On the death of a person most of his rights and liabilities continue in existence and form an aggregate commonly referred to as his ‘deceased estate’. In earlier Roman-Dutch law, as in most Continental systems still today, this estate vested in the heir. In modern South African law, however, the estate becomes vested in an executor who is the legal representative of the estate, administers it, pays the creditors and distributes the balance to the beneficiaries entitled thereto. This system of administration by the executor derives largely from English law, though the executor has an important role in Roman-Dutch and Continental law in S.A., too. The executor is placed in virtual control of the estate, except that he must act in accordance with the law and subject to the direction and supervision of the Master of the Supreme Court, in terms of the Administration of Estates Act, No. 66 of 1965.
The executor may be appointed in the will of the deceased, in which case he is an executor testamentary and is entitled to letters of executorship from the Master. Where no executor is nominated in a will, or the will is invalid, or the executor has died or is disqualified or is unwilling to act as executor – he is completely at liberty to refuse to accept the appointment – and the will appoints no substitute, the Master must take steps to appoint an executor dative by calling a meeting of the beneficiaries, the creditors and the surviving spouse. Such an executor must be chosen according to an order of precedence – namely, surviving spouse, beneficiary, creditor, or their nominees.
In certain circumstances, however, the Master may pass by any of the nominations of the meeting and, deviating from the order of precedence, may appoint any other person as executor dative, or as an additional executor dative. More than one executor may be appointed either in a will or as executors dative. Such co-executors all have equal power, say and responsibility in the estate, and must all act together, unless the will provides to the contrary. Any executor may give a power of attorney to any person to act for him, and so one executor may also appoint his co-executor to act as his agent. The appointing executor, however, remains legally responsible for the acts of his agent. If the value of the estate is R2000 or less, the Master may make his own appointment of an executor dative without convening a meeting of so-called `next of kin’, and, where the value is R600 or less, may dispense with an executor dative and himself direct the administration. Every executor is required to furnish security to the Master; this is usually done by means of a bond of suretyship from an insurance company, the cost of raising the security being chargeable to the estate. (These monetary amounts have changed considerably since 1974)
An executor testamentary is excused from finding security if the will or the court so directs, and so is any executor if he be a parent, child or surviving spouse of the testator, except that the Master may specially direct such a person, if executor dative, to furnish security. The Master himself has no power to dispense with security, but the amount of security is in his discretion – normally he requires sufficient to cover the gross value of the assets.
A corporation may be appointed as executor, but in such case the corporation must nominate one of its officers to act, the corporation remaining legally responsible for its nominee. It is not possible to appoint the Master as executor. A woman may be nominated as executor; but if she is married in community of property, the written consent of her husband is necessary for her appointment. A minor, lunatic or prodigal would be debarred from accepting appointment. There is nothing to prevent an heir or other beneficiary as such being appointed an executor. Such appointments are extremely common, but it might be wiser to appoint a disinterested person in order to secure the smooth running of the estate. The executor is required to show diligence and good faith in the administration of the estate and, when his duty and his interests conflict, may be required to withdraw temporarily from the administration. He may also be removed or suspended in certain circumstances by the Master or by order of the Supreme Court. Because it regards the executor as the personal choice of the testator or of the beneficiaries, the court will not take such action lightly, but only on clear proof of dishonesty, untrustworthiness, conflict of interest, gross inefficiency or persistent failure to discharge, or absence from, his duties. An executor who has accepted appointment may apply to the Master to be released from office, but otherwise must continue until he has completed the liquidation and distribution of the estate and obtained his discharge from the Master.
The general duties of the executor are to liquidate the estate, namely to gather in the assets and debts due to the estate, satisfy himself of the correctness of the claims of creditors of the estate, and pay them. Thereafter he must distribute the estate in terms of the will or according to the law of intestacy. He must open a bank account in the name of the estate, and must frame and lodge an account of the liquidation and distribution with the Master normally within six months or within such extended time as the Master may grant. The account must set out the value of the assets, the debts, taxes and expenses paid, and the amounts or the property allotted to the beneficiaries. The account is also employed for the purpose of calculating estate or death duties payable by the estate on property that passes to beneficiaries. Until 1955 succession duties were also payable, but were abolished in that year. Every account must lie for inspection for not less than three weeks, so that interested parties may lodge objections with the Master. There is an appeal from the Master’s decisions to the Supreme Court. Only after the accounts have been approved and all objections settled is the executor entitled to proceed to pay creditors and beneficiaries, and such persons have no legal claim before then. If the executor pays out before such time, he does so at his own risk.
