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accrual (ius accrescendi)
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TOPIC 9: ACCRUAL (THE IUS ACCRESCENDI)Accrual (or the ius accrescendi) is the right enjoyed by
testamentary beneficiaries to share proportionally in a benefit that
another beneficiary under the same will cannot or will not take
- Accrual is the right of a testamentary beneficiary to share
proportionally in a benefit that another beneficiary under the
same will cannot or will not take.
- A beneficiary cannot or will not take a benefit in terms of a
will – the question then arises, what happens to that benefit –
where does it go?
- One possibility is accrual – that benefit can accrue to other
beneficiaries who stand to benefit in terms of that will, in
other words, that benefit is then shared between other
beneficiaries who benefit in terms of the same will.
- The other beneficiaries have the right to claim that the
benefit, that a particular beneficiary cannot or will not take
must accrue to them – they must now share proportionally in
that benefit.
Accrual operates principally when a co-heir or co-legatee has
predeceased, is disqualified from inheritance, repudiated the
benefit, or was a beneficiary to a benefit subject to a suspensive
condition that was not fulfilled
- Instances where accrual is most prevalent – when a co-heir or
co-legatee has predeceased the testator and cannot take the
benefit that was left to him in the will.
- Or is disqualified (unworthy)
- Repudiated the benefit (does not want to take the benefit)
- A benefit that is subject to a suspensive condition and that
condition was not fulfilled – then the beneficiary in whose
favour the benefit was bequeathed, but in respect of whom
the suspensive condition has not been fulfilled cannot take
the benefit (there is no vesting in that beneficiary).
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, - In these instances, ius accrescendi may operate – it is one of a
number of possibilities as to what will happen to the
particular benefit.
Accrual operates in terms of the common law and also in terms of
statute
- Statute: section 2C(1) of the Wills Act.
Whether accrual operates or not, is determined, first and foremost,
by the testator’s intention:
- Whether accrual operates or not – answer lies in the will
itself – that is dependant upon the intention of the testator.
If a testator made express provision for accrual, or expressly
excluded the operation of accrual in his/her will, the
testator’s intention regarding the operation of accrual is
readily determinable
Where direct substitution operates (either in terms of the
testator’s stipulation in the will or statutorily in terms of s
2C(2) of the Wills Act) in the event of a beneficiary’s
predecease, disqualification, repudiation or the non-
fulfilment of a suspensive condition, accrual shall not operate
- There is also a number of other ways in which one can make
the determination regarding the operation of accrual:
- Whenever there is provision for direct substitution, either in
terms of the will itself, or ex lege by operation of law (s2C(2)
of the Wills Act.
- Then you know accrual will not operate – direct substitution
always excludes accrual. Do not have to explicitly/expressly
state it in the will but you can also exclude accrual expressly
by making provision for direct substitution.
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