] Benefits paid to a child for services rendered.

QUESTION 2

(a) Xavier and Wanda were married in community of property and had three children, Anna, Grace and Ben. Anna died in 1999, leaving her two children, Deon and Carl. Ben was married and had a daughter, Linda. Xavier died intestate in February 2019, leaving behind Wanda, Grace, Ben and his three grandchildren, Deon, Carl and Linda. He also left his father, Fred. Xavier and Wanda's joint estate was worth R800 000. Calculate how Xavier's estate will devolve and indicate the amount each person will receive. Give reasons for your calculations.

(b) Xeno and Vera were married out of community of property with the accrual system. They had two children: Abel and Bobby. Abel was married and had two children, Paul and John. Xeno also had a child, Ethel, from a previous marriage. Ethel died in 1999 and left an adopted daughter, Sandy. Xeno died intestate in December 2020 and left behind Vera, Abel, Bobby, Paul, John and Sandy. Xeno's estate amounts to R900 000. Vera is entitled to R100 000 as accrual from her marriage to Xeno. Calculate how Xeno's estate will devolve and give reasons for your calculations.

(c) Xolani dies intestate and leaves the following relatives: His father, Fred. His grandfather, Greg, on his mother's side. (His mother predeceased him.) His half-brother, Bongani, who was born out of his mother's first marriage to Kabelo. Sam, the son of Xolani's predeceased full brother Dino. The total value of Xolani's estate is R800 000. Explain the devolution of Xolani's estate, giving reasons for your calculations.

d.) Sect of facts:

Seventeen-year-old Zola went on holiday to Durban with his two best friends, sixteen-yearold Joseph and eighteen-year-old Moses. While swimming in the sea, Zola was attacked by a shark, which bit off his right arm. His friends rushed him to hospital. In the hospital, Zola decided to make a will. He dictated the will to Moses, who wrote down his instructions. In this one-page will, Zola left his car to Moses, R5 000 to Joseph and the residue of his estate to his grandparents who raised him. Zola, who was right-handed, then made a thumbprint with his left hand at the end of the will and Joseph and a nurse signed as witnesses. Zola died a few hours later. He was survived by his father and his grandparents.

Answer the following questions on these facts:

(i) Was Zola old enough to make a will? Explain your answer.

(ii) Was Joseph old enough to be a witness to the will? Explain your answer. (iii) Does Zola's will comply with all the testamentary requirements for a valid will? Explain your answer.

(iv) Suppose the will is invalid. What advice could you give Zola's grandparents that would enable them to inherit under the will?

(v) Discuss the capacity of Joseph and Moses to inherit under the will.

e.) Indicate how the bequeathed benefit will devolve in the following scenarios. Give reasons for your answers:

(a) "I leave my estate to my best friends Andrew and Ben." Andrew dies before the testator.

(b) "I leave my estate to my two sons, Andrew and Ben. If one of them does not inherit, his share will go to my daughter, Dina." Andrew dies before the testator but leaves a child, Charles.

(c) "I leave my house to my sister's two daughters Amelia and Betty." Amelia dies before the testator but leaves a child, Cindy.