3 where the testamentary mechanisms mentioned in the

This preview shows page 16 - 19 out of 23 pages.

3. Where the testamentary mechanisms mentioned in the will are unable to realise the intentions of the testator and/or would result in severe loss to the estate. 4. Where the circumstances of a case demand a departure from the will . 5. Where the testator makes dispositions but the dispositions are based on mistaken assumptions about the testator’s assets and liabilities . 16
Image of page 16

Subscribe to view the full document.

Rectification of wills : ( Rens v Esselen ) ( Botha v The Master ) Rectification takes place when a court adds, deletes or corrects something in a will because the testator made a mistake when making the will and the will does not reflect his/her intention correctly. Ways in which rectification can be effected Rectification entails correcting clerical errors or adding or deleting words that were omitted or inserted by mistake, or as a result of duress or undue influence. Rectification can only be effected by a court and in the following three ways: 1. By correcting a clerical mistake or typing error. 2. By deleting words. 3. By inserting words. Circumstances under which a court performs rectification 1. To perform rectification, the court would have to be satisfied on a balance of probabilities that a will does not reflect the true intentions of the testator. 2. Evidence would have to be presented as to what his/her intentions were. 3. Whenever a mistake is made, rectification will turn on the reliability of the evidence brought to court. Amendment of wills : 1. Deletion, addition, alteration or interlineation by the testator. 2. An amendment is distinguished from rectification, which takes place when a court adds, deletes or corrects something in a will because the testator made a mistake. CHAPTER 14 – SUCCESSION CONTRACT Pactum successorium : An agreement between two parties purporting to regulate the devolution of the estate (or part of it) of one or both of them after the death of such party. Pacta successoria : are invalid in our law, for two reasons: 17
Image of page 17
1. They restrict a person’s freedom of testation. 2. They evade the formality requirements for wills. 3. Borman en De Vos vs Potgieterusse Tabakkorporasie Bpk An exception is allowed, however, in that a pactum successorium in an antenuptial contract is valid ( Ex parte Executors Estate Everard ) Donatio mortis causa : 1. A donation aimed at the death of the donor that must comply with the formalities laid down for a will. 2. Such a donation is valid in our law because it does not restrict the donor’s freedom of testation since it may always be revoked before the donor’s death. 3. It must be executed with the same formalities as required for a will in order to be valid. CHAPTER 16 – ADMINISTRATION OF ESTATES Deceased estate : 1. Consists of the assets and liabilities of a deceased person at the time of his/her death. 2. The estate therefore consists not only of property, but also of any debts that the deceased incurred before his/her death. Residue of the estate : The residue of the estate refers to that part of the deceased’s estate which remains after the funeral expenses, all debts, taxes, administrative fees and other administration costs, maintenance claims and all legacies have been paid out.
Image of page 18

Subscribe to view the full document.

Image of page 19

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern