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,PVL2602 TEST BANK
Question 1
Nimoy and Vickie were married in community of property. On 2 March 2011, Nimoy
died intestate.
Nimoy is survived by:
his wife, Vickie
his adopted brother, Barry;
two granddaughters, Winnie and Lisa (the daughters of Nimoy‟s predeceased
son, Celestine. Celestine was born of a previous marriage between Nimoy and
Grace);
an extra-marital son, Gary;
Harry and Isaac, the sons of Gary (Harry and Isaac were born of the marriage
between Gary and Zinzi).
At his death, the joint estate of Nimoy and Vickie amounted to R360 000 (net value
after all debts of estate have been paid). Distribute Nimoy‟s estate. (10)
ANSWER:
From Nimoy‟s relations we can exclude the following persons for the purposes of
intestate succession:
1) Barry – although he is the deceased‟s adopted brother and is a potential intestate
heir since his adoption has the effect of treating him as if he were a natural
collateral relation of the deceased, the fact that the deceased‟s has closer
relations, excludes Barry from inheriting.(1)
2) The deceased‟s grandsons Harry and Isaac – they will not inherit because their
father Gary is still alive. (1)
Distribution of the estate:
3) The first step is to divide the joint estate equally between the spouses who was
married in community of property. Each spouse obtains 50% in terms of the
matrimonial property regime. Thus R360 000 ÷ 2 = R180 000. Vickie immediately
receives R180 000 as this is the share that she entitled to in terms of matrimonial
property law. (1) [Note: She does not inherit this amount, but receives it in terms
of matrimonial property law.]
4) In addition to this, Vickie is also entitled to inherit in terms of the Intestate
Succession Act. She inherits either a child‟s portion or the ministerial amount (at
present R125 000) whichever is the greater.(1) [See section 1(1)(c) of the Act.]
5) According to the Act, a child‟s portion is obtained by dividing the deceased
estate by the number of children who have survived the deceased (1)
6) and the children who have predeceased the deceased but are survived by their
descendants (1)
7) Plus the number of spouses (1). [The explanation of this calculation is very
important and earns 3 marks for a completely correct explanation or no marks if
it is partially correct. Note that it is not only “the number of children of the
deceased”...]
8) Thus: A child‟s share is R180 000 † 3 = R60 000. (1) [Note: The estate is divided
by 3 because there are two children who survived the deceased or who left
descendants, namely Gary and Celestine, and there is one spouse, Vickie. Thus:
1
, 2+1 = 3] Therefore Vickie will inherit R125 000 (because this is greater than the
child‟s portion which is R 60 000). (1)
9) After the spouse‟s share is deducted, the residue of the deceased estate is
divided equally between the deceased‟s stirpes. Each child and his or her
descendants form a stirps.
10) The residue is: R180 000 - R125 000 = R55 000 (1)
11) Thus: R55 000 ÷ 2 (because there are 2 stirpes, Celestine & Gary) = R27 500
per stirpes. (1)
12) Thus Gary receives R27 500 and Winnie and Lisa, who are Celestine‟s
representative heirs, receive R13 750 each. (1)
QUESTION 2
2.1 While on a business trip, Tsepo met Yandi and had an affair with her. She
threatened to tell his wife, Bongile, unless he made a will leaving his entire estate to
her. In order to prevent his wife from finding out about the affair, he made a new will
in which he bequeathed his entire estate to Yandi. Discuss the validity of the will in
light of the animus testandi requirement. (3)
ANSWER:
1) The will was made under duress and the testator therefore did not have the
necessary animus testandi. (1)
2) It may also be argued that, even if he did have the animus to make a will, he
did not express his will freely and therefore the will is also invalid on this
ground. (1)
3) See Spies v Smith / Kirsten v Bailey (1)
2.2 After Tsepo‟s death, Bongile found out about the affair and was so depressed
that she wrote a suicide note in which she provided:
“I want my entire estate to go to my grandparents Joe and Sophy.”
She wrote her nickname “Bungy” at the end of this letter and committed suicide. She
is survived by her fifteen year old twin daughters, Sara and Ruth and an eighteen
year old adopted son, Reggie.
Answer the following questions on these facts:
(a) Did Bongile “sign” the document as required by the Wills Act 7 of 1953? Explain
your answer. (3)
ANSWER:
1) The Wills Act requires that a testator must sign his or her will. It does not
require a person to sign with his or her ordinary or customary signature. (1)
2) “Sign” includes the accustomed mode of signature as well as any other mode
adopted by him or her to write or sign his or her name. It may or may not be
his or her full name. (1)
3) However, a “signature” does not include a mark. (1) [A mark will, for example,
be an “X” used by an illeterate person who cannot write his or her name.]
4) The use of a nickname is not the same as making a mark. The use of the
nickname can be seen as a “signature”. The name “Bungy” can thus be seen
as Bongile‟s signature. (1)
(b) Does Bongile’s suicide note comply with all the testamentary formalities for a
valid will? Explain your answer. (3)
2
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