Notes
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In Garfinkle v Estate Garfinkle 1936 1 PH G5 (C), an important case in the South African law of succession, the testator had a shop attached to his house and a large sum of money. The will stated that the shop was to be advertised for hire by tender and the minimum price acceptable was 30 shilling per month, plus a 500-pound security deposit. Furthermore, the will stated that the prospective lease was to provide three certificates, stating that he was of good character, from a teacher, magistrate and a priest.
The prospective lessee was also required to continue making "Garfinkle's Improved Aerated Drink," and to be the librarian of the library on the property. In this regard, the prospective lessee ought to keep the books under lock and key and only allow persons to peruse them if under constant supervision. Furthermore, the money was to be kept in the post office forever.
As a result of the conditions attached to the shop, no tenders were received, so the executors of the estate sought to declare the conditions invalid. The court held that the conditions were impossible to fulfill due to the complex and onerous burden imposed on any prospective lessee. Thus the testator was held to have died intestate.
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A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
Wills have a lengthy history.
Estate planning is the process of anticipating and arranging for the management and disposal of a person's estate during the person's life in preparation for future incapacity or death. The planning includes the bequest of assets to heirs, loved ones, and/or charity, and may include minimizing gift, estate, and generation-skipping transfer taxes. Estate planning includes planning for incapacity, reducing or eliminating uncertainties over the administration of a probate, and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner, and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries with incapacity.
A holographic will, or olographic testament, is a will and testament which is a holographic document, meaning that it has been entirely handwritten and signed by the testator. Holographic wills have been treated differently by different jurisdictions throughout history. For example, some jurisdictions historically required that a holographic will had to be signed by witnesses attesting to the validity of the testator's signature and intent.
Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator.
Ademption by satisfaction, also known as satisfaction of legacies, is a common law doctrine that determines the disposition of property under a will when the testator has made lifetime gifts to beneficiaries named in the will. Under the doctrine, a gift that the maker of the will gives during his lifetime to a named beneficiary of the will is treated as an advance payment of that beneficiary's inheritance. If the probate court determines that the testator intended the lifetime gift to satisfy a bequest under the will, the amount of the lifetime gift is deducted from the amount that the beneficiary would have received under the will.
The Settled Land Acts were a series of English land law enactments concerning the limits of creating a settlement, a conveyancing device used by a property owner who wants to ensure that provision of future generations of his family.
Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.
English property law is the law of acquisition, sharing and protection of valuable assets in England and Wales. While part of the United Kingdom, many elements of Scots property law are different. In England, property law encompasses four main topics:
The law of persons in South Africa regulates the birth, private-law status and the death of a natural person. It determines the requirements and qualifications for legal subjectivity in South Africa, and the rights and responsibilities that attach to it.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
The South African law of lease is an area of the legal system in South Africa which describes the rules applicable to a contract of lease. This is broadly defined as a synallagmatic contract between two parties, the lessor and the lessee, in terms of which one, the lessor, binds himself to give the other, the lessee, the temporary use and enjoyment of a thing, in whole or in part, or of his services or those of another person; the lessee, meanwhile, binds himself to pay a sum of money as compensation, or rent, for that use and enjoyment. The law of lease is often discussed as a counterpart to the law of sale.
In Ex Parte Estate Davies, an important case in South African succession law, the testator bequeathed £2000 in his will to a person who was not named in the will itself, but on a document which was in a sealed envelope given to his attorney. This document was not signed by witnesses.
In Barrow v The Master, an important case in South African succession law, the testator had convinced his son to leave his job and take over the management and farming operations on the farm “Longridge” from him. To assist him, the testator bought another farm “Meldene” for his son to live on while managing Longridge. Because the son was finding it inconvenient and difficult to manage the farming operations on Longridge while living at Meldene the testator decided to sell 'Longridge' for a net price of £10,000 and undertook to give his son the sum of £262 which he calculated would be the amount of the selling agent's commission. The farm was sold and another smaller farm called “Patchwood” was purchased. In his will the testator had bequeathed Longridge to his two sons in equal shares. Thus when the testator died, his son claimed for his half share in the farm Patchwood. The claim to Patchwood is founded on a promise by the testator during his lifetime to donate to his son a farm to the value of at least £5,000. Alternatively, the son claimed that the bequest of a half-share of Longridge had not been adeemed. On the first argument, the court held that the testator had settled his promise by purchasing the farm Meldene for his son. Furthermore, the court held that the purchase of Patchwood was effected to replace the facilities for farming that his son would lose by the sale of Longridge, not that the farm was actually for him. On the second argument, the court rejected the contention that the testator felt obliged to sell the farm because his son was finding it difficult to manage it and it was thus not voluntary. The court held that involuntary alienations only arise out of necessity such as pressing debts. Thus the alienation was voluntary and the bequest had adeemed.
In Botha v The Master, an important case in the South African law of succession, the testator created a trust in his will for the maintenance of his wife and the education of his nephews. The testator was aware of the fact that all the named nephews already had tertiary degrees and were older than thirty-six. The court accepted certain evidence of a letter written by the testator in which he stated that his intention was to benefit the children of his named nephews. The nephews asked the court to rectify the will by adding the words “the sons of” into the bequest. The court held that the will as it stood did not reflect the intention of the testator, so the words were inserted.
In Van Zyl v Esterhuyse, an important case in the law of succession in South Africa, the applicant applied for the rectification of a joint will executed by herself and her deceased husband. The will appointed her as the sole heir subject to the conditions
Ex parte Estate late McDonald 1945 NPD 348, sometimes called Ex Parte McDonald was an important case in the South African law of succession, in which the testator bequeathed his entire estate to a trust subject to the granting of a usufruct in favour of his wife, so long as she remained unmarried, in which she received the full use and enjoyment of the income of his estate. Her life interest was subject to the condition that she should provide for, maintain and educate the children during their respective minorities.
Testate succession exists under the law of succession in South Africa.
In Anderson v Estate Anderson, an important case in the South African law of succession, the testator had bequeathed a farm to his four sons, subject to a fideicommissum in favour of their eldest sons to the fourth generation, and subject to the limitation that any son selling his share was bound to sell to the remaining sons or son.
Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only: