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ADMINISTRATION OF

ESTATESCOURSE MATERIAL

The purpose of the course is to supply a broad overview of the subject from a practical pointof view.

During training, instructors will only cover those aspects which candidate attorneys willencounter most often in practice.

The remainder of the course is self study.

The purpose of the notes is to supplement the presentation of the instructors and, hopefully,be of use in practice.

Notes do not form a complete manual on the subject - the use of relevant sources is stillnecessary.

It must be borne in mind that the administration of estates is a specialist subject and that thefew hours spent during training sessions will not be sufficient to ensure a pass in theexaminations. As with the other subjects needed, intensive study of the various statutes andother authorities, both before and after the training sessions is essential.

These notes are based on the notes of the Association of Law Societies of the Republic ofSouth Africa and I am indebted to this Association who has given permission to make use ofthese notes.

The section on wills is based on notes compiled by Arnold Shapiri, practising attorney,Johannesburg. The section on the administration of estates is based on notes compiled byDavid Burdette, lecturer at Justice College Pretoria.

These notes have been edited and amplified to comply with Namibian law, for use by theUniversity of Namibia, Justice Training Centre, by T.Taylor, ex Master of the High Court.

A INDEX [Page 2]B SYLLABUS AND AIM OF COURSE [Page 4]C PRACTICE NOTES [Page 6]D PRECEDENTS [Page 105]E SOURCE REFERENCES [Page 126]F DEFINITIONS [Page 127]G FORMS [Page 129]

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A. INDEX

ADMINISTRATION OF ESTATESSECTION B SYLLABUS AND AIMS - ADMINISTRATION OF ESTATES.

SECTION C PRACTICE NOTES.

1 INTRODUCTION.

1.1 Statutes.

2 WILLS.

2.1 AIMS

2.2 INTRODUCTION

2.3 Place of the will in estate planning.

2.4 Requirements for a valid will.

2.5 Consultation with client.

2.5 Drafting of wills.

2.6 General comments.

2.7 Concise notes as to the interpretation of wills.

2.8 Use of word processors.

3. INTESTATE SUCCESSION

3.1 Aims

3.2 Terminology

3.3 History and common law

3.4 STATUTORY LAW

3.5 Practical examples.

3.6 Estates of Rehoboth Basters.

3.7 Estates of Black Namibians

4. ADMINISTRATION OF ESTATES.

4.1 Aims.

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4.2 Introduction

4.3 A brief overview of the administration process.

4.4 The most important parties involved in the administration of a deceased estate

4.5 Various categories of deceased estates.

4.6 Taking of the instruction to administer the estate.

4.7 First consultation

4.8 Reporting the estate.

4.9 Steps to be taken while waiting for letters of executorship to be issued.

4.10 Steps to be taken after receiving letters of executorship but before lodging the liquidation anddistribution account.

4.11 Estate massing.

4.12 Extension.

4.13 Drafting the liquidation and distribution account

4.14 Query sheet issued by the Master.

4.15 The inspection period.

4.16 Finalisation after the inspection period.

4.17 Other types of estates.

SECTION D PRECEDENTS.

5.1 Specimen Wills.

5.2 Certificate by the certifying officer.

5.3 Adiation and Repudiation.

5.4 Practical example of the administration of an estate.

SECTION E SOURCE REFERENCES.

SECTION F DEFINITIONS.

SECTION G FORMS.

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B. SYLLABUS

AND AIMSADMINISTRATION OF ESTATES1.WILLS.

1.1 After having dealt with this section of the work, candidates should have a sound understanding andknowledge of the following:

1.1.1 The subject terminology which applies to wills.

1.1.2 The provisions of the Wills Act no 7 of 1953, as amended.

1.1.3 The definition (in section 1 of the Wills Act 7 of 1953) of who is competent to sign a will asa witness, what the concept "sign" entails, the meaning of "amendment", and the meaning ofthe term "will".

1.1.4 The formal requirements for a valid will and amendments to a will as stipulated in section

2(1) and 2(2) of the Wills Act No 7 of 1953 (as amended).

1.1.5 The rebutable presumption in section 2(2).

1.1.6 The more important stipulations in other statutes applicable to wills.

1.1.7 Cognisance of the decided cases applicable to wills.

1.1.8 Who is competent to make a will.

1.1.9 The effect of repudiation, incapacity to inherit or disqualification to inherit on the object of thetestamentary bequest. The practical implications must be seen in the context of the distinction

between an heir and a legatee as far as substitution and accrual is concerned.

1.1.10 Disqualifications in respect of benefiting under the will where the heir or legatee has signed as awitness (section 4) or wrote or typed the will.

1.2 Students should be able to draw the various sections of a simple will. A sound notion of what atestamentary trust is, who the parties to a trust are, when a testamentary trust should berecommended to a client and what stipulations a testamentary trust deed should contain, is alsoimportant in this regard. A sound knowledge of the provisions of the Trust Monies Protection Act No

34 of 1934.

2.INTESTATE SUCCESSION

2.1 This section deals with the laws applicable to the estates of persons who die without leaving a validwill. After completion of this section the candidate must:

2.1.1 Know and understand the problems that will arise in case of intestate succession.

2.1.2 Know and understand the common law rules of intestate succession as applicable in Namibia.

2.1.3 Know the provisions of the Intestate Succession Ordinance No 12 of 1941 (as amended)

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2.1.4 Know the provisions of the Children's Act No 33 of 1960 in so far as it relates to inheritance ofan adopted child

2.1.5 Know the provisions of the Estates and Succession Amendment Act No15 of 2005

2.1.6 Know the provisions of the Childrens Status Act no ... of 2005 that affect the intestate successionof children born out of wedlock.

2.1.7 Know the provisions of Schedule 2 of the Administration of Estates (Rehoboth Gebied) Proclamationno 36 of 1941 in respect of intestate succession of Rehoboth Basters.

3 THE ADMINISTRATION OF DECEASED ESTATES.

3.1 This section deals with the administration process of deceased estates according to the currentNamibian law and practice and matters relating thereto. After completion of this section candidatesmust:

3.1.1 Know the sequence of events in the administration process of deceased estates.

3.1.2 Know the most important aspects of the function of the Master of the High Court, The Magistrate andthat of the Executor;

3.1.3 Know the contents of the more important sections of the Administration of Estates Act No 66 of1965 and the more important regulations promulgated in terms of section 103;

3.1.4 Be able to report an estate to the Master of the High Court; and/or the Magistrate.

3.1.5 Be able to manage the various consecutive steps in the administration process;

3.1.6 Be able to identify the various subsections of the liquidation and distribution account and todescribe these;

3.1.7 Be in a position to draw the complete liquidation and distribution account and know whichsupporting documents is required for each item;

3.1.8 Know how the various estate assets are valued.

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C. PRACTICE NOTES

1 INTRODUCTION.

The administration of estates is a specialised subject and a considerable effort must be put into your studies ifyou want to make a success in this regard.

The mere study of these notes will be insufficient to be successful. The study of the relevant statutes andhandbooks and decided cases on the subject is imperative. Be careful however that the statutes and handbooksstudied are relevant to the Namibian situation. Although basically the same statutes are used in South Africa,where most handbooks are printed, there are differences as a result of various amendments to statutes made in

Namibia as well as South Africa. The latest handbooks will, for example, deal with the 1988 IntestateSuccession Act and the 1992 amendment to the Wills Act which is not applicable to Namibia.

1.1 STATUTES.

It is essential that candidates have access to at least the following statutes, which as mentioned above MUSTbe annotated to conform to the Namibian law.

1.1.1 Intestate Succession Ordinance no 12 of 1946

1.1.2 Wills Act No 7 of 1953

1.1.3 Administration of Estates Act no 66 of 1965. Together with regulations thereto.

1.1.4 Children's Act No 33 of 1960 (section 74)

1.1.5 Native Administration Proclamation No 15 of 1928 (section 18(2))

1.1.6 Administration of Estates (Rehoboth Gebiet) Proclamation No 36 of 1941.(Schedule 2)

1.1.7 The Estates and Succession Amendment Act No 15 of 2005

Candidates should also be aware of the provisions of the following statutes:

1.1.9 Immovable Property (Removal or Modification of Restrictions ) Act no 94 of 1965.

1.1.10 Subdivision of Agricultural Land Act No 70 of 1970.

1.1.11 Recognition of Certain Marriages Act No 18 of 1991.

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2. WILLS

2.1 After this session the student should be able to:

2.1.1 Define the following subject terminology:

a/ Willb/ Statutory Willc/ Testate successionc/ Intestate successiond/ Testator e/ Witnessf/ Signature/Signg/ Initialsh/ Soldiers Willi/ Amendment/Deletion

j/ The Master k/ Revocation

l/ Executor m/ Securityn/ Legacyo/ Heirs/Legatees

p/ Fide Commissum/Fide Commissum Residueq/ Usufructr/ Collations/ Funeral Directiont/ Per Stirpes/Per Capita

2.1.2 Explain the formalities to comply with to execute a valid will, with reference the provisions of theWills Act no 7 of 1953.

