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PVL2602 MCQ TEST BANK 2023
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LAW OF SUCCESSION - Learning unit 6:The Administration of Deceased Estates
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LAW OF SUCCESSION - LEARNING UNIT 5: Joint/Mutual Wills, Adiation/Repudiation/Election, Massing of Estates and Accrual, Succession by Contract; Interpretation and Rectification of Wills
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TOPIC 7: THE CONTENTS OF WILLS10 August 2021
•The will is the embodiment of the intention of the wishes of the testator.
• Disappointed beneficiary: there is some issue with regards to him/her in respect
of the will – that that issue is attributable to the drafter of the will. If it can be
proven, then that beneficiary has a claim for damages against the particular
practitioner.
THE MODUS
•Advise clients not to make use of onerous or burdensome
provisions. Provisions that impose some kind of burden on the
particular beneficiary.
•The modalities such as the condition and the modus, and other
provisions such as the fideicommissum = these are all examples of
onerous conditions – provisions that impose some form of burden,
some form of obligation on a beneficiary. You want to give
something to a beneficiary without requiring the beneficiary to do
something, because as soon as you attach that to your bequest, you
can get it, but something has to happen first. Therefore, you are
imposing a burden and you are making the bequest subject to some
kind of obligation. You are making an onerous bequest.
•You are imposing a burden on your particular beneficiary.
A bequest subject to a modus is one that is subject to a burden or an
obligation
- You are requiring the beneficiary to do something or not to do
something (refrain from doing something) and that is coupled to
the particular bequest that you make.
The rule applies that the beneficiary under a modus cannot take the benefit
without also accepting the accompanying obligation
- The rule that applies in respect of a modus is that if the
beneficiary wants to receive the benefit – the beneficiary must
also accept the accompanying obligation.
» If the beneficiary cannot accept the obligation, he/she must reject the
benefit
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,Example: ‘I leave my farm to my daughter, P, but P must pay R5 million to
Q within 2 years of my death’
If P accepts the farm on the testator’s death, P also accepts the
obligation to pay R5 million to Q within two years
If P rejects the farm on the testator’s death, P is under no obligation
to pay R5 million to Q within two years
o The obligation: P must pay R5 million to Q within 2 years of my
death = that is the burden.
o If the daughter P wants the farm – accepts in other words, the
benefit of the farm – P must simultaneously accept the obligation to
pay the R5 million to Q within 2 years of the testator’s death.
o “You must take the good with the bad” – the good being the benefit
(the farm) the bad being the obligation (the obligation to pay the R5
million to Q within the time stipulated).
o In order for a modus to be effective – it stands to reason – that
there must be someone to enforce the modus otherwise, it is an
ineffective provision.
o The example is an effective modus, because there is someone to
enforce it and that someone is Q, because if P accepts the benefit
of the farm and simultaneously accepts the obligation to make
payment to Q, Q obtains a ius in personam (a personal right)
against P in terms of which Q can claim payment of R5 million
within the stipulated time period.
o Q is there to enforce the modus and that makes the modus an
effective provision.
o In the absence of someone to actually enforce the obligation, the
modus becomes ineffective. That would also be the case where the
obligation is not really a legal one but merely a moral obligation.
Then there is not truly an effective modus in play – where the
obligation concerned is not a legal obligation (as in the example)
the payment of a specified monetary sum, but where it is a moral
obligation for example:
I leave my farm to my daughter P, but she must look after
my grave (see to the upkeep of my grave after my death) –
there is not really someone to enforce the modus (the
obligation) – it is more of a moral obligation than a legal
obligation.
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, Ensure that the modus (the obligation) that is imposed is an
effective one – by including someone in the bequest who
can actually enforce the modus.
In the example, it is Q who will have a personal right against
P and that personal right is enforceable in a court of law. If P
does not make payment Q can enforce payment by way of
legal action. That is a legal obligation instead of a moral one.
The modus differs from the suspensive condition:
o In terms of the example: farm to the daughter P, but P must make
payment of R5 million to Q. (in terms of the suspensive condition –
almost as if the testator is saying that he leaves his farm to his
daughter P only if P pays R5 million to Q within 2 years of the
testator’s death – that would be a suspensive condition), but the
example is not.
Only if = suspensive condition, not a modus, because
whether or not P will make that payment – that is a future
uncertainty.
vesting (dies cedit) is not postponed under a modus, but occurs
immediately upon the testator’s death
o A modus differs from a suspensive condition because the
suspensive condition postpones dies cedit. It postpones vesting
until fulfilment of the condition.
o The beneficiary who receives a benefit under a suspensive
condition will not be vested with any rights to the benefit prior to
fulfilment of the condition.
o Whereas in the case of the modus, vesting is not postponed.
Vesting occurs upon death, the beneficiary obtains a vested right –
P obtains a vested right to the farm immediately, but that vested
right is intertwined with the obligation – you can exercise your right
to the farm, P can claim the farm, but if P does not make payment
of the R5 million within 2 years of the death of the testator – Q can
sue P for the R5 million. There is no postponement of vesting. Dies
cedit happens upon death but it goes along with the obligation to
make payment to Q (in this example).
under a suspensive condition, vesting (dies cedit) is postponed until
fulfilment of the condition
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, SUBSTITUTION
17 August 2021:
7.5.1 INTRODUCTION
Substitution occurs if either the testator or the rules of the law of
succession nominate someone to inherit in the place of the instituted
(originally-appointed) beneficiary
Two principal forms of substitution operate in the South African law of
testate succession:
Direct substitution
Fideicommissary substitution
o (refers to the legal institution of the fideicommissum. The
fideicommissum is a legal institution that comes to our law from
Roman law – therefore an ancient legal institution.
Fideicommissary substitution refers to the legal institution of the
fideicommissum).
7.5.2 DIRECT SUBSTITUTION
Direct substitution occurs when an alternative beneficiary takes a benefit
that the instituted beneficiary cannot or will not take
o Direct substitution involves the appointment of an alternative
beneficiary (the direct substitute) to receive a testamentary benefit
in the event that the originally instituted beneficiary cannot or will
not take the benefit.
o There is an alternative beneficiary appointed (the direct substitute)
who will take the benefit if the instituted beneficiary (the original
beneficiary) that the testator had in mind cannot or will not take the
benefit.
Direct substitution most frequently occurs when the instituted beneficiary
is predeceased, is disqualified from benefiting or rejects a benefit
o The fact that the instituted beneficiary cannot or will not take a
benefit – that will happen principally in 3 instances:
Firstly, where the instituted beneficiary predeceases the
testator. When a beneficiary predeceases the deceased that
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