ASSESSMENT FEEDBACK TUTORIAL LETTER

GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Year 2024
Semester First Semester
Module Law of Succession
Module code LOS201/262

1. DETAILS OF LECTURER

Lecturer Mrs R Welthagen

Office 101, The Village Square, c/o Oxford and Queen Streets, Durbanville, Western Cape, 7550

CPD Vorster – Director | S Totaram – Director | D Singh – Director | JJ Human – Director

Company registration number: 2004/031722/07

2. GUIDELINES FOR ANSWERS TO ASSIGNMENT QUESTIONS

Question 1 [15]
Collation is a process by which the inheritances of certain of a deceased’s heirs are adjusted [1] to consider
the fact that they received substantial benefits from the deceased during his or her lifetime [1].

Since collation does not in itself increase the actual value of the deceased’s estate [1], the process of
adjustment means that the inheritances of those heirs involved in collation are increased beyond what the
will or the rules of intestate would otherwise have given them [1], and the inheritances of other heirs are
correspondingly reduced [1].

Collation is also known by the following terms: collatio bonorum in Roman law, inbreng in Roman-Dutch law,
inbring in Afrikaans and hotchpotch in some foreign jurisdictions (2).

The rationale behind collation is chiefly to ensure that the deceased's children are all treated equally [1]. A
secondary purpose, which applies when the testator has chosen not to benefit his or her children equally [1],
is to ensure that the children benefit in the particular proportions chosen by the testator [1] and that those
proportions are not upset by substantial benefits given to any beneficiary during the testator's lifetime [1].
In this way, collation preserves the overall scheme devised by the deceased for the devolution of his or her
estate among his or her descendants [1]. Collation also applies when the heirs are determined by the rules
of intestate succession [1].

Example of the clause

I record that during my lifetime I gifted to my son, X, an amount of R1 000 000 to enable him to purchase a
business and I direct that he collates that sum with my estate before he is paid his inheritance in terms of my
will [2].

Question 2 [30]
2.1
The beneficiary must be competent to inherit [1], the mere fact that somebody has been named as heir or
legatee in a will does not necessarily mean that the person has the right to the relevant benefit [1]. Although
most persons are competent to inherit, some do not have the competence to take up a benefit in terms of a
specific will [1]. Certain persons are not competent to benefit testate from a specific deceased. A person
disqualified from inheriting [1] in terms of common law, is a person who may not benefit from his or her own
wrongdoing [1].

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A beneficiary who caused the death of the deceased or the coniunctissimi of the deceased [1] – a beneficiary
who is responsible for the death of the deceased or the coniunctissimi of the deceased is precluded from
inheriting either testate or intestate from the deceased [1].

According to the common law, even a beneficiary who gives assistance or counsel to a killer is disqualified
from inheriting [1]. The rule precluding a killer from inheriting finds application in the Roman-Dutch law
maxim, de bloedige hand neemt geen erf (bloody hand takes no inheritance) [1]. The operation of the de
bloedige hand maxim is absolute [1]. It does not matter whether the deceased was killed intentionally or
negligently [1].

Thus, a beneficiary who commits culpable homicide (the unlawful and negligent killing of a human being) is
as equally disqualified from inheriting as a person who commits murder (the unlawful and intentional killing
of a human being) [1]. It would seem that the courts are reluctant to relax the operation of the de bloedige
hand maxim without legislative intervention [1].

Someone responsible for the death of the deceased or the coniunctissimi of the deceased will not
automatically be disqualified from inheriting and the Master does not have the authority to disqualify him
or her [1].

In Casey v The Master [1] the husband, as beneficiary, was convicted of culpable homicide as he accidentally
shot and killed his wife while handling his gun [1]. His counsel argued that the death was caused negligently
and that the de bloedige hand maxim is obsolete [1]. However, the court disagreed and the disqualification
remained [1].

Mr X cannot inherit from Mrs Z [1], even if the killing was negligent. However, his half share of the communal
estate will not be affected and he will still receive his half share [1].
Note to marker:
• 3 marks for good academic writing: Format (legal opinion), language, conclusion.
• A maximum of 17 marks is allocated for content.

2.2
Direct Substitution implied by law (ex lege) may be implied by law in certain circumstances [1]. This is
regulated by section 2C of the Wills Act [1]. Section 2C (2) provides that the descendants of a descendant
of the testator who has been appointed as a beneficiary in a will can represent or substitute that
descendant where the descendant predeceased the testator or is disqualified from inheriting [2]. The
three children will be able to inherit in terms of Section 2C (2) as the substitute heir implied by law [1],
because Mr X was disqualified from inheriting, his share will be shared among his three descendants [1].

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2.3
The surviving testator loses the power to alter or revoke the joint (mutual) will [1]. Accepting a benefit under
such a will, the surviving testator renounces the power to dispose of his own estate in a manner different
from that in which the first-dying testator has already disposed of [1]. Section 37 of the Administration of
Estates Act changed the position of beneficiaries, that they have the same rights in respect of the survivor’s
part of the massed property as they do to the property of the first-dying [1].

Question 3 [20]
3.1 Modus [1] solely for the benefit of the beneficiary who has been burdened with it. [1] He has a moral
obligation to comply, [1] but non-compliance will not affect his rights to the bequeathed benefit. [1]
3.2 Collation: [1] a descendant who received certain benefits from a testator during the testator’s lifetime
has to collate such benefit/value. [1] The beneficiary in the clause does not have to bring in any benefit.
[1]
3.3 Usufruct [1] occurs when ownership is bequeathed to one person, but the right to use and enjoy and
the fruits is bequeathed to another. [1] The son will be the owner [1] and the mother have a lifelong
use until her death. [1]
3.4 Attestation [1] appears at the end of the will in which it is declared that all the parties were present
and signed in one another’s presence. [1] Required for evidentiary purposes. [1]
3.5 Exempt of furnishing security: [1] it is important to dispense with security by the executor and trustee,
otherwise a bond of security must be provided. [1]
3.6 Revocation [1] is an act by which a testator cancels a will or part of a will, [1] so that it is no longer
applicable. [1]

Question 4 [10]
Legal issue to be determined
Was the intention of the legislature to mean that the court can declare the will to be valid but subject to the
condition that the spouse is limited to a benefit to the extent that she would have inherited in terms of the
law of intestate succession?
[2 marks for the legal issue]

The Appeal Court ruling

The common law rules that no one who has written out the will of another can derive any benefit for himself
under it. The rule is not extended beyond cases where the reason for the rule did not apply. In the absence
of suspicion of falsity or fraud, such an heir can inherit. Section 4A in terms of the Wills Act, provides that the
court may declare a person or his spouse to be competent to receive a benefit from a will if the court is
satisfied that the person or his spouse did not defraud or unduly influence the testator in the execution of
the will. Section 4A cannot be interpreted to mean that the legislature intended that a spouse in such instance
is limited to the intestate benefit alone.

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The facts of the case showed that the spouse gained no unfair advantage over anybody and there is no room
for fraud or undue influence on the part of the spouse.
[4 Marks for the ruling]

The decision of the Appeal Court

It was held by the Appeal Court that the court may declare the will valid in the absence of fraud or undue
influence, and the spouse is not limited to the intestate share that she would have received. Therefore, the
spouse was entitled to the entire estate.
[2 Marks for the decision]

Conclusion
2 Marks if the student came to his/her own conclusion.

Assignment Total: 75 Marks

3. CONCLUSION

Everything of the best with your studies and the examination. Please ensure that you start studying well in
advance.

Regards,

Mrs R Welthagen