2.1.3 Indicate who is competent to sign a will as witness

2.1.4 List the formalities required for amendments to a will in terms of section 2(b)(i)-(iv).

2.1.5 explain the rebuttable presumption in section 2(2) with regard to amendments to a will.

2.1.6 Distinguish between an heir and a legatee.

2.1.7 Explain the effect of repudiation, incapacity to inherit, failure or disqualification to inherit the objectof a bequest. Refer to substitution and accrual.

2.1.8 Explain the position of an adopted child.

2.1.9 Indicate who is competent to make a will.

2.1.10 Indicate who will be disqualified from benefiting under a will.

2.1.11 Draw a simple will and the various subdivisions with regard to a given set of facts.

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2.2. INTRODUCTION.

2.2.1 A will is a unilateral juristic act in which a testator or testatrix according to applicable legaldirections and by way of a free, written declaration stipulates on which basis and in favour of which

beneficiaries his assets must be distributed after his death.

A second or supplementary will as annexure or an addition to an existing will is called a codicil.Initially there were important differences between a will and a codicil especially with regard to theformalities in the execution thereof. These differences have gradually disappeared and at present, asfar as Namibian law is concerned, a will and a codicil are in all respects the same thing. Alltestamentary dispositions executed after 1553 must comply with the legal requirements as laid downin the Wills Act No 7 of 1953, as amended, and the name codicil has thus no separate meaning.

2.2.2 Joint and reciprocal wills

Any two or more persons capable of making a will may contain their wills in one single document.Such a will is known as a joint will. In practice it is normally a married couple who makes use of the

joint will. The parties do not have to leave any benefits to one another and each one of them is free toalter his/her will,(which is contained in such a joint will) or to revoke such a will without the consentor participation of the other party. The principle is that the joint will is in fact the separate will ofeach party contained in one single document.

A reciprocal will is a joint will in which the parties benefit one another. A reciprocal will is thus ajoint will, but a joint will is not necessary a reciprocal will. Also in a reciprocal will each party isentitled to revoke or amend his own will (contained in the reciprocal will) without the consent or

participation of the other party/parties. There is a presumption that bequests in joint or reciprocalwills are only applicable to the individual property of each participating testator.

However, where two or more testators in a reciprocal will consolidated or massed their separateestates into a single unit where-after they jointly dispose of the massed estate you get estate massingand then the principle with regard to the amendment and revoking of wills alters. Once adiation has

taken place after the death of the first dying the survivor may not alter the provisions of the joint will.

2.2.3 TYPES OF WILLS.

As regards the various forms of wills which we currently have in Namibia, we have the underhandwill which from a formality point of view is prepared in terms of section 2(1) of the Wills Act andthe notarial Will which is executed by a notary and filed in his protocol. This form of will (notarialwill) has to a large extent lapsed due to disuse. The Wills Act does not make provision for notarialwills and any "Notarial Will" must comply with the normal provisions of the act.

The Wills Act provides in section 3 for a Soldiers Will which is the only privileged form of willrecognised in the Act. It can be executed without the formalities prescribed in section 2(1)(a) of theact.

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2.3. THE PLACE OF THE WILL IN THE ESTATE PLANNING OF A PERSON

2.3.1 INTRODUCTORY REMARKS

The will is directed to that part of the planning of a person's affairs which is aimed at the "post

mortem" situation. This facet of estate planning aims to ensure that after the death of a person hisnext-of-kin will be properly maintained and that the fruits of the deceased's economic activitiesduring his life time will in a sensible way, and in their best interests, be awarded to his next-of-kin.Here the will therefore plays an important role: It is more or less the hinge on which the said facet inthe estate planning process hangs. The will performs the function of a conduit through which theassets collected during his life time can be channelled to his beneficiaries and to let this process runsmoothly and without any hitches a well considered and properly drafted will is of prime importance.Unfortunately this aspect of estate planning is often neglected. It is therefore a catastrophe if a

particular will is invalid because the formal requirements were not followed when it was prepared.Sometimes however, as far as the contents is concerned a valid will will be as great a disaster if itwas not properly considered at the drafting stage.

To prepare a significant will capable of being implemented and which will result in a trouble freeestate administration, a sound knowledge of the law of succession and other similar areas areindispensable. The ability to pronounce oneself, concise, clear and correct on paper without falling inlinguistic gymnastics and cumbersome sentences is a strong recommendation. The drafter of willsmust be able to set out the wishes and instructions of his client in such a way that the end result will

be what was actually intended. That is not always an easy task. It must throughout be guarded againstthat words and expressions, especially words and expressions with a certain legal technical content,do not create a false impression with regard to the intention of the testator. In short: the drafting of awill is not work for a layman.

2.3.2 THE IMPORTANCE OF A WILL

In the event of a person dying without a will the following problems will arise:

a/ There will be a delay in the appointment of an executor who will, unless exempted bysection 23 of the Estates Act, have to furnish security incurring unnecessary costs.

b/ The estate will devolve in terms of the Laws of Intestate Succession.

c/ An intestate estate situation very often has the result that it is difficult or totally impossibleto divide the estate according to the fractions to which each heir is entitled to in terms ofthe Laws of Intestate Succession as the case study will illustrate.

d/ An intestate estate often means the unnecessary or forced sale of assets to be able tofinalise the estate.

e/ Where the deceased leaves a wife and children the inheritance of the wife is limited whichmay create problems to the daily attention and maintenance of the children.

f/ The Master of the High Court requires proper security in respect of minor's inheritances.Cash inheritances must be deposited to the Guardians Fund under the control of the Masterof the High Court until they become majors.

g/ When both parents die simultaneously (eg. in a motor accident) and they leave minorchildren, there will be no executor, no guardian, no trustee who can administer theirinheritances until they attain the age of 21 with the result that everything hangs in the air.This brings unnecessary costs for the estate such as the appointment of tutors and/orcurators.

h/ If the deceased was a business man or a farmer who managed his affairs personally chaoticcircumstances may arise. The enterprise must be continued and debts must be paid. Bank

accounts are frozen at death and because there is no will in which an executor has been

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nominated, it may take a few months before an executor is appointed. Thesurviving spouse and the children often suffer substantial discomfort because the assets and

bank accounts are frozen and they have no access thereto.

i/ The application of rules in terms of intestate succession which is contrary to the Koran,

places the heirs of a Muslim who dies without a will, in a very difficult position. Thedeviation from the directions of the Koran about succession is considered by the Muslims ina very serious light and it is therefore of great importance for a Muslim testator to have avalid will in terms of which his estate id divided in terms of Islamic Law.

j/ It will in general be more advantageous for black property owners to have a will drawninstead of relying on the distribution in terms of the Native Administration Proclamation No15 of 1928

2.3.3 THE ROLE AND FUNCTION OF THE DRAFTSMAN OF WILLS

The draftsman of the will is, especially in bigger and more complicated estates, a member of the"planning team". He forms an important link in the "expertise chain" which consists of himself as alegal practitioner, the chartered accountant, the insurance expert, the financial planner or the experton the terrain of the capital market.

The person drawing the will is especially contributing the following expertise:

a/ Linguistic ability and formulating.

b/ Technical expertise with regard to the norms of the law of succession.

c/ Statuary law applicable to wills and estates.

d/ The way in which principles of the law of succession, certain aspects of the law andstatute law are applied and interpreted by the courts.

e/ He maintains his expertise by taking notice of new developments in the field of his subjectin order to provide an updating service to the client with a view to revising his testamentaryestate plan.

2.3.4 POSSIBLE CLAIM FOR DAMAGES.

The draftsman could lay himself open for a claim for damages if for any reason the will drawn up byhim is declared invalid. There have been cases where a beneficiary has entered a claim for damages

because he suffered loss as a result of an invalid will.

In the case of Pretorius V McCallum (so far unreported), the defendant attorney prepared a will forthe first plaintiff's father and signed as one of the witnesses. He only initialled the first page and thewill was invalid by reason of non-compliance with section 2(1)(a)(iv) of the Wills Act. The courtupheld the plaintiff's claim for the difference between what they would have inherited under the willand what they in fact inherited on intestacy.

Similar decisions have been given in several reported cases in England and New Zealand.

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2.4. REQUIREMENTS FOR A VALID WILL

2.4.1 STATUARY WILL.

The Wills Act No 7 of 1953 prescribes the requirements and formalities of a valid will.

In order to be valid, wills executed on or after 1 January 1954 must comply with theformalities prescribed by section 2 of the Act. The requirements are peremptory and failureto comply strictly therewith renders the will invalid:

a/ The will must be in writing.

b/ The will must be signed at the end thereof by the testator or by some other personin his presence and by his direction - section 2(1)(a)(i).

c/ The testator's signature must be made by him or by such other person, or beacknowledged by the testator and by such other person, in the presence of two or

more competent witnesses present at the same time -section 2(1)(a)(ii). Acompetent witness is any person of the age of 14 years or older who is competent togive evidence in a court of law - section 1.

d/ The same witnesses must then attest and sign the will in the presence of the testatorand of each other and in the case where someone else signs on the testator's behalfin the presence also of that person - section 2(1)(a)(iii). A witness must sign the willand unlike a testator may not sign by means of a mark - section 1.

e/ If the will consists of more than one page each page other than the page on which itends must also be signed by the testator and by the same witnesses anywhere on the

page - section 2(1)(a)(iv).

f/ If the will is signed by the testator by the making of a mark or by some other person

in his presence and by his direction, then a Magistrate, Justice of the Peace,Commissioner of Oaths or Notary Public (a certifying officer) must certify at theend of the will that he has satisfied himself as to the identity of the testator and thatthe will so signed is that of the testator. If the will consists of more than one page,each page other than that on which it ends must also be signed by the certifyingofficer anywhere on the page - SECTION 2(1)(a)(v).

If there is insufficient space after the testator's mark, the certificate can be endorsedat the top of the next page. Stemmet v The Master 1957(3) S.A. 404. If the space

between the top of the page and the certificate is too large the will will be invalidVolscheng v The Master 1958(2) S.A. 363. Nor will a certificate made in themargin be acceptable Gantsho v Gantsho 1986(2) S.A. 321.

There have been conflicting opinions as to when the certificate must be made. Thegeneral feeling is and in my opinion the certificate should be made as soon aspossible after execution of the will but before the death of the testator. Refer inparticular to Ex parte Goldman and Kramer N.N.O. 1965(1) S.A.464 and Soonaramv The Master 1971(3) S.A.588.

2.4.2 POINTS TO NOTE.

a/ In the case of Dempers v the Master 1977(4) S.A. 44, which decision wasconfirmed in the Appellate decision in Harpur v Govindamal 1993(4) S.A. 751, itwas decided that initials do not amount to a signature. If a witness initialled a willthis did not comply with the formalities and the will would be invalid. It istherefore advisable not to make use of a witness whose "signature" looks like beingmerely his initials as this could cause difficulties after the testator's death.

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b/ The testator has the right to sign the will either in the presence of twowitnesses or he may acknowledge his signature later to two or more witnesses -Bosch v Nel 1992(3) S.A. 600.

c/ Failure to sign each page renders the will invalid.

d/ The witnesses may not sign with a mark. (section 1). The same witnesses must signand attest each page of the will. The witnesses need not know that the documentthey are signing is a will, nor the contents thereof; no attestation clause isnecessary; "attest" is a synonym for "sign".

The Leprosy Mission v the Master 1972(4) S.A. 173 - A two page will was held tobe invalid because the witness who had signed page 1 were different from thosewho had signed page 2. There was no doubt that the document in questiongenuinely represented the last will of the testatrix but considerations of policy and

principles "transcend the equities of the particular case".

e/ The certificate required by Section 2(i)(a)(iv) is peremptory. Strict compliancethereof in required otherwise the will is invalid. Certificate is held to be arequirement of execution indicating a continuous process but must be completed

before the testator's death.

f/ The signatures must appear at the end of the will. See Kidwell v the Master 1983(1)S.A. 509. A will failed because the Court held that a space of 9 cm between the endof the typing and the signatures was too great for the signatures to be said to be atthe end of the will.

g/ The certifying officer may act in the capacity as witness and certifying officer. Hemust then sign the will separately in each capacity, ie. he must sign each pagetwice.

h/ The certifying officer must state his capacity and failure to do so renders the

certificate invalid. Radley v Stopforth 1977(2) S.A. 516. In Jeffry v the Master1990(4) S.A. 759 the Court held that a certificate signed by a person as "a

practising attorney" did not comply with the statutory requirements of the WillsAct, no matter that every such attorney is by legislative enactment a Commissionerof Oaths.

2.4.3 SOLDIERS WILL.

This is the only privileged Will recognised without observing the formalities prescribed bysection 2 of the Wills Act. It applies to any person on active service in any war in which

Namibia or her Allies is involved. For the will to be valid it had only to be in writing. Nosignature or witnesses is necessary, and the testator must have died on active service orwithin one year after ceasing to be on active service. If the Will was signed the Master had adiscretion to accept it. If the will was not signed, application has to be made to Court beforeit can be accepted by the Master.

2.4.4 AMENDMENTS TO WILLS.

a/ Amendment means any deletion, addition, alteration or interlineation.

Section 2(2) provides that any amendment is presumed, unless the contrary isproved, to have been made after the will was executed.

The formalities of amending the will are contained in section 2(b) of the Act andprovide that:

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i/ the amendment must be identified by the signature of the testator orthe signature of some other person made in his presence by his direction.

ii/ the signature must be made, or acknowledged, by the testator and if madeby some other person, also such other person, in the presence of two or

more competent witnesses all present at the same time,

iii/ the amendment must further be identified by the signatures of suchwitnesses made in the presence of the testator and if the amendment issigned by some other person also such person.

iv/ If the amendment is identified by a mark or the signature of some otherperson in the presence and by his direction, a Magistrate, Commissioner ofOaths, Notary Public or Justice of the Peace, must certify that he hassatisfied himself as to the identity of the testator and that the amendmenthas been made by or at the request of the testator.

On condition that the amendment is identified and properly executed in thepresence of the certifying officer, he may attend to the certificate as soonas possible after the amendment has been identified.

The Act is silent as to where this certificate must appear. However suchcertificate should clearly identify the amendment.

There is no requirement in respect of the certifying officer, testator orwitnesses or person signing on behalf of the testator signing all the pagesof the will. The requirement is simply that they must clearly identify theamendment.

2.4.5 COMPETENCY TO MAKE A WILL.

Section 4 provides that a person of the age of 16 years or older may make a will oncondition that he has the mental capacity to appreciate the nature and effect of his act. Theright to make a will is determined by the age of the individual and is not affected by hisemancipation, marriage, qualifications, financial status, etc. If a person is under the age of16 he may not make a will.

A mental patient can execute a will during a lucid moment. Although there is no provisionin the Act for such a case, it would be advisable for a certificate by a doctor to be attached tothe will certifying that the testator was aware of the fact that he was making a will andunderstood the nature of the document. This will avoid problems after the testator's death ofdetermining the testator's mental capacity at the time the will was executed.

2.4.6 CAPACITY TO WITNESS A WILL.

The Act defines a "competent witness" as a person of the age of fourteen years or older whoat the time he witnessed the will was not incompetent to give evidence in a Court of Law.

2.4.7 DISQUALIFICATION OF CERTAIN PERSONS FROM RECEIVING BENEFIT.

A witness to a will and the person signing the will on the direction of the testator or his/herspouse are incapable from inheriting under the will or of receiving any benefit thereunder.This includes being appointed as executor, administrator etc. (sections 5 and 6). Note thedifference in the wording of these two sections.

Under common law the following persons are also disqualified:

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a/ The person who writes or types the will. Smith and another v Clarkson andothers 1925 A.D. 501. and v Rensburg v v Rensburg 1963(1) S.A. 555. Note the

person who dictated the will to another to write is not so disqualified. The writermay however inherit if the benefit awarded under the will is less than what hewould have received in terms of the laws of intestate succession or if the testator

confirmed the bequest.

b/ A person who has unduly influenced the testator to give him a benefit under thewill.

c/ A person who is unworthy ("Die Bloedige Hand Erft Niet"). It includes a personwho negligently causes the death of another. A spouse married in community of

property is not precluded from taking his half share on the death of the other spousewhere he has wrongfully caused that spouse's death. The survivor's half shareaccrues to him by virtue of his marriage and not because of the other's death.Where the killer was mentally disturbed at the time of the killing and not criminallyresponsible for his actions, he is not precluded from inheriting.

d/ A person who has concealed the will of the testator Yassen v Yassen 1965(1)S.A.438.

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2.5. CONSULTATION

2.5.1 The following aspects should be borne in mind when your client consults you to draw up hiswill.

a/ Provide sufficient time for the consultation.

b/ Let the client feel at ease and win his confidence.

c/ Give the client the opportunity to ask questions.

d/ Answer the clients questions without bombarding him with technical terminology;communicate with him as far as possible on a basis of equality.

e/ Explain the importance of the will and emphasise that it is a free testamentarydisposition and also explain what his rights are.

f/ Discuss the choice of an executor and the question of provision of security by theexecutor.

g/ Discuss the implications of a testamentary trust where minor children are involved.

h/ Discuss the choice of a guardian or guardians where minor children are involved.

i/ The client would like to know what the preparation of the will will cost him,discuss the professional fee with him.

j/ Warn your client not to revoke the will or amend it in any way on the do-it-yourselfbasis.

k/ Point out to your client the importance of putting the will in safe custody and

advising members of the family where it is being kept.

l/ Ascertain the wishes of the testator.

i/ Exactly what does he want?

ii/ Can his wishes be implemented in practice?

iii/ Are his wishes in the best interest of his beneficiaries?

