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TOPIC 9
CONTENT OF WILLS: TIME CLAUSES, CONDITIONS and MODUS
1. Vesting of rights
• Vesting = a person becomes the holder of a right.
• The date vesting takes place will depend on the intention of the testator as indicated in the will.
• Vesting consists of 2 sub- moments:
- dies cedit - beneficiary obtains a vested right to claim delivery of the bequeathed benefit
unconditionally.
- dies venit - beneficiary’s right to claim delivery of the benefit becomes enforceable.
• The testator may postpone either dies cedit or dies venit, or both. If the inheritance is conditional,
dies cedit is suspended until such time that the condition is met. However, unless specifically stated,
it is presumed that the bequeathed benefit vests in the beneficiary immediately on his/her death.
• Theoretically speaking if the inheritance is unconditional dies cedit and dies venit occur immediately
on testator’s death. However, in practice dies cedit occurs at the moment of the testator’s death but
dies venit only occurs once the administration of estates takes place i.e. once the liquidation and
distribution account is confirmed (Greenberg v Estate Greenberg).
Examples:
The time of vesting (dies cedit) affects whether an asset forms part of the beneficiary’s estate.
1. ‘I leave my house to my son X. However, my wife may live in the house until she dies. à Usufruct
Unconditional inheritance: Dies cedit for X will occur on the testator’s death – obtains a vested right to the
ownership of the house. However, dies venit is postponed until the death of his mother. If X dies before the death
of his mother, the fact that dies cedit had occurred means that his vested right to the house will form an asset in
his estate.
2. ‘I leave my house to my son, X, if he obtains an LLB degree.’
Conditional inheritance: Dies cedit does not occur for X until he obtains a LLB degree. If X dies before obtaining an
LLB degree, the house will not form an asset in his estate.
Accrual does not operate once a beneficiary’s rights have vested.
3. ‘I leave my house to A and B.’
If A dies after the testator, dies cedit and dies venit would have occurred. Thus, A’s heirs and not B would be
entitled to inherit A’s share in the house.
2. Bequests
Bequests
Conditional Unconditional
bequests bequests
Suspensive Terminative Time clauses
Suspensive Terminative
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Unconditional/ absolute bequests
• Unconditional bequest = bequest which does not contain any conditions. Vesting normally takes
place on the testator’s death. The bequeathed property forms part of the beneficiary’s estate and
will pass on to his/her heirs.
Terminology:
• Legacy – specific asset e.g. house, farm, specific amount of money.
• Legatee – the beneficiary of a legacy.
• Inheritance – entire estate, a portion of the estate of the residue of the estate.
• Heir – beneficiary of an inheritance.
• Sole heir – only beneficiary of an estate.
The difference between heirs and legatees is important for the process of administration of the estate as it
affects the order of payment of beneficiaries and collation. After debts are paid, legatees are transferred the
legacies before transferring inheritances to heirs. Also, heirs may be compelled to collate certain benefits (to
account for the benefits they received during the testator’s lifetime), while legatees are not obliged to collate.
• Pre- legacy – this has precedence over all other legacies and inheritance. E.g ‘I leave R1m to X which must be
paid to her before all other beneficiaries receive their bequests.’
• Residue of the estate – what is left in the estate after everything has been paid out or transferred.
When does a legacy lapse?
A legacy will lapse or fail in the following circumstances:
1. Ademption – a form of tacit revocation of a legacy. If a testator voluntarily alienates the object of a
legacy during his/her lifetime for convenience à legacy fails. If, however, the alienation was not voluntary
(in debt) à legacy does not fail. In this case, the executor will be under an obligation to purchase the asset
for the estate or to pay the legatee the value of the asset if it is not possible to acquire it.
2. Legatee dies before the legacy vests in him or her – a beneficiary must be alive in order to inherit. *If s
2C of the WA applies, the legatee will be substituted and the legacy will not fail.
3. Legatee repudiates the legacy – if a legatee repudiates the legacy and a substitute has not been named
in the will, and if s 2C of the WA does not apply, the legacy will fall into the residue of the estate.
4. Legatee is incapable of inheriting – E.g he/she murdered the testator, the legacy will fall into the residue
of the estate.
5. Bequeathed object is destroyed – if the object of the legacy is destroyed and there is nothing which can
be inherited, it is assumed that the testator revoked the bequest.
6. Testator’s estate is insolvent – there can be no transfer of legacies to the legatees because all the assets
of the estate must be used to repay the creditors of the estate.
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Time clauses:
Death or an expiration of time à certain event ∴ vesting occurs immediately.
Although absolute bequests are made with no conditions attached, they may be made subject to a time
clause or term. Such a time clause may be either suspensive or terminative.
• Time clause – if a bequest is subject to a time clause, it is subject to an event that will certainly
happen in the future, although it may be certain or uncertain when it will arrive.
• Suspensive time clause – a bequest where the beneficiary will have to wait until a certain time to
receive the benefit.
E.g. ‘I leave my farm to my son, X, but it shall only be transferred to him when he reaches the age of
21.’ Dies cedit takes place on the death of the testator (unconditional) but dies venit is postponed
until he turns 21. à Immediate vesting, delayed enjoyment
• Resolutive (terminative) time clause – a beneficiary’s already established rights terminate when a
certain time arrives.
E.g. ‘I leave my farm to my son, X. When he dies or reaches the age of 60 years, it is to go to A.’ X
acquires ownership of the farm subject to a terminative time clause. Although it is uncertain when he
will die, it is certain that he will reach 60 or will die. Dies cedit and dies venit take place on the death
of the testator. à Immediate vesting and enjoyment
Conditional bequest
Bequest is subject to a condition à uncertain event ∴ vesting is postponed
• Conditional bequest = bequest that depends on a future event which is uncertain in the sense that it
may or may not occur.
• A condition must be clear and possible to be valid. It may not be illegal or contra bonos mores. If a
condition fails in one of these respects, it is invalid and void à condition falls away and the bequest
becomes unconditional.
• Suspensive condition – the beneficiary does not obtain a vested right to the benefit unless and until a
particular uncertain future event takes place. Thus, dies cedit is suspended until the condition is
fulfilled.
E.g. ‘I leave my racehorse stud farm to my son, X, should he win the Durban July Handicap.’
• Resolutive (terminative) condition – the bequest is made to terminate in the event of a particular
uncertain event. Dies cedit and dies venit occurs on the death of the testator but the rights terminate
if the resolutive condition is fulfilled.
E.g. ‘I leave my farm to my wife, Z. Should she remarry, my farm is to go to Y.
