Your clients, the children of testator X, approach you for legal advice. The late testator X made the following bequest in his will:

Question

“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)

Answer 1

4.1 The form of substitution the testator is making provision for in the bequest above is a substitution by representation.

This can be inferred from the clause stating that after the death of the children, the farm should pass to the children's eldest sons. It indicates that the grandchildren will inherit the farm in place of their deceased parents. The provision for subsequent generations also reinforces the idea of substitution by representation, as it allows for the farm to be transferred to the eldest sons of the grandchildren.

4.2 From a constitutional perspective, the provision mentioned above may raise concerns regarding the perpetuity rule. The perpetuity rule limits the period during which an interest in property can be controlled beyond the testator's lifetime. If a provision violates this rule, it may be deemed invalid.

To address this matter, your clients should consult with an estate planning attorney who specializes in wills and trusts. The attorney will review the specific laws and regulations in your jurisdiction regarding the perpetuity rule and determine if the provision in the bequest complies with them. If the provision is determined to be invalid, the attorney can assist in making the necessary amendments to ensure the validity of the bequest. It is important to ensure that the bequest is structured in a way that avoids any potential conflict with the constitutional and legal requirements.