2.5.2 GET CLARITY ON THE STATUS OF YOUR CLIENT.

a/ Competency to make a will (Section 4 of the Wills Act No 7 of 1953).

b/ Marital status.

Unmarried.Married (place and date).In community of property.Out of community of property.Marriage in terms of foreign laws-details of factors applying to themarriage.

c/ Common law marriages.

Hindu or Muslim marriages.

Traditional customary unions of black people.

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Place and date.

Apart from the customary union have they also contracted a civilmarriage and if so where, when, with whom and what is the

matrimonial regime of this marriage?

d/ Previous marriages.

If the client was previously married, obtain full details as set out above as well asthe following information:

Dissolved by death.

Does the will of the predeceased spouse contain any conditions which willaffect the ability of the client to make a will or his financial position and ifso to what extent? (Obtain a copy of the previous will).

Does the will of the predeceased spouse contain any limiting conditionswhich have been registered against the title deed of the client.

Dissolved through divorce.

Does the final divorce order, or the settlement agreement between theparties, contain any conditions which might affect the financial position ofthe client or the preparation of the proposed new will? (obtain a copy ofthe divorce order and the settlement agreement if applicable).

2.5.3 A COMPLETE INVENTORY OF THE CLIENT'S ASSETS.

It must be considered that apart from a complete account of the client's assets a completestatement of his liabilities and obligations must also be made. It is useful to write downother information with regard to the client's personal and financial position which althoughnot necessary for preparing the will but may be useful for the eventual administration of theestate.

2.5.4 REHOBOTH BASTERS.

Wills executed prior to the Estates and Succession Amendment Act of 2005 are valid if theycomply with the provisions of the Administration of Estates (Rehoboth Gebied) Willsexecuted after this date must comply with the Wills Act of 1941.

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2.6 DRAFTING OF WILLS.

Freedom of testation is the freedom to execute a will in compliance with the prescribed formalitieswhereby the testator can leave his assets to whoever he pleases. See however paragraph 2.7.6.

The wills Act prescribes the formalities to be complied with in order for a will to be valid. The WillsAct does not prescribe the content of a valid will. The validity of a will, will not be affected by theinclusion or non-inclusion of any clause. There is accordingly no clause that must appear in a will forit to be valid i.e., nomination of an executor, nomination of an heir, attestation clause, etc. There isno requirement that the will must be dated but for practical reasons in order to determine the last willof a deceased, this is advisable.

In drawing up a will for your client the following should be borne in mind:

a/ Avoid complicated long-winded sentences.

b/ Avoid a senseless repetition of synonyms.

c/ Differentiate between imperative directions and mere requests("verbis imperativis" and"verbis precativis").

d/ Make sure of the legal terminology and the exact result of the legal concepts such asusufruct, fideicommissum and trust which are used in the will.

e/ You must have a proper notion of the basic rules, regarding the interpretation of wills.

f/ You should be aware of the interpretation that the Courts have placed on certain words. Seesection "F" for examples of words that have been defined by the Courts.

What is stated below are examples of clauses that may or may not be included.

2.6.1 HEADING.

The will usually contains a heading citing the testator by his name and also by a pseudonymor alias or other name by which he is generally known. The will must be identified as that ofthe testator.

2.6.2 REVOCATION.

The will should contain a revocation clause:

"I revoke all previous wills".

Where there is no revocation all wills of the deceased will apply. A later will in conflict withan earlier will, will by implication revoke the earlier provisions, on the assumption that thelater will represents the testator's last wishes. Clauses which are not inconsistent or inconflict will all apply.

A testator may revoke his will by destroying it provided that the act is done with the animusrevocandi.

There is a presumption that a testator destroyed his will animus revocandi if it was knownthat the original or copy thereof was in the testator's possession but cannot be found after hisdeath or is found to have been destroyed. There is no such presumption if the will was in thekeeping of a third person. The presumption is rebuttable.

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If a testator destroys a will on the mistaken belief that a later will was valid, when infact the later will is invalid, it is regarded that the destruction of the earlier will was not donewith the necessary animus revocandi.

Note there is no formal requirements in the Wills Act for the revocation of a will.

The doctrine of Dependent Relative Revocation. There is a strong presumption againstintestacy, therefore if a testator makes a will revoking a prior will, and thereafter destroysthe earlier will, and it turns out that the later will is invalid, the earlier will will be held notto have been revoked. The testator's animus revocandi will be assumed to be dependent onthe condition that the second will is valid Moses v Abinader 1951(4) S.A. 537 and Le Rouxv Le Roux 1963(4)S.A. 273.

The difference must be clearly understood between the case where the second will is invalidand the case where the beneficiary under the second will can not inherit. Ex parte Whiting1910 T.P.D. 529.

2.6.3 APPOINTMENT OF EXECUTOR/ADMINISTRATOR.

"I nominate "A" failing him "B" and "C" to be my executor/s of my will andAdministrator/s of my trust. In the event of any one of my Executors and orAdministrators ceasing for any reason to act I direct that the other or remainingExecutor or Administrators shall be entitled to act alone"

The executor occupies a fiduciary position and must not therefore engage in transactions bywhich he will personally acquire an interest adverse to his duty. It is for this reason that theexecutor who acts on behalf of the estate in a professional capacity cannot charge fees forthe work he may perform in that capacity. Thus it has been held that an executor is notentitled to fees for acting for the estate in his capacity as attorney, auctioneer etc.Meyerowitz comments that so strict is the principle that even if the estate is successful inlegal action and costs are awarded against the other party the costs cannot be recoveredexcept for disbursements. Where the executor is a shareholder in a company, that company

is also prohibited from charging any costs against the estate. If any fees are recovered by theexecutor they must be paid into the estate. See also in this regard the decisions in In rePretorius 1917 T.P.D. 211 and Die Meester V Meyer 1975(2) S.A. 1. One therefore shouldmake provision to include these charges claimable by the executor or administrator.

"we direct that our executor or administrator shall in addition to the normalremuneration be entitled to charge all such professional and legal fees to which hewould be entitled if he were not acting as executor or administrator herein."

2.6.4 ASSUMED EXECUTOR.

The right to assume (co-opt) another as co-executor is not a common law right. This rightcan only be exercised by an executor who is named in a will, and who is specifically giventhe right of assumption.

"I give my executor and administrator the power of assumption."

2.6.5 SECURITY.

Every executor and every assumed executor, except for certain persons mentioned in section23 of the Estates Act, is obliged to furnish security before he can be appointed. If anydefault is made by the executor in the performance of his duties, the Master may enforce thesecurity and recover from the executor or his sureties the loss to the estate. A testator hashowever the right to direct the Master to dispense with his executor furnishing security(subject to the Master's overriding discretion), as is required by the said section.

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"The Master of the High Court is directed to dispense with the necessity of myexecutor, or any assumed executor, furnishing security for the administration of myestate." "

It is advisable to exempt the executor even if such executor is one of the persons mentionedin section 23. Note that there is no automatic exemption of administrators from furnishing

security. They must be formally exempted by the will.

2.6.6 REMUNERATION.

The testator can direct in his will what remuneration the executor may take for theadministration of the estate. If no remuneration is fixed by will, the executor is entitled to afee as laid down in the regulations to the Estates Act. Section 51 of the Act makes provisionfor the Master (for special reasons) to reduce or increase the executor's remuneration as

prescribed. The section also allows the Master to disallow the fee where the executor actsimproperly. The tariff rate of executor's fee is 2 1/2% on the gross value of the assets in theLiquidation and Distribution account and 5% on income earned after death. VAT is payableon the executor's fee where the executor is a professional person. Where however a laymanis an executor and appoints an agent to assist him, VAT is still payable as the agent normallytakes the executor's fee.

2.6.7 DUTIES.

The executors and administrators may be the same persons although their functions aredifferent. The executors are concerned with the administration and liquidation anddistribution of the estate property. The executor will finalise the estate and distribute theassets to the named beneficiaries. If a testamentary trust is created the executor willdischarge his duties by transferring the assets to the administrators who will then attend tothe administration of the trust in terms of the provisions, powers and conditions of the willwhich should be clearly set out. Refer to the relevant text books as well as paragraph 5.1.3for examples of powers and duties that can be given to an administrator.

