QUESTION 1
Revocation of a will entails the cancellation or annulment of a will by the testator during their lifetime. Express revocation refers to the intentional and explicit revocation of a will by the testator through a subsequent valid will or a physical act, such as tearing or burning the original will. Tacit revocation, on the other hand, occurs when the testator performs a deliberate act that is inconsistent with the continued existence of the will, such as getting divorced and subsequently remarrying.
In this case, Clause 4 of B's will states that B bequeaths his estate to his wife, A. However, their marriage was dissolved by divorce on 07 July 2023, and B remarried before he died. According to Section 2B(1)(a) of the Wills Act 7 of 1953, a will is automatically revoked by the dissolution of the testator's marriage, unless it appears from the will that the testator intended otherwise. Therefore, B's will is revoked due to the divorce, and as A is no longer the wife of B at the time of his death, she will not be able to inherit from B.
Authority: Wills Act 7 of 1953, Section 2B(1)(a)
Case law: None mentioned in the question.
QUESTION 2
2.1 No, A will not be able to inherit the house. According to the rule of public policy, a person who unlawfully causes the death of another person is disqualified from inheriting any benefit under that person's will. As D murdered her mother, testator T, she is disqualified from inheriting the house that was bequeathed to A.
2.2 The exception that will be applicable to A's position is the doctrine of dependent relative revocation. This doctrine states that if a beneficiary is disqualified from inheriting due to a specific reason, but there is evidence to suggest that the testator would have preferred an alternative disposition of the property if they had known about the disqualification, then the bequest may still be valid. However, this exception is not applicable to A's position, as there is no indication in the question that testator T would have preferred an alternative disposition of the house if she had known about D's disqualification.
Authority: None mentioned in the question.
Case law: None mentioned in the question.
2.3 D will also be disqualified from inheriting from testator T due to the rule of public policy. As D unlawfully caused the death of testator T, she is disqualified from inheriting the residue of T's estate.
Reasons:
- The rule of public policy prevents individuals who have unlawfully caused the death of another person from benefiting from their actions.
- This rule is in place to ensure that murderers are not rewarded for their unlawful actions and to protect the integrity of the legal system.
Authority: None mentioned in the question.
Case law: None mentioned in the question.
2.4 If D is disqualified from inheriting from testator T, the bequest made to D in T's will will fall into the residue of T's estate. This means that the bequest will be distributed according to the provisions of the will that relate to the residue, or if there are no such provisions, it will be distributed according to the intestate succession rules.
Authority: None mentioned in the question.
Case law: None mentioned in the question.
QUESTION 3
Provision 1:
Nature: Fideicommissary substitution
Beneficiary: B
Heir or legatee: Legatee
Vested right (dies cedit): On the death of testator AB Sterling
Enforceable right (dies venit): On the death of legatee B
Provision 2:
Nature: Usufruct
Beneficiary: A
Heir or legatee: Heir
Vested right (dies cedit): Immediately upon the execution of the will
Enforceable right (dies venit): On the death of testator AB Sterling
Authority: None mentioned in the question.
Case law: None mentioned in the question.
QUESTION 4
4.1 The form of substitution the testator is making provision for in the bequest is called a substitution fideicommissary. This is indicated by the testator's intention for the farm to pass successively to the children's eldest sons and then to their eldest sons.
Reason: The testator's provision for the passing of the farm to the children's eldest sons and then to their eldest sons indicates a conditional or contingent bequest, wherein the property is transferred from one person to another at the occurrence of a specific event (i.e., the death of the preceding beneficiary).
Authority: None mentioned in the question.
Case law: None mentioned in the question.
4.2 The validity of the provision mentioned above may be dependent on the constitutional aspects of equality and non-discrimination. If the provision discriminates against any person based on prohibited grounds such as gender, it may be deemed unconstitutional and invalid. To address this matter, the clients can consider challenging the provision in court, arguing that it violates their constitutional rights to equality and non-discrimination.
Advice:
- Consult with a constitutional law expert to assess the validity of the provision in light of the Constitution.
- If the provision is found to be discriminatory, consider initiating legal proceedings to have it declared invalid.
- The legal challenge should be supported by appropriate legal arguments and evidence to demonstrate the discriminatory nature of the provision.
Authority: The Constitution of the Republic of South Africa, 1996
Case law: None mentioned in the question.
use the current South African constitution(laws of succession) to answer the following questions; give authority and case laws to substantiate your answes. show all detailed culculations
QUESTION 1
Clause 4 of the will of B, dated 07 May 2023, reads as follows: “I bequeath my estate to my wife, A.” The marriage between A and B was dissolved by divorce on 07 July 2023. B married M on 11 September 2023 and died on 08 October 2023.
A approaches you for legal advice on whether or not she will be able to inherit from testator B. Explain to A what the revocation of a will entails and also indicate how tacit revocation differs from express revocation. Advise A on whether she will be able to inherit from B or not. (2 + 2 + 4 = 8)
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8 points
QUESTION 2
Testator T bequeathed her house to her friend A and the residue of her estate to her daughter, D in her will that was drafted and executed on 01 October 2023. A and B (B is also a friend of the testator) signed the will as the two witnesses to the will. Daughter D was so angry that her mother bequeathed the house to A, that she murdered her mother (testator T). Testator T is survived by her daughter D and granddaughter E (the child of daughter D). In respect of this set of facts:
2.1 Will A be able to inherit the house? Explain your answer. (4)
2.2 With reference to your answer to 2.1 above, ONLY indicate the ONE exception that will be applicable to A’s position. (Note: You do not need to indicate the exceptions that are not applicable, nor do you need to provide reasons why the other exceptions will not be applicable to A’s position). (2)
2.3 Advise D on whether she will be able to inherit from testator T. Provide reasons for your answer. (5)
2.4 If D will not be able to inherit from testator T, indicate what will happen to the bequest made to D in T’s will. (5)
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QUESTION 3
The testator, AB Sterling, died on 01 July 2023. He is survived by his two sons, A and B. Before his death he drafted and executed the following will:
Identify the nature of each of the above-mentioned two provisions as well as whether the beneficiary in each provision is an heir or a legatee. Also, indicate in respect of each of the two provisions the exact moment when the beneficiary’s right becomes vested (dies cedit), as well as the exact moment when the vested right becomes enforceable (dies venit). (4 x 2 = 8)
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8 points
QUESTION 4
Your clients, the children of testator X, approach you for legal advice. The late testator X made the following bequest in his will:
“I bequeath my farm to my children, sons and daughters. Following the death of my children, the farm most pass to my children’s eldest sons and following the death of the said grandsons again and in turn to their eldest sons.”
4.1 Identify the form of substitution the testator is making provision for in the bequest above. Provide a reason for your answer. (2)
4.2 Advise your clients on the constitutional aspects relating to the validity of the provision mentioned above as well as how to address the matter. (6)
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