Booysen v Erasmus NO (29658/2012) [2013] ZAGPPHC 41 (12 February 2013)

Booysen v Erasmus NO (29658/2012) [2013] ZAGPPHC 41 (12 February 2013)

The court held that the fideicommissum created in the wills of the late Johannes Arnoldus Jacobus Booysen and Jacomina Hendrina Booysen was subject to the common law rule that the right of a fideicommissary vests only upon the death of the fiduciary. Since Josua Booysen, the first fideicommissary, died before the fiduciary (Barend Christiaan Booysen), no rights vested in him, and thus his daughter Jonique Booysen could not inherit under the fideicommissum. The testators' intention, as evidenced by the wording of the wills, did not provide for substitution in the event of a predeceased fideicommissary. The court found no distinction in law between a fideicommissum unicum and a...

Citation
[2013] ZAGPPHC 41
Parties
Applicant: Boedel wyle Barend Christiaan Booysen; Respondent: Nicolette Erasmus N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
12 February 2013
Case Number
29658/2012
Procedural Posture
Civil Application / Return Date of Rule Nisi; Opposed Application and Counter Application
Outcome
The respondent's counter-application is dismissed. The rule nisi is confirmed as amended.
Judges
H J de Vos
Legal Topics
Fideicommissum, Testamentary Succession, Conditional Bequest, Vesting of Rights, Survivorship Condition
Land and Property Family and Children Fideicommissum Testamentary Succession Conditional Bequest Vesting of Rights Survivorship Condition

Case Brief

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Parties

Boedel wyle Barend Christiaan Booysen

Applicant

Nicolette Erasmus N.O.

Respondent

Procedural Posture

Civil Application / Return Date of Rule Nisi; Opposed Application and Counter Application

Legal Issues

  1. 1 Whether the fideicommissum created in the wills of the late Johannes Arnoldus Jacobus Booysen and Jacomina Hendrina Booysen entitled Jonique Booysen to inherit as the child of Josua Booysen, who predeceased the fiduciary.
  2. 2 Whether the rights of a fideicommissary who dies before the fiduciary vests in their heirs.
  3. 3 Whether the testators intended for substitution to occur in the event of a predeceased fideicommissary.

Ratio Decidendi

The court held that the fideicommissum created in the wills of the late Johannes Arnoldus Jacobus Booysen and Jacomina Hendrina Booysen was subject to the common law rule that the right of a fideicommissary vests only upon the death of the fiduciary. Since Josua Booysen, the first fideicommissary, died before the fiduciary (Barend Christiaan Booysen), no rights vested in him, and thus his daughter Jonique Booysen could not inherit under the fideicommissum. The testators' intention, as evidenced by the wording of the wills, did not provide for substitution in the event of a predeceased fideicommissary. The court found no distinction in law between a fideicommissum unicum and a...

Court Disposition

The respondent's counter-application is dismissed. The rule nisi is confirmed as amended.

Orders

  • The respondent's counter-application is dismissed.
  • The rule nisi marked XYZ and dated 6 July 2012 is confirmed as amended by paragraph 5 of the court order marked 'X' dated 17 August 2012.