1 INTRODUCTION
This tutorial letter provides the memorandum for Assignments 1 and 2 of Semester 1/2020 as
well as information on the examination and an
... [Show More] old examination paper. More old examination
papers are available on myUnisa.
2 FEEDBACK ON ASSIGNMENTS
2.1 Assignment 1
SEMESTER 01
ASSIGNMENT 01
Please note: Submission of this assignment was compulsory for admission to the examination.
The assignment counts 50% towards your semester mark and 10% towards your final
mark for this module. Please see TL 101/3/2020 for an explanation.
Question 1
Thabo died intestate in 2019 leaving behind the following relatives:
His wives, Anna and Basetsana to whom he was married in terms of customary
law. Thabo had also been married to Dinah in terms of customary law, but she
died before him.
His son, Cyril, born from his marriage with Anna. Cyril has a daughter, Phula.
His grandchildren, Selo and Yvette, the children of a predeceased son, Ernest,
born from the marriage to Anna.
His daughter, Malefu, born from the marriage to Basetsana. He also had a son,
Kabelo, with Basetsana, but Kabelo died as a teenager before the testator.
Kabelo was killed by Cyril who served a jail term for the murder.
His twin daughters, Lerato and Neo, born from his marriage to the predeceased
Dinah.
A grandson, Xilo, the child of Lerato.
His mother, Sarah. His father, Ben, is predeceased.
The value of Thabo’s estate is R2 100 000. Explain how his estate is going to devolve and
calculate how much each person will receive. Give reasons for your calculations. Also,
indicate which relatives will not inherit, giving reasons. (15)
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Answer
(1) Thabo died intestate because he did not leave a will. All intestate estates, including
the intestate estate of a person married according to customary law, are divided in
terms of the Intestate Succession Act – see the Bhe case. [Bhe v Khayelitsha
Magistrate 2005 (1) SA 580 (CC)].
(2) In terms of section 1(1)(c) of the Intestate Succession Act 81 of 1987, if a person
dies intestate and is survived by a spouse and descendants, the spouse will inherit
either a child’s share or the statutory amount of R250 000 of the intestate estate,
whichever is the greater amount, and the descendants will inherit the residue.
(3) To calculate a child’s share/portion, the value of the estate is divided by the number
of children who have either survived the deceased,
(4) or who have predeceased the deceased but are survived by their descendants,
(5) plus the number of spouses left by the deceased (see section 1(4)(f)).
In order to determine the child’s share we must decide which children qualify to be
counted:
(6) Children who have survived Thabo: (1) Cyril, (2) Malefu, (3) Lerato, (4) Neo. He
also has a child who has predeceased him but has left descendants (Selo and
Yvette), namely (5) Ernest.
(7) A child’s share is therefore calculated by dividing the value of the estate by 7 (5
children plus 2 wives). [Dinah is predeceased and cannot inherit.]
(8) R 2 100 000 ÷ 7 = R 300 000. A child’s share is therefore R 300 000.
(9) A child’s share is more than the statutory amount of R250 000 and the wives (Anna
and Basetsana) will therefore each inherit R300 000.
(10) The residue of R 1 500 000 (R 2 100 000 - R 600 000 = R 1 500 000) is divided
between the descendants Cyril, Malefu, Lerato, Neo and Ernest’s descendants who
represent him (Selo and Yvette).
(11) Cyril, Malefu, Lerato, and Neo inherit R 300 000 each
(12) and Ernest’s children represent him and share Ernest’s R 300 000 each inheriting R
150 000.
(13) However, Cyril murdered a coniunctissimus (spouse, parent or child) of the
deceased (Thabo) and is therefore disqualified to inherit from Thabo. [See Ex parte
Steenkamp and Steenkamp 1952 (1) SA 744 (T) or Casey v The Master 1992 (4)
SA 505 (N).]
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(14) Cyril’s child, Phula, will inherit Cyril’s share in terms of section 1(7) of the Intestate
Succession Act.
(15) Xilo, the child of his daughter Lerato, cannot inherit because he cannot represent
his parent who is still alive.
(16) His mother, Sarah does not inherit because she is excluded by the spouses and
children in terms of section 1(1)(c).
[15]
Question 2
Mr Smith, a widower, asks his attorney to draw up a will for him in which he leaves his
whole estate to his girlfriend, Miss Bell, thus disinheriting his two adult children. Being a
very busy businessman, he goes to the attorney’s office after hours to sign the will. Since
there was no one available to sign as witnesses, the attorney offered to have his two
secretaries sign as witnesses the next day. Mr Smith agrees to this. After his death a few
years later, the attorney informed the children about the circumstances surrounding the
signing of the will.
(a) Does this will comply with the prescribed formality requirements found in section
2(1)(a) of the Wills Act 7 of 1953? Discuss by referring to all the formalities required in
this scenario. (4)
(1) The will must be signed at the end thereof by the testator himself.
(2) The signature of the testator must be made (or acknowledged) in the presence of
two or more competent witnesses.
(3) Such witnesses must attest and sign the will in the presence of the testator and
each other.
(4) In this instance, the witnesses were not present when the testator signed and he
was not present when they signed. He also did not acknowledge the signature in
the presence of both witnesses. The will is therefore not valid.
(4)
(b) Assume the Master accepts the will as valid and the children then approach the court
for an order declaring the will invalid because of the non-compliance with formalities.
What can Ms Bell do to ensure that she inherits in terms of the will? Discuss in detail
with reference to relevant case law. (11)
(1) She has to approach the court for an order in terms of section 2(3) of the Wills
Act.
(2) In terms of section 2(3) the court is empowered to order the Master to accept a
document as a valid will although it does not comply with all the formalities for
the execution of wills
(3) if the court is satisfied that the document concerned was drafted or executed by
a person,
(4) who has since died and
(5) who intended that document to be his or her will.
(6) The Court has no discretion but must make an order directing the Master to
accept the document as a valid will if the requirements are met.
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(7) Mr Smith executed the will by signing it, therefore the fact that he did not draft it
personally is not an issue. [Section 2(3) states that will has to be drafted or
executed by the deceased. The testator signing the will is considered to meet
the requirement of “executed” by him.]
(8) The requirement that the testator must personally draft the will was stated in
Bekker v Naude 2003 (5) SA 173 (SCA).
(9) The most important requirement which has to be satisfied before a court will
grant an order in terms of section 2(3) is the requirement that the court has to
be satisfied that the testator intended the document to be his will.
(10) The facts of each case must be considered to ascertain the testator's intention.
(11) See Van Wetten v Bosch 2004 (1) SA 348 (SCA).
(12) In this scenario it is clear that it was his intention that the document should be
his will because he signed it as the testator. Ms Bell will therefore be entitled to
the order declaring the will valid and she will therefore inherit in terms of the
will.
(11)
[15]
Total for assignment 1: [30]
2.2 Assignment 2
SEMESTER 01
ASSIGNMENT 02
The assignment counts 50% towards your year mark and
10% towards your final mark for this module. Please see Tutorial Letter 101/3/2020 for
more information.
This assignment covers the whole textbook and the information in Tutorial Letter 101.
Select only one answer per question. Each answer counts two marks.
The correct answers are indicated in bold.
Question 1
1 Which one of the following persons will not be able to claim maintenance from the
deceased in terms of the Maintenance of Surviving Spouses Act 27 of 1990?
[1] The deceased’s wife in a monogamous Muslim marriage.
[2] The deceased’s wife in a polygamous Muslim marriage.
[3] The deceased’s heterosexual life partner.
[4] The deceased’s homosexual life partner in a civil union. (2)
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2 Mr X dies intestate and is survived by his grandparents, P and Q on his father’s side
and his uncle Z on his mother’s side only. How will his estate devolve?
[1] Z will inherit one half of the estate and P and Q will share the other half of the
estate.
[2] P, Q and Z will each inherit one-third of the estate.
[3] The uncle, Z will inherit the whole estate.
[4] The grandparents, P and Q, will inherit the whole estate. (2)
3 According to Du Plessis v Strauss 1988 (2) SA 105 (A) …
[1] In South African law, no presumptions arise from the coupling of a si sine liberis
decesserit clause to a conditional fideicommissum in a will.
[2] In a will, a si sine liberis decesserit clause coupled with a conditional
fideicommissum always gives rise to a presumption that a tacit fideicommissum
was created in favour of the children mentioned in the clause.
[3] In a will, a si sine liberis decesserit clause coupled with a conditional
fideicommissum gives rise to a presumption that a tacit fideicommissum
was created in favour of the children mentioned in the clause, but only if
they were descendants of the testator.
[4] In a will, a si sine liberis decesserit clause coupled with a conditional
fideicommissum will never create a tacit fideicommissum in favour of the
children mentioned in the clause, if the children were related to the testator
through a sibling. (2)
4 T provides in his will:
“I leave R 20 000 to my daughter, F. She must receive this amount before any
other benefit is paid out.”
The bequest to F is called …
[1] a modus.
[2] a prelegacy.
[3] an inheritance.
[4] a bequest price. (2)
5 When interpreting a will, which of the following sources may not be used?
[1] The will itself.
[2] Armchair evidence.
[3] Extrinsic evidence to identify a beneficiary.
[4] Evidence as to a statement made by the testator himself or herself as to
what he or she intended. (2)
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6 The Master may dispense with the appointment of an executor if ....
[1] the deceased died intestate.
[2] the value of the estate is less than R250 000.
[3] the beneficiaries apply to the Master not to appoint an executor.
[4] the value of the estate is less than R125 000. (2)
7 Which one of the following bequests provides an example of a joinder re et verbis?
[1] “I bequeath my farm to John and Peter. John is to get the portion which lies
north of the river, while Peter is to get the portion which lies south of the river.”
[2] “I bequeath my farm to John and Peter.”
[3] “I bequeath my farm to John and Peter in equal shares.”
[4] “I bequeath my farm to John and my car to Peter.” (2)
8 Which one of the following provisions in a will creates a fideicommissary
substitution?
[1] “I bequeath my farm to my son, John. If John predeceases me, my son Peter
should inherit the farm.”
[2] “I bequeath my farm to my sons, John and Peter, in equal shares.”
[3] “I bequeath my farm to my son, John. If John dies without children, the
farm must go to my son Peter.”
[4] “I bequeath the residue of my estate in trust to my sons, John and Peter.” (2)
9 Testator T provides as follows in his will:
“I leave my estate in trust to my trustee, Mr X. My wife, W, must receive the
income from the trust during her lifetime. At her death, my children P and J must
receive the capital of the trust.”
Who is the owner of the trust property after T’s death?
[1] W
[2] X
[3] P and J
[4] W, P and J [Show Less]