2.6.8 LEGACIES.

The estate of a predeceased person is distributed after payment of liabilities by first handingover pre-legacies and then legacies.

"I bequeath the following legacies:

a/ As a pre-legacy the sum of $10 000.00 to my wife.b/ The sum of $5 000.00 to my cousin Michael Smith.c/ The sum of $2 000.00 to Primrose Ndlovu on condition that she is still in myemployment at the time of my death.d/ The sum of $1 000.00 to my uncle Donald Smith.

2.6.9 THE HEIRS.

The heirs succeed to the residue of the residue of the estate after payment of administrationexpenses, debts, maintenance claims. pre-legacies and legacies.

"I bequeath the residue of my estate to my wife Mary Smith failing her to thechildren born of our marriage per stirpes".

2.6.10 DIRECT SUBSTITUTION AND FIDEICOMMISSARY SUBSTITUTION.

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Direct substitution occurs when the testator in his will directs that, if the bequest to acertain heir or heirs fail, the benefit must pass to a named successor or successors. There is no limitto the number of substitutes a testator may nominate. He may nominate them one after the other, ortogether or he may nominate different substitutes for different heirs. The substitutes can also benominated per stirpes.

The object of direct substitution is to avoid intestate succession in respect of a bequeathed benefit.It also serves to exclude ius accrescendi

Fiduciary substitution Occurs where in a will a testator directs that the whole or part of his estate, ora part thereof must devolve, after his death, on a whole series of successors, so that the bequest

passes from one successor to another. The different successors thus inherit the same property of thetestator one after the other. The first beneficiary is called the fiduciary and the following successorswho receive the benefit after the fulfilment of the prescribed condition are called thefideicommissaries.

In practice it is an everyday task to determine, in interpreting wills to decide whether a direct orfideicommissary substitution was contemplated. As a fideicommissium is burdensome to the partiesinvolved, the common law was not in favour of a fideicommissium, and in a case of doubt, there isa presumption against a fideicommissium.

In van Zvl and others v van Zvl and others 1951(3) S.A. 288, the appellate division made it clearthat where the wording of a will clearly incorporates a fideicommissary substitution, effect must begiven to it. It is only where there is a reasonable doubt whether the testator envisaged a directsubstitution or a fiduciary substitution that there is a presumption in favour of direct substitution.

2.6.11 FIDEICOMMISSUM.

In a fideicommissum, the position is that the testator has left property to a fiduciary, subject to thecondition that after the occurrence of a certain event or time, the fiduciary must hand the property tothe fideicommissary. There is always at least three parties involved, namely, the testator, the

fiduciary and the fideicommissary. The will can provide for more than one fideicommissary, in whichcase the property will pass to each fideicommissary in turn. Although there can in theory be anunlimited number of fideicommissaries, the Immovable Property (Removal or Modification ofRestrictions) Act no 94 of 1965 limits the fiduciary interests in fixed property to two successivefideicommissaries only. There is no limit to fideicommissaries in respect of other property or the

proceeds of fixed property subject to a fideicommissum alienated within the period allowed by thesaid act.

The fiduciary becomes the owner of the property subject to the onus to pass it onto thefideicommissary as directed by the testator in his will. The fideicommissary then becomes full owner,or if it is a continuing fiduciary interest, the next fiduciary.

The fiduciary must keep the property in good order so that it can be passed to the fideicommissary inthe same condition that he received it. Unless he has been given the power in the will, he may notalienate the property without the consent of the fideicommissary or, if the fideicommissary is a minoror undetermined, the court.

If however the interest created is a fide commissum residue the fiduciary can alienate the assets butin terms of the 108 the Novelle of Juatinian, at least one quarter must remain to be passed over to thefideicommissaries.

The fiduciary interest does not fall into the community estate of a person married in community of property but the fruits thereof will. Should the fiduciary become insolvent, his interest in thefiduciary assets can be realised. ie. the purchaser will take over the assets subject to the existingfiduciary right.

The fideicommissary is the person to whom the assets must be delivered. He need not be in existence

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at the date of the testator's death. In fact he can be born generations after the testator. It isessential that he be alive or already conceived at the moment of delivery of the fiduciary assets. If thefidei commissary dies before acquiring the assets the fiduciary interest falls away and his heirsacquire no right to the property. The fiduciary then acquires full ownership of the assets, unless thetestator ordered otherwise in the will.

Pending the fulfilment of the condition, the fidei-commissary has apparently only a personal right asagainst the fiduciary for the delivery of the property when the condition is fulfilled. Barnhooren vDuvenaqer 1964(2) S.A. 486.

The testator can positively settle a fideicommissum, ego "I leave my farm to A and on his death itmust go to B", or in a negative manner, ie. if the property is left to A subject to the condition that itmay not be alienated outside the family but must pass from generation to generation.

A prohibition of alienation without directing in whose favour such prohibition is created is a nudoprohibitio and of no legal effect.

A fidei commissum falls away and is terminated if the fideicommissary expressly repudiates it or ifall the interested parties consent thereto. If the ultimate heirs are minors or are undetermined, thecourt as upper guardian must consent thereto.

2.6.12 DISTINCTION BETWEEN FIDEI COMMISSUM AND USUFRUCT.

Although a fidei commissum and a usufruct appear to be similar, there are fundamental differencesbetween the two institutions.

The basic principle is that in a fidei commissum, ownership vests in the fiduciary and later passes tothe fideicommissary when the condition is fulfilled or if it is not fulfilled, then it forms part of theestate of the fiduciary.

In a usufruct, the usufructuary never has ownership, only a real right in the property. Ownership ofthe property remains in the bare dominium holder who cannot be the usufructuary. If the usufructuary

does become owner, then the usufruct ceases by merger.

The basic question to be answered in a doubtful case is therefore whether the testator intended theownership to vest in the second beneficiary at the time of the testator's death or at some later time. Ifownership is intended to vest as at the date of death then a usufruct and not a fiduciary interest iscreated. If ownership is intended to vest in the first holder immediately subject to the condition that ifhe dies before the second holder, it will not fall into his estate but will pass to the second holder, thenthe bequest will be a fidei commissum.

Although if it is not clear whether a fiduciary substitution or a direct substitution was intended, thenthere is a presumption against it being a fidei commissum, however there is no such presumption ifthere is doubt as to whether a fiduciary interest or a usufruct was intended

Example of a fideicommissum residui.

"We appoint the survivor of us to be the sole and universal heir of the first dying with fulland absolute power to alienate all or any portion of the estate, subject to the condition thatupon the death of the survivor whatever shall be left of the estate shall devolve upon thechildren of our marriage then alive, and the issue per stirpes of any child who may have

predeceased the survivor leaving issue.".

Example f a fide commissum:

"I bequeath my estate to "A" subject to the condition that on "A"'s death my estate shalldevolve on "B"."

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Example of a usufruct:

"I bequeath the residue of my estate to the children born of our marriage subject to the lifeusufruct therein in favour of my wife Sandra."

"Subject to the usufruct of my wife Francis, I appoint as heirs of my estate such of mychildren who survive my wife and the lawful issue per stirpes of any child who may have

predeceased my wife leaving issue alive as at date of her death."

In terms of section 44 of the Estates Act, a fiduciary or a usufructuary, even if such fiduciaryor usufructuary is the natural guardian, must furnish security to the Master if the ultimateheirs are minors. Under common law, major fideicommissary or bare-dominium heirs candemand that the fiduciary or usufructuary furnish security for the ultimate payment of theamounts due to them. It is therefore advisable for the fiduciary or usufructuary to beexempted from furnishing security.

"My wife shall not be required to furnish security for the payment of the amountsdue to our children or their issue."

2.6.13 HEIRS TO INHERIT FREE OF COMMUNITY.

"In the event of any beneficiary being married or subsequently married incommunity of property, any share of my estate shall be specifically excluded fromsuch community of property and such beneficiary's share shall not form part of any

joint estate, it being my express intention that the benefit shall be for the exclusive,unrestricted, sole use of my named beneficiary."

2.6.14 COLLATION.

The only persons obliged to collate are the direct descendants of the deceased who are heirsab intestato, or would have been the deceased's intestate heirs had there been no will.

Collation takes place by operation of the law and consequently it is not necessary to providein the will that heirs should collate. If the testator does not wish collation to take place hemust specifically say so.

"There shall be no collation".

See paragraph 4.13.5 ii. for a further discussion on collation.

If there is a likelihood of dispute or doubt as to what must be collated, this should be stated.

"I direct that my son John and my daughter Mary shall collate the sum of $2 000.00each which I gave to them as wedding gifts. Save for these amounts I direct thatneither of them nor any of my other children shall collate any gifts or amountswhich I may have given to them."

2.6.15 APPOINTMENT OF GUARDIANS AND TUTORS

he Matrimonial Affairs Act no 37 of 1953 prevents a parent of a minor who does not havesole guardianship by testamentary disposition from appointing any person as guardian of aminor unless such parent was the sole natural guardian immediately before his death(section5(3)(b)).Where a parent who does have sole guardianship has appointed a guardian, the court, uponapplication of the other parent, made after the death of the testator, can make such order inregard to guardianship as the court may deem in the interest of the minor.

"If when the survivor of my spouse and I dies, any of our children

are still minors, I appoint "AB" and "CD" or, failing either of them, the other of

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them as the guardian/s of such minor children and tutor/s of their assets. Idirect that the tutor so nominated shall be exempt from furnishing security to theMaster of the High Court."

2.6.16 FUNERAL DIRECTIONS.

A testator should be asked what he requires shall be done with his body upon his death andshould he indicate a preference, a specific clause should be inserted in his will. Where atestator has not provided funeral directions the heir shall determine the manner, time and

place of the funeral.

"I direct that upon my death my body shall be cremated and I record a desire thatmy ashes shall thereafter be scattered upon my farm Happy Home"

" I direct that upon my death my body shall be utilised by the University of ....... forthe purposes of medical research as the medical faculty of that university may in itsentire discretion decide, and further direct that after such utilisation my remainsshall be cremated".

"I direct that upon my death my body shall be buried in the Windhoek cemeteryalongside that of my deceased wife ................ "

"I direct that any usable tissue and/or organs to any hospital orinstitution selected by my nominated executor to be used for organ transplantand/or such other purpose as they may deem fit".

2.6.17 SIMULTANEOUS DEATHS AND THE WILL OF THE SURVIVOR.

We are living in dangerous times. Families are travelling by motorcar, by train and by

aeroplane and accidents as a result thereof are common. Testators are often not satisfied tolet the person whom he nominated as heir in his estate, determine in his own will how theassets inherited from the deceased should devolve as will happen if the heir diessimultaneously with the testator or shortly thereafter. Spouses very often nominate eachother as sole beneficiary and should they die simultaneously in a motorcar accident, bothestates are intestate. The draftsman is very often requested to insert a clause in the will tocover such an eventuality. A good example of problems which may occur in case ofsimultaneous death of two spouses in the same disaster, is found in the case of Greyling NOv Greyling NO and others 1978(2) S.A. 144. The testators a husband and wife who weremarried in community of property had a joint will in which they stipulate that if the husbandshould be the first dying their one son will inherit all fixed property and farming implementssubject to the usufruct of his wife while she would inherit the remainder of the estate. In thefollowing clause they stipulated that should the wife be the first dying the husband wouldinherit everything. In the following clause they merely stipulated that should they diesimultaneously the estate will be divided on a particular basis between the children. Thecouple were on occasion travelling alone and were involved in a serious motor accident. MrsGreyling died instantaneously while Mr Greyling died in the ambulance on the way to thehospital. In Namibian law it is accepted that if two people died in the same disaster andthere is no proof who died first, it is considered that they have died simultaneously. In theGreyling case there was evidence to prove that they did not die simultaneously but the oneafter the other. This state of affairs had the result that the Greyling children got divided intotwo camps and the court was approached to interpret the word "gelyktydig" orsimultaneously as it was used by the testators in the particular clause in the joint will. Thecourt ultimately decided that with the word "simultaneously" the testators have foreseentheir simultaneous death in the same accident and that they wanted to arrange their affairsaccordingly. Should the "common disaster clause" used in the will have been described more

properly this drawn out court case which must have been an expensive process, would have

been avoided.

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When considering the eventuality of the testators dying simultaneously it should be borne inmind that where, as in most cases, the survivor has been nominated as executor, provisionshould be made for an alternative executor.

There is no presumption in our law arising from age or sex as to survivorship nor is thereany presumption of simultaneous death. The question is one of fact depending upon theevidence.Survivorship is essential to inherit and is all important in determining beneficiaries. Ex parteGraham 1963(4) S.A. 145.

Although a joint will is the separate will of both testators, these wills are normally drawn upin such a way as to be only the will of the first dying. the following suggestion can be usedin order to provide for the death of the survivor as well. The nomination of executors willhave to be worded so as to provide for the appointment in the estate of the survivor.

"In the event of our simultaneous deaths or should the survivor die within 30 daysof the death of the first dying or should the survivor having survived the first dying

by 30 days but die without making a further will, we bequeath our joint estate or theestate of the survivor of us, as the case may be, as follows .............."

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2.7 GENER COMMENTS.

2.7.1 JOINT WILLS AND MASSING.

A joint will is a document containing the wills of two or more persons set out in onedocument for convenience. It is the separate will of the parties and consequently eachtestator is at liberty to revoke or alter his will without the knowledge or collaboration of theother testator. It may operate as the will of the first dying and it may also operate as the willof the survivor.

If a joint will provides for the consolidation of some or all of the property of both testatorsinto one unit for the purposes of a joint disposition to a third party upon the death of thefirst dying, or upon the death of the survivor and also confers a benefit out of the property ofthe first dying upon the survivor, then, if the survivor adiates, it is said that a massing has

been effected.

There is a presumption against massing but one must be careful not to create a situationimputing a massed estate such as where:

a/ the first dying disposes not only of his own property but also of that of the survivor;and

b/ the survivor accepts some benefit under the will of the first dying testator.Then it will be said to be a "massed estate"

2.7.2 VESTING.

Unless there is a clear indication to the contrary in the will, every bequest is presumed to beunconditional and vests in the beneficiary on the testator's death.

The vesting gives the beneficiary the right to claim the benefit which is only payable afterthe executor's liquidation and distribution account has lain free from objections forinspection i.e. dies cedit occurs immediately after death but time for payment, dies venit,occures only after compliance with section 35(12) of the Estates Act. e.g. If a cash legacy is

bequeathed the legatee will not be entitled to interest from date of death until date when heis entitled to claim payment unless the testator has specifically so directed in the will.

2.7.3 PROHIBITIONS AND FORFEITURES.

A prohibition or forfeiture is in itself ineffective unless it becomes enforceable against thebeneficiary penalised, and it can only be enforced if the will provides for a substitution ofanother beneficiary on the breach of the condition. If there is no substitution or "gift over"the prohibition or forfeiture is said to be "nude" and will have no effect.

2.7.4 PER STIRPES AND PER CAPITA.

Per stirpes means adistribution by representation e.g. where the bequest is left to the issueper stirpes of A and B, one half must be divided among the children of A and one halfamong the children of B. If any child has died leaving children, those children will receivethe share that their parents would have received had he been alive to take.

Per capita means a distribution in equal shares among the persons entitled to take e.g. wherea bequest is left to the children per capita of A and B, all the children of A and B share the

bequest equally.

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Every beneficiary has the right to decide whether or not he wishes to inherit. Choosing toinherit is known as adiation and refusing to inherit is repudiation. In practice formal adiationis only required from an heir if the bequest is subject to a condition or burden.

2.7.6 FREEDOM OF TESTATION.

Although there is freedom of testation in Namibia, certain statutes do limit testation incertain respects.

a. Agricultural land.

The provisions of the sub-division of Agricultural land Act no 70 of 1970 limit thetestator's power to subdivide agricultural land.

b/ Pension funds.

The Pension Fund Act provides that any benefit payable by a Pension Fund inrespect of a deceased member does not form part of the member's estate. If, withinone year of the member's death, the fund discovers a dependant of his, the benefithas to be paid to the dependant (in proportions deemed equitable by the trustees ofthe fund). If no dependants are discovered and the member has designated inwriting a nominee dependant to receive the benefit, that benefit has to be paid tohim.

It is only if no dependants are discovered that the pension proceeds will be paid tothe estate.

c/ Fideicommissum in perpetuity.

Section 6 of the Immovable Property (removal or modification of Restrictions ) Act

no 94 of 1965 limits the number of fideicommissa that may be created in respect ofimmovable property which, notwithstanding the terms of the will, is limited to twosuccessive fideicommissaries, ie. the property will be transferred to the third

beneficiary who will then acquire full ownership notwithstanding the creation ofsubsequent fideicommissa.

2.7.7 FAILURE OF BENEFICIARIES.

What happens to the share of a beneficiary who predeceases the deceased or for any otherreason is unable to inherit will depend on the intention of the testator as reflected in the willread as a whole. The possibilities are as follows:

a/ Direct substitution.

The testator can state in his will what must happen should a legatee or heir fail. Forexample.

"I appoint "A" as my heir, failing which I appoint "B".

Although there is a presumption against a fideicommissum, the wording of the willwhere direct substitution is contemplated must be such that it cannot be interpretedas being a fideicommissum.

b/ Jus Accrescendi. (right of accrual).


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Jus Accrescendi is the right of co-heirs or co-legatees to succeed to the share of theheir or legatee who cannot inherit.