As it is the executor’s duty solely to liquidate and distribute, he is not entitled to engage in business on behalf of the estate or to create new debts, except in so far as may be necessary for the preservation of the assets, or where special authority is given by the will or by the Supreme Court. Any money, other than that required for immediate necessary expenses, due to a person to whom the executor cannot for any reason make payment, such as a minor, an insane person, or a person whose whereabouts are not known and who has no agent in South Africa, must be paid by the executor or guardian concerned into the Guardian’s Fund controlled by the Master, where the money remains at interest until the beneficiary becomes entitled thereto, or his whereabouts are known. The Court may on report of the Master exempt from payment into the fund, and the Master may authorise payment out of the fund for the purpose of the maintenance, education or other benefit of the beneficiary or his dependants, or for investment in immovable property in South Africa on behalf of the beneficiary. Such payment may not exceed R4000 unless the will or the court otherwise directs. The will may, however, direct that money be not paid into the fund, but be otherwise invested in order to make better and easier provision for beneficiaries. The natural guardian of a minor may receive any movable property due to such minor if he gives security there-for to the satisfaction of the Master. The Administration of Estates Act also contains some special provisions as regards the distribution of immovable property to the beneficiaries. The system of land registration affords an opportunity for close control over the executor’s acts in relation to immovable property.
The executor is entitled to remuneration for his services. If not otherwise regulated by the will, the remuneration is determined in accordance with a tariff on a commission basis fixed by regulation and taxable by the Master of the Supreme Court.
The distribution of the estate to beneficiaries takes place either according to the deceased’s will or the law of intestacy. In these respects the law is basically Roman and Roman-Dutch, tinged, however, with certain influences from English law. The will or testament always receives preference, and intestacy only comes into operation where there is no will, or the will is invalid or has been revoked. Where the will does not dispose of the whole estate, or the heir or heirs for some reason do not or cannot take their shares, there may be intestacy as regards such portion. As a general rule, no one may dispose of his property on his death except by will, and consequently an agreement (known as a successory pact) by the deceased to make certain bequests on his death or to give property on his death is generally unenforceable, even where the promise is made for a consideration. Moreover, where outside persons make an agreement in respect of benefits due from another person’s deceased estate while the latter is still alive, such agreement is invalid, being regarded as contrary to good morals, in that it encourages speculation about another’s death. A donatio mortis causa, that is, a gift, which is to pass to a beneficiary on one’s death, has therefore to be executed according to the formalities required for a will. An antenuptial contract may, however, contain a variety of successory pacts and testamentary dispositions which may be both valid and enforceable and have preference over a will, apparently without having to conform to the formalities of a will.
A testator may not delegate his testamentary power. But he may authorise another to whom he has bequeathed an interest in property to nominate beneficiaries from a group designated by the testator to succeed to all or some of the specified property (known as a special power of appointment); or he may give him a general power to appoint any person to specified property, provided the testator indicates beneficiaries to whom the property will go, should the general power not be exercised.
Almost complete freedom of testation exists in South African law: a person may dispose of his property as he pleases, even disinheriting or omitting his children and his spouse. Under the old Group Areas Act a person may not dispose of his immovable property or give a right of occupation to a person who is not a member of the group authorised to own or occupy such property. The beneficiary in such a case will only be entitled to the money value of the bequest. But whatever the will may say, a deceased estate may be held liable to provide funds for the maintenance of minor children unable to support themselves and not adequately provided for by the will. Whether the same rule is applicable also in respect of maintenance for other children or relatives or for a surviving spouse is controversial. A recent case has ruled against such provision for widows. Claims for maintenance have preference over legacies and other bequests, being regarded as a sort of debt owing by the estate.
A will must be executed according to certain formalities. Until 1954 there was a wide variety of permitted forms, including the notarial will and several privileged wills; and the forms and rules relating to them varied from province to province, as well as in South-West Africa and Rhodesia. The Wills Act, No. 7 of 1953, introduced uniformity throughout South and South-West Africa (there has been no similar new legislation in Rhodesia) and permits two forms of will only: the statutory or underhand will (which is derived from English law) and the soldier’s will, both of which existed before. Wills executed before 1 Jan. 1954 are still governed by the old law.
