Category Archives: Willls

Is a nude prohibition in a will enforceable?

THE LAST WILL AND TESTAMENT OF JOHN SMITH

I bequeath my farm to my son on condition that he will never be allowed to sell or encumber the farm.

This burdens the property with a condition that the heir can never sell the property. This bequest amounts to a nude prohibition or nudum praeceptum. It must be noted that such a provision cannot be registered against the property.

We often find provisions in wills that are not enforceable due to the nudum praeceptum principle. In order for the bequest to succeed the Testator should provide for a “gift-over” should the heir not adhere to the condition.

Several authors have commented on the nudum praeceptum principle:

  • Cameron, De Waal and Wunsh1;
  • Pace and van der Westhuizen2;
  • Olivier, Strydom and van den Berg3

All the authors indicate the need for the testator to include a “gift over” provision.

Accordingly, for the bequest as mentioned above to succeed, the Testator would have to include a “gift over” provision:

I bequeath my farm to my son on condition that he will never be allowed to sell or encumber the farm. Should he endeavour to sell or encumber the farm, it will devolve upon my daughter.

This transfer of ownership, should the heir act contrary to the condition imposed, is referred to as a “gift over”. A restriction on an heir who is the owner of a property does not bind the heir unless a gift over provision is included.

Pace and van der Westhuizen4:

“…Should the testator fail to appoint a further beneficiary on the condition being fulfilled, the resolutive condition is considered to be a nudum praeceptum and will be disregarded.”

The rule of nude prohibition is not itself a rule of construction but rather a rule imposed in the interests of the freedom of owners to deal with property as they choose.5 This does not mean that the bequest must be considered invalid but that the heir receives the inheritance free of the condition.

Olivier, Strydom and van den Berg6 succinctly summarises the nudum praeceptum principle:

“A testator who attempts to deprive his fully contractually competent legatee or heir of the right to control, or to dispose of the property bequeathed to him, by placing the property in the hands of an administrator, or by imposing a restriction on alienation, will not normally bind the beneficiary. Such restrictions are regarded as nude and not enforceable.

Such restrictions can be binding if provision is made for a successive beneficiary if the first taker should fail to abide by the imposed restrictions.”

It is clear from the above that all the authors indicate the need for the testator to include a “gift over” provision.

Some Testamentary Trusts created in wills can also be unenforceable if, for instance, the assets are bequeathed to children on condition that, should they be under the age of 25, the assets must be administered in Trust by trustees on their behalf. If there is no provision for a “gift over”, the children may, upon reaching majority, in terms of the nudum praeceptum principle, insist on receiving the inheritance, notwithstanding any other provisions in the will.

We are able to assist and ensure that your Will gives effect to your wishes.

Do not hesitate to contact us for expert advice.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.  Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

1 Cameron et al Honoré’s Law of trusts 154;
2  Pace and Van der Westhuizen Wills and trusts A55.
3 Olivier, Strydom and Van den Berg Trust law and practice 2-11.
4 Pace and Van der Westhuizen Wills and trusts A55.
5 Cameron et al Honoré’s Law of trusts 154;
6 Olivier, Strydom and Van den Berg Trust law and practice 2-11.

WILL, IT HOLD UP?

Is your current Will valid? Do you have your originally signed Will? Is it kept in a safe place? Do you know who your executor is? Are the provisions in your Will feasible?

All these questions are of utmost importance to ensure that your wishes are adhered to and your loved ones are able to avoid undue frustration during their time of mourning.

The Testator or Testatrix typically have good intentions when drafting certain provisos, but these often lead to unforeseen consequences.

The basic requirements for ensuring that you have a valid Will are set out in the Wills Act 7 of 1953.

Be sure to take note of the following formalities:

  1. The Testator or Testatrix must sign at the end of the Will;
  2. The Will must be signed in the presence of at least two competent witnesses, who are present at the same time and the witnesses must:
    1. Be competent persons (older than 14);
    2. Sign the Will in the presence of the Testator or Testatrix and each other;
    3. Acknowledge the signature of the Testator or Testatrix, not the content;
  3. If the Will has more than 1 page:
    1. The Testator or Testatrix needs to sign each page;
    2. The Testator or Testatrix needs to sign the last page at the end;
    3. The witnesses need to sign only the last page.
  4. If the Will is signed by the Testator or Testatrix, by the making of a mark or by some other person in the presence and by the direction of the Testator or Testatrix – additional formalities will apply.

The person who writes or witnesses a Will is disqualified from receiving any benefits from the Will. The executor, appointed trustee or guardian will also be disqualified to act should he/she or his/her spouse sign as witness.

We are able to assist and ensure that your Will gives effect to your wishes.

To draft a Will, update your Will or receive sound advice, contact the experts:

Call us: 012 361 5001 or Email us: info@delberg.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)