Law of Succession (Pvl2602): Exam 2019: Questions and Answers Law of Succession (University of South Africa).

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Tutorial Letter 201/1/2019 Law of Succession PVL2602 Semester 1 Department of Private Law This tutorial letter contains feedback on the assignments and important information about the examinati... on CONTENTS 1 COMMMENTARY ON ASSIGNMENT 01: SEMESTER 01 3 2 COMMMENTARY ON ASSIGNMENT 02: SEMESTER 01 6 3 INFORMATION ABOUT THE EXAMINATION 10 3.1 Study material 10 3.2 Format of examination 10 4 OLD EXAMINATION PAPER AND MEMORANDUM 13 5 CONCLUSION 28 Dear Student 1 COMMMENTARY ON ASSIGNMENT 01: SEMESTER 01 This assignment covers chapters 1 to 6 of the textbook, the information in Tutorial Letters 101 and 501 as well as the prescribed cases. QUESTION 1 In May 2014, John and William entered into a civil union (in terms of the Civil Union Act 17 of 2006) that was out of community of property, but subject to the accrual system. In January 2016, John died intestate and left the following relatives: • William, who is entitled to R200 000 as accrual; • Samuel and Dina, the adopted children of John and William (Dina refuses to inherit any part of John’s estate); • Frans, the grandson of John (Frans is the son of John’s predeceased son, Gerald who was born from John’s first marriage to Kathy); • Mary, John’s mother; • Ben, John’s brother. The total value of John’s estate is R1 000 000. Calculate how his estate is going to devolve and indicate how much each person will receive. Give reasons for your calculations. Also indicate which relatives will not inherit, giving reasons. QUESTION 2 Forty year old Xavier died in August 2015 after suffering from lung cancer. While in hospital, he made a will in which he bequeathed his entire estate to his secretary who spent every day next to his bed during his last two weeks. He is survived by his wife, Wendy, two sons, Greg and Hans, and his daughter, Julia. Wendy approaches you for advice. She alleges that Xavier lacked the necessary testamentary capacity to execute a valid will. With reference to authority, advise Wendy. (20) Answer 2 COMMMENTARY ON ASSIGNMENT 02: SEMESTER 01 • This assignment covers the whole textbook, the prescribed cases and the information in Tutorial Letter 101. • Select only one answer per question. Each answer counts two marks. QUESTIONS AND ANSWERS FOR ASSIGNMENT 02 (SEMESTER 01) 1. 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] His uncle, Z will inherit the whole estate. [4] The grandparents, P and Q, will inherit the whole estate 2. In terms of section 2(1)(a)(v) of the Wills Act 7 of 1953, a certifying officer must attach a certificate to a will … [1] where the identity of the testator is uncertain. [2] where the testator and the witnesses signed the will with their signatures. [3] where the testator signs the will but dies before the witnesses can sign the will. [4] where another person signs the will on behalf of the testator and where the testator signs the will by making a mark. 3. Testator T provides as follows in his will: “I bequeath my farm to my son, X, provided that he obtains an LLB degree within 6 years after my death. If he does not obtain the degree, my brother Z will inherit the farm.” When will dies cedit take place for X? [1] At the testator’s death. [2] After six years. [3] When he obtains an LLB degree. [4] When Z inherits the farm. 4. Testator T provides as follows in his will: “I bequeath my farm to my son, X, provided that he obtains an LLB degree within 6 years after my death. If he does not obtain the degree, my brother Z will inherit the farm.” This provision is an example of a ... [1] suspensive time clause for X. [2] suspensive condition for X. [3] suspensive condition for Z. [4] terminative time clause for X. 5. A person who has murdered the deceased, or who has murdered certain relatives of the deceased, may not inherit from the deceased. Which relatives are referred to? [1] Parent, child, or spouse [2] Parent, child, brother or sister [3] Parent, child, spouse, brother or sister [4] Parent, child, spouse, brother, sister or grandparent 6. The duty to report the death of a deceased who leaves any assets or any document purporting to be a will to the Master, rests on ... [1] the person in control of the place where the death of the deceased occurred. [2] the nearest relative of the deceased. [3] the surviving spouse of the deceased. [4] all of the above persons. 7. Testator T’s will contains the following provision: “I bequeath my estate to my daughter, E. My wife D may live in my house until her death.” This provision is an example of … [1] a direct substitution. [2] a fideicommissary substitution. [3] a si sine liberis decesserit provision. [4] a usufruct. 8. A pactum successorium in an antenuptial contract ... [1] is valid in our law. [2] is invalid in our law. [3] contains a promise not to leave benefits to the other party. [4] may be revoked in a later will by one of the parties to the contract. 9. What is a bewind trust? [1] A trust created for an impersonal object. [2] A trust where no trustee is appointed. [3] A trust where the beneficiary is the owner of the trust property. [4] A trust that is not created in a will, but it is created in terms of a contract during the life of the trust founder. 10. The doctrine of election ... [1] is only relevant in connection with estate massing. [2] entails that a person cannot accept a benefit under a will if he or she rejects a burden imposed in the same will. [3] states that a beneficiary must adiate a benefit in writing. [4] is not applicable in the law of succession. 11. For what period of time must the trustee keep records relating to the administration of the trust? [1] 5 years [2] 10 years. [3] 6 months [4] 1 year 12. Testator T provides as follows in his will: “I leave R 100 000 in trust to be used to benefit homeless children.” Does this provision create a valid trust? [1] No because the beneficiaries of the trust are not clearly identified. [2] No because a trustee is not appointed. [3] Yes a charitable trust is created. [4] Yes because a modus is created. 13. Testator F provides as follows in his will: “I leave my farm to my two sons, S and T in equal shares.” This is an example of a joinder … [1] re. [2] re tantum. [3] re et verbis. [4] verbis tantum. 14. Which of the following provisions does not create a valid delegation of the testator’s power of appointment? [1] Testator T leaves his whole estate to a trustee and provides that the trustee may appoint any of the deceased’s children as the beneficiaries of the trust. [2] Testator T leaves his whole estate to his son and provides that the son may decide how to divide the estate. [3] Testator T leaves his farm to his son, S, and provides that on S’s death the farm must go to the person that S has indicated in his will. [4] Testator T leaves his estate to a trustee and provides that the trustee must use the estate for the benefit of homeless children. 15. 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. 3 OLD EXAMINATION PAPER AND MEMORANDUM SECTION A 1 Mr X made a will in which he appointed his wife, Mrs X, as his sole heir. He also appointed her as the executor of the estate. Which one of the following statements regarding Mrs X’s position is correct? [1] Mrs X may only inherit in terms of the will if she rejects her appointment as executor. [2] Mrs X may only inherit in terms of the will if she would have been an intestate heir had Mr X died without a will. [3] Mrs X may inherit in terms of the will because her appointment as executor has no influence on her capacity to benefit under the will. [4] Mrs X may only inherit in terms of the will if she brings an application to this effect before the High Court and the Court finds in her favour. (2) 2 Animus testandi refers to ... [1] the testator’s intention to make a will. [2] the testator’s capacity to make a will. [3] the testator’s freedom to make any provision, whatever he or she pleases, in a will. [4] the testator’s right to exercise his or her testamentary capacity freely in a will. 3 Which of the following statements regarding estate massing are correct? (a) In order for estate massing to take place, the testators must intend to consolidate their estates, or part thereof. (b) The testators involved in the estate massing must be married in community of property. (c) The first-dying testator must have disposed of the survivor’s share of the massed estate as well as of his or her own share. (d) The survivor must adiate the massing. (e) If the survivor adiates, he or she loses his or her freedom of testation regarding his or her share of the massed estate. [1] All of the statements. [2] Only (a), (c), (d), and (e). [3] Only (a), (b), (c) and (d). [4] Only (a), (c) and (d). (2) 4 Which of the following statements regarding the legal position of the fiduciary are correct? (a) The fiduciary is the owner of the fideicommisssary property. (b) The ownership of the fiduciary is subject to a suspensive condition. (c) The fiduciary’s ownership is limited in duration. (d) The fiduciary may only alienate or mortgage the fideicommissary property with the cooperation of the fideicommissary. (e) The fiduciary is not liable to the fideicommissary for damage caused by him or her to the fiduciary property. [1] Only (b) and (e). [2] Only (a), (c) and (d). [3] Only (a), (b) and (c). [4] All the statements. 