The survivor acquires a beneficial interest in the property of the first-dying which otherwise (in the absence of any will) the survivor would not have obtained, but the survivor no longer has the full ownership of his or her own share of the property which otherwise he or she would have retained. The institution of an heir or heirs is not today essential for the validity of a will. will, if there is one. 2. Furthermore, intestacy can occur if certain conditions in an otherwise valid will are not fulfilled, or if benefits have been repudiated and no provision has been made for substitution, and accrual cannot take place. A beneficiary will not be disqualified, however, in the following circumstances: Section 4A does not apply where a beneficiary under a will witnesses a subsequent codicil made by the testator; similarly, a witness to a will may take a benefit under a subsequent codicil made by the testator. The deceased may not bequeath these benefits to an heir or legatee. Although, therefore, an electronic will, stored on a computer hard drive, for example, which has not been printed or executed, is invalid due to the fact that as it is not in writing nor validly executed, it can be saved by section 2(3). The decision in Gory v Kolver case was predicated on the fact that the parties were not able to formalise their relationship in any way. Instead of being named, beneficiaries may be identified by some description, such as “my children” or “my surviving children.” Instead being described as an aggregate (“my estate”), particular items of property may be specified, such as a farm or a motor car. There are, however, some jurisdictions abroad which require a percentage of the deceased estate to go to the spouse of the deceased. To get around this legislation, a testator may leave the land to a trust or close corporation, and appoint the beneficiaries as beneficiaries of the trust or close corporation in equal shares. a specified collection of things, such as a library or a flock of sheep. All Rights Reserved. In such a case, it is necessary for the court to interpret the will. Since an unborn child is incapable of bearing rights and cannot inherit, the vesting of the bequest is held over until the child is born alive. A prohibition is personal when it is imposed upon a certain person or persons by name or as a class, such as “children” (but not “descendants”), as, for example, where the testator leaves his farm to “my sons A and B,” or “to my sons,” or “to my children,” and prohibits them from alienating it out of the family. The degree of relationship between the parties is. Rectification occurs in circumstances where the court corrects any error in the will. The question of whether, on the death of the testator, an interest under a will is conditional or vested, or vested but not immediately enjoyable, depends entirely on the intention of the testator. The legal effect of this disposition is that, on the testator's death, if Stuart is then alive, the ownership of the farm vests in Stuart, subject to Luke's interest, which is as follows: Luke acquires no vested interest in the farm, only a contingent right, for Luke's interest vests only if and when the condition is fulfilled—in this case, if Luke is alive when Stuart dies, in which event the fideicommissum terminates and the absolute ownership vests in Luke. For example, the testator leaves “my property to A, and if A dies without children, to B.” If A succeeds to the property and dies without leaving children, the condition is fulfilled and the property vests in B; but, if A dies, leaving children, the condition is not fulfilled. Before 1954, when the Wills Act came into force, all provinces had their own legislation regulating the law of testate succession; now the Wills Act has uniformed the law in this regard. Where the deceased is survived by a descendant, but not by a spouse, the descendant inherits the intestate estate. the fideicommissary is the child, brother, or sister of the fiduciary. The effect of estate massing is that the surviving testator's estate dissolves according to the will of the first-dying whilst he or she is still alive. In light of the condonation provisions contained in section 2(3) of the Wills Act, it seems that it is no longer necessary for the will or the reviving document to be properly executed; a court may condone these documents if the requirements of the section are met. This Act thus modifies the customary-law position. AFFIDAVIT OF WAIVER OF RIGHTS OF INHERITANCE STATE OF _____ ) ) ss. The effect of an interest being left conditionally is that it vests, dies cedit, only when the condition has been fulfilled. If, after the debts of the testator have been paid, the estate is insufficient to satisfy all the legacies in full, they are reduced proportionately or “abated.” There is a presumption that abatement applies to all the legacies unless the will shows a clear intention to the contrary. The executor's first duty is to gather in all the estate's assets in the possession of other persons, unless the Master of the High Court authorises such other persons to retain the property. All references, therefore, to “spouses” in the Intestate Succession Act do not apply. If, at the date of commencement, two or more fideicommissary substitutions have already taken place, the fideicommissum shall be terminated at the date of commencement. Are very important when dealing with vesting of rights ( and occasionally also responsibilities ) can devolve 56 ] 59! 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