The statutory will of the new law has to be signed by the testator, or by some other person in his presence and by his direction, at the foot or end of the will. The signature must be made, or alternatively acknowledged, before at least two competent witnesses present at the same time, who must sign the will in the presence of the testator and of the person signing for him (if any), and in the presence of each other. It is not necessary to have a formal attestation clause, though this is usual and facilitates the acceptance of the will. Where the will is written on more than one page, the testator and the same witnesses must also sign and attest anywhere on each page, in the same way as at the end of the will.
If the testator signs by means of a mark (as he may), or where someone else signs for him, the end of the will must contain a certificate by a magistrate, notary public, justice of the peace or commissioner of oaths that he has satisfied himself as to the identity of the testator and that it is the will of the testator, and each page must also be signed by such person. The soldier’s will is a privileged will. It must now be in writing, not necessarily that of the testator, but requires no other formalities and no witnesses. Only a person on active service in the armed forces may validly execute such a will, and the will loses its validity one year after the testator’s return from active service.
A codicil or supplement to a will is no longer different from a will and requires the same formalities. Before 1954 a codicil under a reservatory clause -empowering the testator to make an informal codicil – was in a special position in the Cape Province and in South-West Africa; but nowadays even such a codicil must be executed in the same way as a will, and the reservatory clause, which is still found or inserted in some wills, is really of no value. It is also as a rule not possible by reference to incorporate into a will any provisions of another document which is itself not a valid will. Alterations to or deletions from a will may be made freely before attestation, but it is customary and advisable for the testator and the witnesses to initial these as proof of their authenticity. After attestation, alterations, additions and deletions must be made with all the formalities of a new will, as stated below, and there is a statutory rebuttable presumption that alterations, additions and deletions found in a will were made after attestation.
Today any person of the age of 16 or more may make a will, unless at the time of execution he is mentally incapable of appreciating the nature and effect of his act. Any person of 14 or over who at the time of making the will was competent to give evidence in a court of law is a competent witness to a will; but a witness may not sign by means of a mark. If a beneficiary under a will attests as a witness to a will, his acting as a witness does not affect the will as such, but he himself is debarred from taking any bequest under the will, or from claiming any appointment of himself as executor, administrator, trustee or guardian under the will, and so is the person who is the spouse of the witness at the time of attestation in respect of a benefit, and any spouse of such witness in respect of an appointment as executor, etc. The same applies to the person who signs the will in the presence and by direction of the testator and to such person’s spouse.
A person who writes or types out a will or part of a will on behalf of a testator is also disqualified from accepting the benefit or appointment which he had written in the will, even if he did so at the dictation of the testator or merely recopied it from a draft or notes of the testator. A bequest to, or appointment of, such writer of a will may be valid if the testator expressly confirms the bequest or appointment in writing in, on or outside the will, or possibly even where this is done orally. If, however, the beneficiary dictates or drafts the will and the testator or a third party (including a clerk or employee of the beneficiary) then writes or types out the will, the beneficiary is not disqualified from taking under the will. The disqualification also does not extend to a beneficiary who is the spouse or other relative of the writer of the will.
As there is freedom of testation in South African law, a will may be revoked or altered by the testator at any time before his death. This is a fundamental principle, so much so that a person can as a rule not bind himself by will, agreement, or any other form of transaction, not to revoke or alter his will. Revocation or alterations must, however, be in due form. Alterations or deletions made after execution on the will itself have to be identified with the signature of the testator and two witnesses, and with the same formalities as required for the execution of a will. Revocation of the whole will or any part thereof may be made by a subsequent will, but any other document or statement will not suffice. Usually such revocation is made by an express clause, but a later valid will would also impliedly revoke an earlier will to the extent that the provisions of the two wills are inconsistent. In case of doubt, however, two or more wills are to be read together and their provisions reconciled with one another.
