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9 June 2011

Where a testator bequeaths immovable property to heirs which, for some or other valid reason, cannot be put into effect, such immovable property will devolve on the residuary heirs.

In the case of Ex parte Adams NO 1964 (2) SA 135 C the testator had bequeathed certain houses to certain legatees, but transfer to each legatee was not possible as the land upon which they stood was not subdivided, but was held as one undivided piece and subdivision could not take place in a manner which would permit of each house being situated on a divided piece of land.

In terms of our common law, where a legacy fails it falls into the residuary estate for the benefit of the residuary heirs (see Morse v Estate Edden 1913 CPD 567 and Ex parte Estate Kerr 1942 NPD 412.

Furthermore the normal rule as expressed by Steyn in Wills, 2nd Edition on page 50 is that –

If, however, the words employed are unmeaning and uncertain in themselves, or illegal, or impossible of being given effect to, them they must be regarded as though they had never been written at all.

The above will also apply where a testator bequeaths certain portions of his agricultural land to different heirs, without same being subdivided (i.e. diagrams already framed) and the provisions of the Subdivision of Agricultural Land Act, Act 70 of 1970, being complied with.

A question begging an answer is whether, given the above, the legatees may enter into a redistribution agreement with regard to such inheritance.

From the wording of section 14(1)(b)(iii) of the Deeds Registries Act 47 of 1937 it is clear that a redistribution agreement can be in respect of the whole or any portion of the “assets of an estate”.

It is thus permissible for certain heirs acquiring specific property from an estate to redistribute such property without reference to other heirs, and the conference of registrars regarded this as giving effect to the letter and spirit of section 14 of Act 47 of 1937 (RCR 2 of 1951).

To enter into a redistribution agreement, the heirs must have vested rights, and not merely a spes (see Leach v Champion Estates Ltd 1956 (3) SA 574 (C)).

To determine whether the redistribution agreement is valid and binding the following test can be made use of: (See Lubbe v Commissioner for Inland Revenue 1962 (2) SA 503 (O)).

The following question should be posed to determine the answer to this question viz;

If the redistribution agreement is ignored, will there, irrespective of the movable assets which are possibly introduced, be an allocation of the relevant assets being distributed in the agreement to the contracting party?

If the question is answered in the affirmative, the redistribution agreement will be forthcoming. Each redistribution agreement will have to be tested as indicated above, to determine whether it is in fact valid, in that the heirs have vested rights.

CONCLUSION
Should a legacy not be capable of being put into effect, such legacy will devolve in the residuary heirs and a redistribution agreement is not the solution to the problem.

Allen West
Deeds Training
Pretoria

 

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