E v Estate Late B (192/2013) [2014] ZASCA 27; [2014] 2 All SA 635 (SCA); 2014 (4) SA 1 (SCA) (28 March 2014)

E v Estate Late B (192/2013) [2014] ZASCA 27; [2014] 2 All SA 635 (SCA); 2014 (4) SA 1 (SCA) (28 March 2014)

The Supreme Court of Appeal held that, in the absence of clear indications to the contrary in the wills, the intention of the testators was for the deceased's grandchildren to inherit per stirpes under the fideicommissa. The court found that the principle of representation applies, and a grandchild is not disqualified from inheritance merely because her parent predeceased the fiduciary. The fideicommissum multiplex created by the wills entitles J[...] to inherit the share her late father would have received, and the presumption against disinheriting descendants further supports this conclusion. The appeal was upheld, and the high court's order was set aside.

Citation
[2014] ZASCA 27
Parties
Appellant: N[...] E[...] NO; Respondent: Estate Late B[...] C[...] B[...]
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2014
Case Number
192/2013
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld; high court order set aside and replaced.
Judges
Mthiyane, Petse, Willis, Saldulker, Legodi
Legal Topics
Fideicommissum, Law of Succession, Per Stirpes Inheritance, Will Interpretation
Land and Property Family and Children Fideicommissum Law of Succession Per Stirpes Inheritance Will Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

N[...] E[...] NO

Appellant

Estate Late B[...] C[...] B[...]

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether a grandchild is disqualified from inheriting under a fideicommissum when her parent predeceased the fiduciary.
  2. 2 Whether the intention of the testators in the wills was to allow inheritance per stirpes to grandchildren.
  3. 3 Whether the high court correctly interpreted the relevant provisions of the wills.

Ratio Decidendi

The Supreme Court of Appeal held that, in the absence of clear indications to the contrary in the wills, the intention of the testators was for the deceased's grandchildren to inherit per stirpes under the fideicommissa. The court found that the principle of representation applies, and a grandchild is not disqualified from inheritance merely because her parent predeceased the fiduciary. The fideicommissum multiplex created by the wills entitles J[...] to inherit the share her late father would have received, and the presumption against disinheriting descendants further supports this conclusion. The appeal was upheld, and the high court's order was set aside.

Court Disposition

Appeal upheld; high court order set aside and replaced.

Orders

  • The appeal is upheld.
  • The order of the high court is set aside.