A will is also regarded as revoked if the original will itself is intentionally destroyed by the testator or by someone with his authority. Destruction would include tearing up, burning, defacing, or possibly even writing ‘cancelled’ across the face of the will. Partial destruction would revoke a will to the extent destroyed. In South Africa a will is not automatically revoked by the subsequent marriage of the testator or by the birth of issue to the testator. In Rhodesia it is revoked by subsequent marriage, and so it is in Natal in respect of wills executed before Jan. 1954. A revoked will or any invalid will may be revived by re-execution, that is, by going through the whole process of execution anew on the pages of such will, or by making and executing it as a new separate will, with all the required formalities. It is doubtful, however, whether a revoked or invalid will can be revived by a later separate will simply declaring it to be valid or to be revived.
A testator may during his lifetime keep or lodge his will anywhere he pleases. On the death of any person there is, however, a duty on every person in possession of a will, or of a document purporting to be a will, of such deceased person, to transmit or deliver the will to the Master, who decides whether to accept and register it in a register of estates, which is the South African equivalent of probate. There is an appeal to the Supreme Court against the Master’s decision.
A will may dispose of any sort of interest in the testator’s own property, whether it be ownership or less, and may release a person from a debt or give him a right to receive a debt due to the testator. A will may also under certain circumstances dispose of property not belonging to the testator. In such cases the executor must obtain the property, by purchase if necessary, and hand it over to the beneficiary. The owner of the property cannot, however, be compelled to part with his property; and if he refuses to part, the executor must pay the beneficiary the value of the property. If the person whose property is disposed of by a testator is himself given a bequest under the will, he cannot claim such bequest unless he allows his own property to go in terms of the will. He must elect to take the bequest or to retain his own property – he cannot have both.
A bequest under a will is usually described as a legacy or as an inheritance. A legacy is a bequest of a specified thing, sum of money, right, or collection of things (for example, a library, while an inheritance is a disposition of the residue of the estate after the legacies have been deducted.
It is not essential to have an heir in a will, and though there were basic differences formerly, there are very few differences in law today between the heir and the legatee. The main difference is that the legatees receive preference in payment over the heir, who is thus often referred to as the residuary legatee.
If there is a shortfall in the estate after payment of the legacies, the heirs alone suffer a diminution of their shares. If there are not sufficient funds, after payment of creditors, to satisfy all the legacies in full, the legacies are abated – that is, each legacy is reduced in the proportion that it bears to the total value of the legacies – whatever the nature of the legacy, whether it be of a specific thing, or general (of a sum of money). The testator may, however, direct in the will that one or other legacy be paid before others or receive some other priority, in which case it is called a pre-legacy. Where the assets of the estate are not sufficient to pay the creditors, the estate is administered as an insolvent estate for the benefit of the creditors, and the legatees and heirs receive nothing. If a legacy fails for any reason, it falls into the residue of the estate for the benefit of the heirs, unless the will indicates the contrary. If an heir is for any reason unable to benefit, there is usually intestacy as to his share, unless the will indicates the contrary. A legatee or heir may for various reasons be debarred from taking under a will, either because he signed as a witness or wrote or on the testator’s behalf signed the will (see above) or because he is unworthy in relation to the deceased (for example, he unlawfully caused the deceased’s death) or because he obtained the benefit through fraud, duress or undue influence over the deceased. An incestuous child, it would seem, may take under a will only so much as is necessary for its necessary maintenance; but other illegitimate children, if specifically given a bequest in the will, may inherit without limit under the will. If, however, a testator makes a bequest to children generally, illegitimate children are deemed not to be included unless the will clearly indicates the contrary. Adopted children, being legitimate, are included except where they were adopted after execution of the will.
A testator has a pretty free hand in drafting his will. Any type of condition or direction (modus) may be imposed on a bequest unless the condition is illegal, tends to further immorality, is impossible of achievement, or is uncertain in its nature. For example, a condition which tends to restrain marriage generally is invalid and would be expunged from the will so that the legatees take the bequest free of the condition, but a condition limiting marriage to a particular person or group or prohibiting marriage out of a certain religious faith is not invalid (provided the group is clearly indicated, otherwise the condition will be void for uncertainty. A condition whereby a bequest is to be forfeited on remarriage of the beneficiary is also valid. Directions to devote a bequest to charity receive benevolent treatment from the law. If the object of a charitable bequest cannot be achieved, or is somewhat uncertain, the court will do every thing in its power to convert the bequest to some similar charitable object, the rules applicable being very similar to those of the cy pres doctrine of English law. It is also possible to postpone a bequest until a certain date, or to leave property to unborn persons.
