Short notes on:
THE VALIDITY OF A FIDEICOMMISSUM CONDITION IN A
WILL:
If a testator provides in his will that for example his farm should go to his son B, on condition that
the farm goes to B’s son C, upon B’s death. If B should pass away, the farm has to be transferred
to C in terms of the fideicommissum condition and not according to B’s own will. In this instance the
testator creates a fideicommissum with regards to his farm. B is known as the bare dominimum
owner and C is known as the fiduciary.
“A fideicommissum, when created in a will, is another form of testamentary substitution whereby a
benefit, usually fixed property, is bequeathed to one person (the fiduciary) subject to the condition
that on the occurrence of a specified event or the fulfilment of a specified condition, usually the death
of the fiduciary, that inheritance or part thereof is to pass on to another person or class of persons
(the fideicommissary)”1. The intention of the testator to create a fideicommissum has to be clear and
the fideicommissum has to comply with the legal requirements in order to make the condition valid.
The fideicommissum may also be created by implication in instances where it has not been created
expressly.
The legal requirements for a valid fideicommissum:
1. There has to be a clear intention to create a fideicommissum. In this instance the testator has
to unequivocally express a clear intention to bequeath the property as such. The words has
to be in the imperative form and should not be vague;
2. An effective “gift over” in favour of a specified fideicommissary has to take place. This means
that the property which is subjected to the fideicommissary condition has to on fulfilment
thereof devolve on the fideicommissary;
1
C P Joubert 1953 THRHR 245
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3. The encumbered property, the fiduciary and the fideicommissary has to be adequately
described in the will;
4. The fideicommissary has to have legal capacity to the benefit;
5. The fideicommissay condition has to be valid, it should not be vague and uncertain or
impossible to fulfil.
2
In the case of Nicolette Erasmus NO v Estate Late Booysen, the case concerned the interpretation
of two separate but related wills of two different persons. These two persons were the greatgrandfather and the great-great grandmother of a minor child, Jonique. The great-grandfather was
the father of Jonique’s parental grandfather whereas the great-great grandmother was the mother
of that great-grandfather. Jonique’s father had predeceased his father, the late Barend Christiaan
Booysen (the deceased). The deceased was a fiduciary of a fideicommissa which was established
by the respective wills of his father (Janique’s great-grandfather) and grandmother (Jonique’s greatgreat grandmother).
The question which was before both the High Court and the Supreme Court of Appeal was whether
Jonique could inherit the farm, as a fideicommissory, when her father had predeceased the
deceased.
High Court:
The High Court held that the fideicommissum established in terms of the wills terminated upon the
death of Jonique’s father and that Jonique was not entitled to inherit in terms of the aforementioned
wills.
Supreme Court of Appeal:
The SCA ruled that the principle of representation in our law of succession entails that, where an
ancestor leaves descendants, a presumption arises that the descendants should inherit per stirpes.
This principle has the natural consequences that, in our law, in circumstances where a grandchild’s
parents predeceased the grandchild’s grandparents, the grandchild will ordinarily inherit from his or
her grandparents. A grandchild is not disqualified from inheritance merely as a result of the fact that
one or both of the grandchild’s parents predeceased the grandparents.
2
Nicolette Erasmus NO v Estate Late Booysen (192/13) (2014) ZASCA 27 (28 March 2014)
© Meegan Henkeman | Schoeman Tshaka Attorneys 2014
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The clear intention of both the testators was that, without distinction among them, the grandchildren
of the deceased should inherit the respective fideicommissa. As such Jonique was entitled to inherit
thereunder, accordingly per stirpes.
Conclusion:
When creating a fideicommissary condition in a will, it is important to adhere to the above
requirements in order for the condition to be fulfilled. One has to express a clear intention to create
such a condition and the condition has to be valid. People often confuse a fideicommissary condition
with a usufruct. A usufruct enables the holder thereof to use certain property which belongs to
someone else and to enjoy the fruits thereof subject to the condition that the substance of the
property is maintained.
© Meegan Henkeman | Schoeman Tshaka Attorneys 2014
t +27 (0) 21 425 5604 f +27 (0) 21 421 8913 e [email protected] w www.schoemanlaw.co.za