5 In his will testator T provided: “I leave my estate to the children of my daughter, Emma.” At the testator’s death, Emma was married to Sam. She was pregnant with a child of which she was a surrogate mother in terms of a valid surrogacy agreement with Mr and Mrs Smith. Emma and Sam had an adopted son Carel and a daughter, Brenda. Emma also had an adult daughter, Anna, who was born out of wedlock from a relationship she had before she married her husband Sam. Who will inherit T’s estate? [1] Brenda, Carel, Anna and the unborn child, provided he/she is born alive. [2] Brenda and Carel. [3] Brenda. [4] Brenda, Carel and Anna. (2) 6 The capacity given to an existing trustee to appoint an additional trustee is called: [1] Power of appointment [2] Substitution [3] Power of assumption [4] Treuhand (2) 7 Which of the following statements are recognised principles in our law that can be used when interpreting a will? (a) Words should be given their usual grammatical meaning. (b) Technical terms should be given their legal-technical meaning. (c) If a person has drafted a will, there is a presumption that he or she intended to deal with his or her entire estate. (d) There is a presumption that the testator wanted to treat his or her children equally. (e) When interpreting a will, no evidence of any nature should be taken into consideration – only the wording of the will should be looked at. [1] All the statements. [2] Only (a), (b) and (c). [3] Only (a), (b), (d) and (e). [4] Only (a), (b), (c), and (d). 8 Which one of the following statements reflects the decision of the court in Lello v Dales 1971 (2) SA 330 (A) the most accurately? [1] Depending on the intention of the testator, accrual could take place between beneficiaries, despite the fact that the beneficiaries were joined verbis tantum. [2] Where beneficiaries are to inherit the estate of a testator “in equal shares”, such beneficiaries are not joined verbis tantum and consequently accrual may take place between them. [3] When co-heirs are joined verbis tantum, accrual can never take place between them. [4] In the case of joinder re, re et verbis or verbis tantum there are always a presumption in favour of accrual. (2) 9 In which of the following situations, taking into account the common law and section 2A of the Wills Act 7 of 1953, had T’s will validly been revoked? (a) T told his attorney (X) that he wanted her (the attorney) to destroy the original copy of the will in her (X’s) possession, because he wanted to revoke the will. X thereupon destroyed the will. (b) T told his family that he wanted to revoke his will which was in his attorney’s possession. T did not give any instruction to his attorney in this regard. (c) T wrote “cancelled” on all the pages of his will. (d) T had intentionally torn up the only copy of his will. (e) T had the original copy of his will in his possession, as well as a photocopy of the will. After his death, only the original will was found amongst his papers. [1] In all the situations. [2] Only in (a), (b), (c) and (d). [3] Only in (a), (c), and (d). [4] Only in (c) and (d). (2) 10 In terms of section 18(3) of the Administration of Estates Act 66 of 1965, the Master may dispense with the appointment of an executor if .... [1] the surviving spouse has taken over the estate. [2] the value of the estate does not exceed R250 000. [3] the beneficiaries concluded a redistribution agreement. [4] all the beneficiaries and creditors have agreed thereto. 11 An agreement between two parties purporting to regulate the devolution of the estate of one or both of them after the death of such a party, is called a .... [1] pactum sucessorium [2] donatio mortis causa [3] fideicommissum residui [4] si sine liberis decesserit clause (2) 12 Which of the following statements regarding a trust are correct? (a) A trust is a special form of fideicommissum. (b) A trust is a juristic person. (c) A trust will come to an end when the only trustee resigns. (d) A trust must have a lawful purpose. (e) A trust may be created for an impersonal purpose. [1] Only (d) and (e). [2] Only (b) and (d). [3] Only (b), (c) and (d). [4] All the statements. (2) 13 Testator T provided as follows in his will: “I leave my farm to my son, James. If James does not want to inherit the farm, my son Peter must inherit the farm.” This provision provides an example of a ... [1] tacit fideicommissum. [2] si sine liberis decesserit clause. [3] fideicommissary substitution. [4] direct subsititution. 14 Which of the following persons will be able to claim maintenance from the deceased in terms of the Maintenance of Surviving Spouses Act 27 of 1990? (a) The deceased’s wife in a monogamous Muslim marriage. (b) The deceased’s wife in a polygamous Muslim marriage. (c) The deceased’s heterosexual life partner. (d) The deceased’s homosexual life partner in a civil union. (e) The deceased heterosexual life partner in a civil union. (2) “I leave my farm to my brother, B and I bequeath the residue of my estate to my two sisters, M and N.” T leaves behind his mother, his brother B and his sisters M and N. B refuses to inherit. Who will inherit the farm and why? [1] The mother, because of section 2C(1) of the Wills Act 7 of 1953. [2] The sisters because they are the heirs of the residue. [3] The sisters because accrual takes place. [4] The mother and the sisters in terms of intestate succession. (2) TOTAL SECTION A: [30] SECTION B: 1 X dies intestate in February 2016 and is survived by the following relatives: • B, C and D, his wives to whom he was married according to Muslim rites. He had also been married to J according to Muslim rites but she died