Whether Jus accrescendi is applicable or not will depend on the testator's intentionfrom the wording used. The case of Winstanley v Barrow 1937 AD 75 laid down

guidelines to determine whether Jus accrescendi will be applicable, nl. if thetestator has not separated the interests of the beneficiaries from each other, i.e. ifthere is a joiner re tantum or re et verbis, there is a presumption that jus accrescendiwill operate.

Where however the testator has separated the interests of the beneficiaries, i.e. ajoiner verbis tantum, there is a presumption against jus accrescendi. For example ifthe testator left specific portions of the estate or an asset to various beneficiaries, orwhere the estate is bequeathed to the heirs in equal shares.

These presumptions must yield, however, if it appears from the will read as a wholethat the testator intended otherwise. In the case of Lello v Dales 1971(2) S.A. 330 itwas held that although the bequest was "in equal shares" (ie. verbis tantum) it wasclear that the testator did not intend that the laws of intestate succession shouldapply and jus accrescendi was applicable.

c/ Section 115(bis) of Act 24 of 1913.

This little known section of the 1913 Act was not repealed when theEstates Act of 1965 came into force in 1970 and is therefore still part of our law.This Section reads as follows

Desendants of predeceased child of testator entitled to benefit under will

115bis. Whenever according to the terms of the will of a testator who diesafter the date of commencement of the Administration of EstatesAmendment Ordinance, 1961, a predeceased child of that testator wouldhave become entitled to any benefit under that will if he had survived thetestator, the lawful descendants of that child shall be entitled per stirpes tothat benefit unless the terms of the will indicate a contrary intention.".

This can be regarded as an exception to the Jus Accrescendi rule.

d/ Intestate succession.

Where neither a/ b/ or c/ above apply, the general rule is that legacies that fail, fallinto the residue of the estate and if a residuary heir fails, his share would devolveon the intestate heirs of the testator. NB. NOT THE INTESTATE HEIRS OF THEDECEASED HEIR.

2.7.8 Keep stipulations as simple as possible however, be cautious not to oversimplify matters.The draftsman must know the rules of succession and similar areas of the law and must beable to apply his knowledge.

2.7.9. Be aware of interpretations that the courts have given to certain words. For example inCoetzee versus the Master and others 1982(1) S.A. 295 "cash" was interpreted to be onlycash on hand as at date of death or cash on savings or current account in a bank or buildingsociety. See section "F" for further examples.

2.7.10 ADOPTED CHILDREN.


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In terms of section 74 of the children's Act, an adopted child cannot inherit under a willexecuted prior to the date of adoption. If your client has adopted children or considersadopting children, include a clause in the will to the effect that "children" shall include anyadopted children.

2.7.11 CHILDREN BORN OUT OF WEDLOCK

Under Common Law, children born out of wedlock can not inherit under a will or intestateUNLESS of their fathers the will clearly indicates that they should inherit.It is the intention in terms of the Childrens Bill which is at present under discussion inParliament to make children born out of wedlock entitled to inherit from their fathers. Untilsuch time that this statute is passed, the Common law will apply.

2.7.12. SAFE CUSTODY.

a/ Discuss the safe custody of the original will and duplicate originals with the clientand explain the status of a signed duplicate original.

b/ The client must be warned, not to attend personally to alterations or deletions onthe will or on the duplicate original under any circumstances.

c/ Your client should tell his family members where the original will is being kept insafe-keeping. It has happened that an estate of a deceased has been administered asintestate only to have the will discovered after the estate has been finalised,resulting in the estate having to be reopened. If minors are involved and fixed

property has been transferred into their name on intestacy, it will require anapplication to court to rectify the position.

2.7.13. PERIODIC REVIEWING OF THE WILL.

The client must be informed about the importance of having his will reviewed on a regularbasis. Circumstances change as the time goes by and it is not "touting" to periodically get intouch with your client and ask him to call for a follow up consultation.

Wills should be revised at least in the following instances:

a/ Change in status of the testator and/or beneficiaries.

b/ Birth or death of children of the testator.

c/ Purchase or sale of major assets.

d etc.

2.7.14 ADEMPTIO.

There is a presumption that, if a testator alienates an asset that has been speciallybequeathed, he has revoked that bequest. A good reason for the revision of the will. Abequest, for example of "My Toyota Sedan motor car no N1234W" will lapse if the testatortrades this vehicle in, for example, for a Ford station wagon no N76543W, even if it is hisintention that the legatee should get this vehicle.


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2.8. CONCISE NOTES REGARDING THE INTERPRETATION OF WILLS.

The whole question regarding the interpretation of wills revolves around the single concept namely todetermine the true intention of the testator as it appears from the words used in his will. Words areinterpreted according to their general grammatical meaning ("dictionary meaning and technical terms

such as "usufruct", "fideicommissum", "trusts" etc according to their legal technical meaning).However the rules just mentioned must also in some cases make way for the actual intention of thetestator and this can be explained as follows:

One of the important aids used to determine the intention of the testator is the "scheme" of the will asa whole; words. expressions or phrases are not seen in isolation, but against the background of thetotal structure of the whole will. The "physical construction of the will is therefore taken intoaccount, matters such as the division into paragraphs, punctuation, the place of a stipulation in thewill in relation to other stipulations etc.

Furthermore, if it is evident from the scheme of the will that a word, expression or phrase as it wouldbe interpreted in the normal grammatical or technical sense as the basic rules require, will lead toabsurd results which clearly does not agree with what the testator had in mind, then the grammaticaland technical meaning of the word need not be followed and expression is given to the word which

will be in line with the obvious intention of the testator. On this basis the courts have on numerousoccasions determined that a usufruct has been created although the testator used the wordfideicommissum in his will.

A further important principle in interpreting wills is that should it clearly appear from the will whatthe testator's intention was, no evidence "aliunde" (that is evidence outside the will), may be used toadd, amend or to do away with contents of the will. Such evidence, also known as "parol evidence",is only allowed when the intention of the testator is not clear and it is therefore necessary todetermine what the intention was and when the court is not in a position to reach a decision by justlooking at the will. Extrinsic evidence (aliunde evidence) is for example allowed to determine themeaning of illegible or incomprehensible words or phrases or of abbreviations, initials, nicknames,technical and scientific expressions, foreign words, words used in the context of certain commercial

practices or which may be used in relation to certain groups, places, ethnic instances or religious

matters or where normal words in the context of the will were obviously used in a certain sense bythe testator. Thus intrinsic evidence can therefore be used to prove that the testator has meant withthe words "my wife" the woman with whom he lived together at the time of his death without beinglegally married to her, or "the brother of my daughter" a strange son which he allowed for manyyears to stay with him in his house and whom he brought up as his own child, etc.

Evidence was allowed in the past that the word "ram" is not a male sheep but in fact a certain type ofwater pump. The court is entitled to place itself in the position in which the testator was at the timewhen he made the will and then out of the arm chair position to be able to look at all relevant factsand circumstances which was known to the testator, in order to determine what the testator had inmind by using certain words and expressions. The so called "armchair evidence" is always allowed.

Furthermore "alliunde" evidence can also be used to determine the contents of a will where the willhas been lost or destroyed in error.

The interpretation of wills must be distinguished from the rectification or amendment of a clearmistake in a will. A good example of rectification can be found in the case of Ex parte Blasberg1979(2) S.A. 589.

A key judgement in the modern South African law regarding the rectification of wills is found in thecase of Aubry-Smith v Hofmeyer NO 1973(1) S.A. 655.

In an extraordinary decision in Administrators estate Richards v Nichol and another 1996(4) S.A. 253the Courts varied the terms of a will to take the effects of inflation into consideration.

The last important point: the court cannot rectify the will if the testator himself forgot or for one orother reason neglected to include a certain stipulation in the will. It is a basic rule that the court

cannot make a new will for the testator. If there are no words or phrases that can be interpreted as is


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the case where the testator left out certain stipulations there is nothing capable of being rectified.Therefore:

2.8.1. Consult comprehensively with the client and make sure what he wants and also be aware of languageusage and the technical terminology applicable to the law of succession.

2.8.2 A final consultation before signing where the whole will is discussed with the client in orderto determine that it contains his wishes, is most important.

2.8.3 It may be a good idea before the will is finally signed to draw up a test distribution account, using theinformation obtained from your client, to ascertain whether the will as drawn is in fact practical, andwill carry out the testator's intention. For example in one instance the testator, who had donated say,$1 000.00 to one of his children wanted his two children to share equally and stated ".. the $1 000.00must be deducted from the award to "A" and given to "B".". If a test had been done it would have

been clear that the result of this clause would be that "B" would receive $2 000.00 more than "A" andnot $1 000.00 as the testator intended.

2.9 THE USE OF WORD PROCESSORS.

In these days of computerisation, Most firms have access to word processors. These can be used togreat advantage in drawing up wills for your clients or for amending will already executed.

