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Testamentary conditions - reply

25 September 2008

"In response to Testamentary conditions and redistribution agreements I wish to submit the following:
If a transfer of property is done subsequent to a will and redistribution agreement, the causa refers to the will and the redistribution agreement entered into between the heirs (in terms of the will):- What would have been 2 subsequent causae, have become one causa as the Deeds Registries Act allows it by virtue of section 14(1)(b)(iii). The redistribution should therefore no longer be seen as another 'transaction'.

I disagree with the conclusion reached in the said article and' hold the opinion that any asset transferred in terms of a will and redistribution agreement shall either be fully subject to a testamentary condition or fully exempt therefrom (unless a contrary intention of course appears from the will!).

Fortunately the usual exclusion' condition in a will refers to all benefits received by all beneficiaries in terms of the will. If not so, the next step will be to determine whether a particular bequest/legacy is subject to or exempt from a testamentary condition.

I believe the intention of the testator should be the determining factor as to whether any testamentary condition was intended to apply to the legatee/heir or to the asset(s) so bequeathed.

If the condition was intended to apply to the asset(s), the change of beneficiary by reason of a redistribution agreement should not affect the condition applying to the asset. The rule applies that one cannot transfer more rights than one holds (Nemo Potest rule). Each heir contributes that which he would otherwise have inherited to the 'pool of assets for distribution'. When an asset which is subject to a condition is contributed, the condition continues to limit the rights to the asset even after it has been re-distributed to a different beneficiary.

If the condition was intended to apply to the beneficiary, the assets allocated to him/her in terms of the redistribution agreement will all be subject to the condition.

In the example under discussion A dies and leaves his farm to his 3 sons subject to the condition that the inheritance shall be excluded from marital community of property. In terms of the re-distribution agreement the farm is allocated to one of the 3 sons.

(i) If they also inherit other assets in respect of which no condition applies, it shall be presumed that the asset as such should not form part of any joint estate irrespective of which son receives it;

(ii) If they also inherit other assets in respect of which the same condition applies, it shall be presumed that all assets of all heirs are excluded;

(iii) A third possibility which does not apply to this example is if they also inherit other assets and the testator has placed a condition only on the assets accruing to a particular beneficiary it shall be presumed that all assets eventually received in terms of a redistribution agreement by such heir shall be excluded from his joint estate with his/her spouse whilst no condition applies to the assets redistributed to the other beneficiaries.

Adrie van der Merwe
Fisher, Quarmby & Pfeifer

Republished with permission from SA Deeds Journal

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