in 2010. • X and B had two children, E and F. F is still alive but E died in a car accident in 2007 and is survived by a daughter, Y. • X and C had two children, G and H. H is still alive but G also died in the accident in 2007 and is survived by her adopted son, Z. • X and J had one child – a daughter, K. • X’s parents, M and P, are still alive as is his brother, S. X’s estate amounts to R800 000. Calculate how X’s estate will devolve and give reasons for your calculations. Remember that your reasons are as important as your calculations. (10) 2 Discuss the meaning of the terms “spouse” and “survivor” in terms of the Intestate Succession Act 81 of 1987 and the Maintenance of Surviving Spouses Act 27 of 1990 as decided by the court in Hassam v Jacobs NO 2009 (5) SA 572 (CC). You need not include a summary of the facts of the case. (10) 3 THIS QUESTION CONTAINS A WILL WHICH STARTS ON THE NEXT PAGE. THE QUESTIONS ON THE WILL APPEAR AFTER THIS DOCUMENT. LAST WILL AND TESTAMENT This is the last will and testament of JUDY SIMEON (ID NR 640806 0067 083) Currently residing at: 333 Jeremy Street, Randjiesfontein 1. REVOCATION I revoke all wills and codicils previously made by me. 2. EXECUTORS AND ADMINISTRATORS 2.1 I nominate as executor of my estate Daniel Poggenpoel of the firm Combrink & Poggenpoel Attorneys of Pretoria with the power of assumption. 2.2 I exempt every executor and trustee, whether appointed under this will or assumed or substituted, from the furnishing of security to the satisfaction of the Master for the due and faithful performance of his/her duties as such. 3. BEQUESTS 3.1 To my daughter, Samantha, my jewellery as indicated in the photographs attached hereto. The rest of the jewellery is to go to my granddaughter, Gesina. AS WITNESSES: 1. SamanthaSimeon JSimeon 2. B Muhle JUDY SIMEON : TESTATRIX 2 3.2 The antique grandfather clock that belonged to my grandfather, to my son, Bertus, on condition that it must always go to the eldest son for 99 generations. 3.3 To my son, Kobus, my farm Sandfontein. At his death the farm must go to my grandson, Koos, and so to the eldest son for 99 generations. 3.4 To my daughter Kathryn, my beach house in Ballito. 3.5 The residue of my estate to my husband, Emil SIMEON. 3.6 If my husband and I should die simultaneously or within 30 (Thirty) days of each other, I bequeath my estate to my 4 children in equal shares. 3.7 Should my mentioned husband be predeceased at my death, I leave the residue of my estate to my children Samantha and Bertus in equal shares. SIGNED by me at PRETORIA on this 2nd day of February 2014 in the presence of the undersigned witnesses who signed in my presence and in the presence of each other, all being present at the same time. AS WITNESSES: 1. Samantha Simeon JSimeon 2. B Muhle JUDY SIMEON : TESTATRIX 23 3.1 Assume that all signatures on this will were made by hand and in pen ink. Write a note on the validity of this will. (5) 3.2 Why should the testatrix and witnesses sign the photographs of the jewellery? (5) 3.3 Assume the Master accepts the will. Write a note on Samantha’s capacity to inherit in terms of the will. (3) 3.4 To what executor’s fee will Mr Poggenpoel be entitled as executor in terms of Clause 2 of the will? (1) 3.5 Write a note on the provisions under Clause 3.2 of the will which provides: “The antique grandfather clock that belonged to my grandfather, to my son, Bertus, on condition that it must always go to the eldest son for 99 generations.” In this note, (i) explain which legal concepts appear in the clause, (ii) indicate when dies cedit and dies venit take place for the parties and (iii) discuss any problems that you foresee. (4) 3.6 Write a note on the provisions under Clause 3.3 of the will which provides: In your note, (i) explain which legal concepts appear in the clause, (ii) indicate when dies cedit and dies venit take place for the parties, (iii) discuss any problems that you foresee and (iv) indicate which remedies are available to the beneficiaries. 3.7 Write a note on the provisions under Clause 3.4 of the will which provides: “To my daughter Kathryn, my beach house in Ballito.” After the testatrix’ death, it became apparent that the beach house in Ballito was sold at an sequestration auction 6 years prior to her death, two years after she had made the will. In your note, (i) explain which legal concepts appear in the clause, (ii) indicate when dies cedit and dies venit take place for the parties, (iii) discuss any problems that you foresee and (iv) indicate which remedies are available to the beneficiaries. (5) 3.8 After the testatrix’ death, Samantha refused to inherit the jewellery in the photos. Who will inherit the jewellery now? (2) 4 Contrast the differences between a trust and a fideicommissum in table form. (10) 1 mark each (Max 10) 5 CONCLUSION We wish you success in your studies this semester. Remember that all the tutorial letters are available in electronic format on myUnisa. [Show More]

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