The testator may further appoint joint legatees or joint heirs and may appoint beneficiaries in the alternative; the latter is termed direct or vulgar substitution. He may also bequeath property to a succession of beneficiaries, such successive substitution being called a fideicommissum. There is no limit to the number of generations that may succeed, and accordingly a testator may, if he uses clear enough language, tie up his property in perpetuity. Where, however, the number of successions is not clearly indicated by the testator, the law will limit the succession to the fifth generation, counting from the first person instituted to the property, or to a lesser number, depending on the language of the will. Act 94 of 1965 has, however, introduced a `rule against perpetuities’ in respect of immovable property, effectively limiting successive substitutions to two fideicommissaries, that is to say, the third person succeeding in the chain takes the property in absolute ownership free of the fideicommissum, notwithstanding the terms of the will or any other instrument. The Supreme Court also has power to remove or modify restrictions on property which are burdensome or which materially affect the value of the property, or in cases of necessity.
As a general rule, in most fideicommissa the successor must survive his immediate predecessor in order to become entitled to the property, and if he does not so survive, the bequest becomes the absolute property of the predecessor. A will may also create trusts and appoint trustees or administrators to administer such funds, and may enlarge or reduce the powers which such persons possess in law.
A will speaks from the date of the testator’s death. Consequently, if a beneficiary predeceases the testator the bequest to him falls away. Under recent legislation, however, a bequest in a will to a child of a testator passes to the child’s lawful descendants if such child predeceases the testator, except where the will shows a contrary intention. A will is also said to be ambulatory in nature in that it is presumed to gather everything within its ambit until the date of the testator’s death. A bequest to a testator’s brothers, for instance, would mean to so many brothers as exist at the date of the testator’s death, whatever be the number of brothers at the date of execution of the will or after the testator’s death. Posthumous persons, that is persons conceived before the testator’s death, would usually be deemed to have come into existence at his death, if they are born alive after his death. The will may, however, contain provisions to the contrary.
Any two or more persons, whether married to each other or not, may make a joint or mutual will. Such a will is really two or more separate wills, embodied for convenience in one document. The testators have to execute the will with the same formalities as required in an ordinary will, but one set of witnesses suffices. Although the language in a mutual will speaks in the plural, the will is presumed to operate separately with regard to the property of each testator, and each is at liberty during his own lifetime to revoke the will at any time without reference to the other, and irrespective of whether the other testator has died or not.
Where, however, the mutual will masses the property of both testators, that is, consolidates it for purposes of disposition, giving benefits to the survivor out of the estate of the first-dying, and directing that the whole or part of the massed property (including that of the survivor) must in some events go to other beneficiaries, then, if the survivor accepts (or adiates) any of the benefits given to him in the property of the first-dying, he is bound to let his own property go to the beneficiaries in terms of the will; and this becomes a debt binding on the survivor and his estate which will prevail against any subsequent alteration of the mutual will by the survivor. If the mutual will provides for the massed property to pass to beneficiaries on the death of the survivor or on same other event after the death of the first-dying, then adiation by the survivor of benefits in the estate of the first-dying confers upon the beneficiaries the same rights in the property of the survivor as in that of the first-dying. The survivor is, however, free to refuse the benefits given to him in the property of the first-dying, in which case he retains all his own property intact and is not bound by the terms of the mutual will until his own death. He may then alter the mutual will at any time before his own death without any obligation on his part. The survivor is debarred from accepting any benefits under a mutual will if he had written out such bequest in the will (even though the benefits be reciprocal and it is uncertain that he would be the survivor) unless the benefit has been confirmed by the first-dying.
From the above it will be apparent that the execution and drafting of wills and their revocation and amendment are by no means straightforward matters, and intending testators would be well advised to take legal advice.
Where the residue of an estate is divided between a person’s descendants, whether by will or on intestacy, every descendant who received an advance (for example, to set him up in business or marriage) from the ascendant during the tatter’s lifetime is, if he wishes to share in the estate, obliged by law to collate the advance received, on the theory that the ancestor intended equality of distribution among his descendants. The amount of the advance must be added to the net value of the estate for distribution among the descendants, and the new total is then divided among all the descendants according to the shares in the will or on intestacy. The person collating then receives this enhanced share less the amount he has to collate, and the other descendants receive the enhanced shares in full. A descendant cannot be compelled to collate, but if he refuses to do so he cannot claim any share of his inheritance. Legatees and prelegatees are not obliged to collate, and a testator may in his will exclude or impose an obligation to collate in any case he wishes. The English equivalent of collation has the quaint name of bringing into hotchpot.
The law of intestate succession is based primarily on blood relationship, the law being derived from a fusion of two systems of succession, the Frisian aasdomsrecht, which prevailed in North Holland, and the Frankish schependomsrecht, which prevailed in South Holland, with an admixture of rules from Roman law. This fused system was introduced, with some minor variations, into South Africa by a charter (octrooi) of the States-General of the Netherlands of 1661, and in this charter the schependomsrecht, as set out in a political ordinance of 1580, is the prevalent system. It was generally assumed that under this system a surviving spouse had no rights of succession on intestacy in the deceased spouse’s estate, and accordingly such right was given by legislation first in Natal in 2863 (now repealed) and later for the whole of South Africa by the Succession Act, No. 13 of 1934, amended in 1962. Southern Rhodesia enacted similar legislation in 1954.
Where there is no surviving spouse, the deceased estate goes first to the children with representation per stirpes, that is, if a child has predeceased the testator, his children divide such predeceased child’s share equally, and so on ad infinitum. An adopted child has, as a result of the Children’s Act (1960), the same rights of succession in the estate of his adoptive parent as a natural child has. In addition an adopted child also succeeds on intestacy to his natural parents and their relatives, but not vice versa. An adopted child does not, however, inherit on intestacy from any relative of the adoptive parent whereas such relatives do inherit from the adopted child. An illegitimate child succeeds equally with legitimate children in the intestate estate of his mother or her relatives, and conversely, but not in that of his father or his relatives, or conversely.
If there are no descendants of the deceased, the estate goes to the parents in two equal halves; and in case of their death each half goes to the children of that parent – that is, to brothers and sisters of the deceased, whether of the full or half blood, with representation to the fourth degree of relationship to the deceased. If one parent alone is alive and there are no surviving descendants of the predeceased parent within the fourth degree, the surviving parent takes the whole estate. If both parents are dead and their nearest surviving descendants are beyond the fourth degree of the intestate (i.e. the great-grandchildren of the parents), they share per capita, that is, they take equal shares in their half to the exclusion of more remote descendants. If the deceased leaves no parents or descendants of the parents, the estate goes into four quarters to the grandparents of the deceased. If, of one grandparent couple, one or both grandparents have predeceased the deceased, their two quarters go to their descendants, uncles and aunts of the deceased, with representation to the fourth degree, the sole surviving grandparent of a couple thus getting nothing. Failing all the above relatives, the estate will go on the same principles to the great-grandparents and their descendants, one quarter going to each couple of great-grandparents or their descendants.
The surviving spouse was in 1934 given a right in all cases to a minimum of R1200, which amount was raised to R10 000 in 1962. This minimum amount the surviving spouse may take in the estate of the deceased spouse in preference to children or other relatives of the deceased, except that if the marriage was in community of property, and the deceased leaves descendants, the surviving spouse’s half-share in the joint estate which he takes is deducted from the minimum of R10 000, so that he takes the balance from the separate estate of the deceased spouse. The surviving spouse may, however, in certain cases obtain a larger amount than R10 000 by being entitled to claim the following shares in the separate estate of the deceased spouse, and such share is in addition to any half-share of a community estate to which the surviving spouse may be entitled: (a) if the deceased leaves descendants, the surviving spouse is entitled to the same share as a child in the deceased estate; (b) if the deceased leaves no descendants, but leaves a parent or a brother or sister (whether of the full or the half blood), the surviving spouse is entitled to half the separate estate of the deceased; (c) in all other cases the surviving spouse is entitled to the whole estate. These larger portions are not in addition to the minimum of R10 000. The surviving spouse takes whichever is the greater amount. The balance is divided among the relatives in accordance with the rules as to descendants etc. set out above.
Where there are no relatives at all in a deceased intestate estate and no surviving spouse, the estate goes as bona vacantia (unclaimed property) to the State.