The various clauses of wills are more or less standard and if these are saved separately, they can berecalled and strung together to suit your client's requirements, with only the additional details ofnames, amounts and/or details of legacies needing to be added. In this way errors and omissions ofimportant provisions can be avoided.

The most important advantage of this procedure is that your client's will can be printed out and beready for signature within a few minutes. It has happened that due to delays in drawing up a will, thetestator has died before his will could be signed.

It would be a good idea if a copy of your clients will, saved on computer disk, is kept with theoriginal or copy in your files. Minor alterations can then easily and quickly be made at the testator'srequest and again much time can be saved in having the amended document ready for signature.


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2.10 EXAMPLE OF A WILL. SEE SECTION D FOR FURTHER EXAMPLES.

LAST WILL OF DONNA WANNADIE widow of Windhoek.

1. PREAMBLE.

1.1 Unless it appears otherwise from the context, words importing the masculine gender will include thefeminine and visa versa, and words importing the singular will include the plural and visa versa.

2. REVOCATION OF FORMER WILLS.

2.1 I revoke all previous wills.

3. APPOINTMENT OF EXECUTOR AND ADMINISTRATOR.

3.1 I nominate ANTONIO ANNA, or failing him my sister, TOSCA VERDI and JOHN SIMM, or thesurvivor of them as executor of my will and administrator of the trust.

3.2 I give my executor and administrator the power of assumption and the Master of the High Court isdirected to dispense with the necessity of furnishing security in respect of his administration, or theadministration of any person assumed by or succeeding him.

4 APPOINTMENT OF HEIRS

4.1 I bequeath my entire estate to my children, failing whom their issue per stirpes, subject to the Trustcreated in Clause (5) below.

5 CREATION OF TRUST

5.1 If an heir has not attained the age of 25 (TWENTY FIVE) years, such heir's share of my estate shallnot vest in him but shall be paid over to my nominated Administrator, upon trust for the following

intents and purpose:

5.2 INVESTMENT OF TRUST FUNDS

5.2.1 My Administrator shall be entitled to retain the trust assets in the same form as they are handed tohim or in his sole discretion may convert same into cash at such time and in such manner as he maydeem fit and invest or re-invest the proceeds thereof in such securities including equities of anynature, as he may form time to time in his absolute discretion decide with the specific power toacquire immovable property, mortgage same or grant mortgage bonds, it being my intention that myAdministrator shall be absolute unfettered in his choice of investments and shall have the power tovary such investments as he shall think fit.

5.3 USE OF CAPITAL AND INCOME DURING OPERATION OF THE TRUST.

5.3.1 My administrator shall utilise so much of the income accruing to the trust estate(after deductions ofall fees, disbursements and if any, taxes) as he in his sole discretion may deem necessary for themaintenance, education, advancement in life, will being and travel of an heir, subject however to thecondition that no heir shall receive more than his proportionate share of the income.

5.3.2 I further give to my administrator the power to make advances to an heir out of capital for suchpurposes as he may deem reasonable or desirable giving him full discretion as to what advances hemakes from time to time, and such heir's estate shall not be obliged to refund any such advancesshould the heir die before attaining the age of 25 (twenty five) years.


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5.4 PROHIBITION OF DISPOSAL OF RIGHTS IN TRUST.

5.4.1It is a special term and condition of the creation of this trust that no heir shall be entitled to alienist,pledge, cede, mortgage or deal with his capital or his income or other interest or benefits thereunderin any way whatsoever, and any such attempted alianation or dealing shall be null and void as far as

my administrator is concerned.

5.4.2 If the estate of an heir is surrendered or declared insolvent or made subject to any like process, theright of the heir to any benefits from the trust shall immediately and entirely and ipso facto bedeemed to have ceased, and shall vest in the other heirs provided for in my will or his trust as thecase may be, to all intents and purposes as if the heir concerned had died.

5.4.3 Notwithstanding the foregoing, my administrator shall have the power in his sole and absolutediscretion and at such time or times as he may deem fit, to apply income or if that be insufficient,capital for the maintenance, support of or otherwise for the benefit of that heir concerned, his spouse,if any, and any issue of that heir.

5.5 PAYMENT TO HEIRS.

5.5.1 As soon as an heir attains the age of 25(twenty five) years his share of the trust shall then becapitalised and the capital and interest together with accumulated income, less advances made interms of Clause 5.3 above, shall devolve upon him entirely to deal with as he deems fit.

5.5.2 In the event of an heir dying before attaining the age of 25 (twenty five) years then on his death theshare which he would have been entitled shall devolve upon his issue, if any, subject to the trust,failing which to the surviving heir or his trust as the case may be.

5.5.3 I give to my administrator the power to defer the payment of any bequest or inheritance for a periodnot exceeding 12 (twelve) months from the date of such bequest and/or inheritance is due in order toavoid liquidating my or the trust's business interest or other assets or investments at the time when he,in his discretion, considers it inadvisable to do so.

5.6 LIMITATION OF ADMINISTRATOR'S LIABILITY.

My administrator shall not be liable to make good to any heir of my estate any loss occasioned orsustained from any cause however arising except such loss as may be arise from or be occasioned byhis own personal dishonesty or other wilful misconduct.

5.7 PAYMENT IN CASH OR KIND.

My executor and administrator shall be entitled to pay or make over any amount due to a beneficiaryin cash or in kind whether for the purpose of allocating assets or for the purpose of payment to a

beneficiary, to distribute the assets of my estate in such manner as he considers fit in accordance withthe valuations made or obtained by him in his discretion which valuation shall be final and bindingupon all persons affected thereby.

5.8 HEIRS TO INHERIT FREE OF COMMUNITY.

Should any person who will benefit under this my will be married in community of property orsubject to any law of accrual, then notwithstanding such community of property or accrual, the

benefits payable to him under this will shall devolve upon and belong to him personally and shall notform part of any such community or accrual.

5.9 GENERAL PROVISIONS.

Any beneficiary under this will shall be entitled to repudiate the whole or a part only of hisinheritance or legacy without affecting his right to the remainder of the inheritance or legacy, andnotwithstanding, shall remain entitled to any other benefits provided for in this will.


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5.10 COLLATION.

There shall be no collation.

THIS DONE AND SIGNED AT ................................ on this the day of ........................199 ... in thepresence of the undersigned witnesses all being present at the same time.

Testator ..............

Witness ...............

...............


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WILLS

Exercises to be completed without reference to the notes or handbooks.

QUESTION 1

Draft a simple joint will in which the survivor is appointed sole heir and executor.

QUESTION 2

Draft the following clauses that could be included in a will:

a/ The nomination of you as legal practitioner as executor with all necessary powers.

b/ The appointment of the survivor as sole heir but also making provision for simultaneous deaths or thesubsequent death of the survivor without making a further will.

c/ The appointment of the testators children as sole heirs with vesting taking place at the testator's deathbut possession taking place only at the death of the survivor.

d/ Where the children obtain vesting and possession only on the death of the survivor but obtaining aright at the testator's death.

QUESTION 3.

a/ Draft the certificate to a will signed with a mark.

b/ Write notes on where the certificate by the certifying officer must appear. Give authority for youranswer. What is the position with regard to the certificate to an amendment to a will.


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3. INTESTATE SUCCESSION.

INTRODUCTION

The Estate and Succession Amendment Act no 15 of 2005, recognises three types of intestate

succession rules, Namely,

Common Law Rules,

Intestate Succession rules for Rehoboth Basters

Customary laws of certain Black Namibians

COMMON LAW RULES OF INTESTATE SUCCESSION.

After this session the student should be able to:

3.2.1 Define the following subject terminology:

a/ Ascendants.b/ Descendants.c/ Collaterals.d/ Parental.e/ Per Stirpes.f/ per Capita.g/ Representation.h/ Degree of relationship.i/ Child's Share.

3.2.2 Have a good knowledge of the various statutes constituting the Namibian laws of intestatesuccession ie.

a/ The Political Ordinance of 1580.

b/ The interpretation of 1594.c/ The Octrooi of 1661.d/ The intestate succession ordinance of 1946 (as amended).e/ Section 74 of the Children's Act 33 of 1960.

3.2.3 Be able to divide an estate in terms of the provisions of the above statutes.

.


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3.3 TERMINOLOGY.

The following terms will be encountered in intestate estates and candidates must know the meaning

thereof:

3.3.1 BLOOD RELATIONS.

a/ Ascendants include parents, grand-parents, great grand-parents, etc.

b/ Descendants include children, grandchildren, great grandchildren, etc.

c/ Collaterals those persons related to the deceased through a common parent orgrandparent such as brothers, sisters uncles, aunts, nephews, etc

d/ Collaterals of

Estates notes 2

Documents

Transcript of Estates notes 2