Law of Succession Content Notes: Semester 2
Frances du Toit
Study Unit 9
The Contents of Wills
The Modalities
• Modalities are most frequently employed to manipulate the dies cedit and/or dies venit.
(i) Conditions
• Conditional bequest = A bequest subject to the occurrence of an uncertain future event.
• The condition will only be fulfilled if the event indeed occurs at some stage in the future.
• Words that denote uncertainty (e.g., “if,” “provided” and “on condition”) often indicate
a conditional bequest, as they indicate that the relevant event may or may not occur.
• Suspensive condition = Both vesting (dies cedit) and enforceability (dies venit) are
postponed or suspended until the fulfilment of the condition. E.g., I leave my farm to A,
provided that they complete the Comrades Marathon.
• Resolutive or terminative condition = Neither dies cedit nor dies venit is postponed or
suspended – both occur on the testator’s death. The right acquired at vesting terminates
upon the fulfilment of the condition and the beneficiary will forfeit the asset concerned.
E.g., I leave my farm to A, but if they emigrate after my death, they will forfeit the farm.
• It is important to provide for an alternative beneficiary to receive the asset upon non-
fulfilment or fulfilment of the relevant condition.
• If no alternative beneficiary is appointed, the restriction or prohibition imposed on the
bequest through the condition is rendered ineffective (nudum praeceptum) and is
disregarded so that the main beneficiary takes the bequest unconditionally.
• Testamentary conditions must not be impossible to perform, unlawful to perform, run
contrary to public policy (contra bonos mores), or be too vague or uncertain to carry out.
• Should such a problematic condition be included in a testator’s will, it is disregarded
because it is treated as if it was never included in the will (pro non scripto). The
beneficiary consequently takes the bequest unconditionally.
• South African courts have confirmed that a condition aimed at the destruction of an
existing married is contrary to public policy, as it infringes on the sanctity of marriage.
• The same principle applies to conditions in total restraint of marriage, which forbid
beneficiaries from entering into marriage. However, conditions in partial restraint of
marriage, which forbid the conclusion of marriage with certain people (e.g., from a
particular racial, ethnic or religious grouping) have been held not to offend public policy.
,• Aronson v Estate Hart [1950] (A):
- The “Jewish faith and race clause” provided for the forfeiture of testamentary
benefits if a beneficiary should marry a person not born of the Jewish faith or forsake
the Jewish faith.
- The court held that a testator can, in the exercise of freedom of testation, protect
their children from the tensions/stresses that may follow from a marriage between a
Jew and a non-Jew, and the social and other perils of an inter-faith marriage.
- The condition was found not to be contrary to public policy.
(ii) Dies (also known as the time clause or term)
• Dies = A bequest subject to the occurrence of a certain future event (in other words, the
event will definitely occur at some stage in the future).
• Certainty can denote:
- It is certain that the event will occur and also when the event will occur.
- It is certain that the event will occur, but it is uncertain when.
• Suspensive dies = Vesting (dies cedit) takes place on the testator’s death, but
enforceability (dies venit) is postponed or suspended until the occurrence of a certain
future event. E.g., I leave my farm to A, but they shall receive it only upon the happening
of the first lunar eclipse after my death.
• Difference between a suspensive condition and a suspensive dies:
- If a suspensive conditional beneficiary dies prior to the fulfilment of the condition,
no right to the benefit will have vested in their estate and no right to such benefit
can devolve onto their successors.
- If a dies beneficiary dies prior to the happening of the certain future event, vesting
will already have occurred at the testator’s death and the right to the benefit will
form part of the beneficiary’s estate and can devolve onto their successors.
• Resolutive dies = Neither dies cedit nor dies venit is postponed or suspended – both
occur on the testator’s death. The right acquired at vesting will terminate upon the
happening of the certain future event. E.g., I leave my farm to A, who may keep it until
they turn 40 or until they die, after which it must go to B.
• Difference between a resolutive condition and a resolutive dies:
- Under a resolutive condition, the right concerned may terminate or it may not,
depending on whether the condition is fulfilled or not.
- Under a dies, the right will definitely terminate when the certain future event occurs.
(iii) Modus
• Modus = A bequest subject to a burden or an obligation.
• The beneficiary under a modus cannot take the benefit without also accepting the
accompanying obligation (if they cannot accept the obligation, they must reject the
benefit). E.g., I leave my farm to A, but they must pay R5 million to B within 2 years.
, • The modus is generally avoided because it is quite onerous in this sense.
• Note that a modus could be altered to a suspensive condition with a small change in
wording. E.g., I leave my farm to A if they pay R5 million to B within 2 years.
• Difference between a suspensive condition and a modus:
- Under a suspensive condition, vesting (dies cedit) is postponed until the fulfilment of
the condition.
- Under a modus, vesting (dies cedit) occurs immediately upon the testator’s death.
Substitution
• 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.
(i) Direct substitution
• The most important form of substitution from a practical perspective.
• Direct substitution = Occurs when an alternative beneficiary (referred to as a direct
substitute) takes a benefit that the instituted beneficiary cannot or will not take.
• Direct substitution most frequently occurs when the instituted beneficiary is
predeceased, disqualified from benefitting, or renounces/rejects a benefit.
• The creation of direct substitution:
- It is usually expressly provided for in the testator’s will. E.g., I leave my farm to A. If
upon my death A cannot or will not take it, it must go to B.
- It can also arise by operation of the law (ex lege) in terms of section 2C(2) of the
Wills Act – a descendant of the testator can be represented per stirpes by their
descendants if the first-mentioned descendant, whether as a member of a class or
otherwise, would have been entitled to receive a benefit from the testator’s will. The
provision is subject to the operation of section 2C(1) and will not take effect if the
context of the will points to a contrary intention on the testator’s part.
• Section 2C(2) is subject to:
- The operation of section 2C(1) of the Wills Act – it provides that where a descendant
of the testator, excluding a minor or mentally ill descendant, is together (there is
some uncertainty as to what this means – most think that the surviving spouse must
be mentioned in respect of the specific bequest) with the surviving spouse of the
testator entitled to a benefit in terms of a will and such a descendent renounces the
right to receive the benefit, that benefit shall vest in the testator’s surviving spouse.
- Whether the context of the will points to a contrary intention on the testator’s part.
