Kohlberg v Burnett and Others (422/84) [1986] ZASCA 32; [1986] 2 All SA 283 (A) (26 March 1986)

Kohlberg v Burnett and Others (422/84) [1986] ZASCA 32; [1986] 2 All SA 283 (A) (26 March 1986)

The court held that clause 3 of the will constitutes a valid bequest to the trustees of the two named trusts, who are legally entitled to receive and administer the assets for the benefit of the trust beneficiaries. The fact that the trusts are not legal persons does not invalidate the bequest, as trustees act in their representative capacity. The beneficiaries under the trusts derive their rights from the trust deeds, not directly from the will. The will does not need to set out the terms and conditions of the trusts or identify the beneficiaries, provided the trustees are properly appointed and the trusts exist. The appellant's argument that the disposition is invalid and triggers...

Citation
[1986] ZASCA 32
Parties
Appellant: Peter Carl Kohlberg; Respondent: Harold Moulsdale Burnett, NO; Respondent: John David Enraght-Moony; Respondent: Joan Hildegarde Enraght-Moony; Respondent: Lorimer Eric Leach (curator-ad-litem); Respondent: Alice Mary Kohlberg; Respondent: Sandra Joan Shillington; Respondent: John Peter Enraght-Moony; Respondent: Patricia Anne Enraght-Moony
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 March 1986
Case Number
422/84
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Division Judgment
Outcome
Appeal dismissed with costs, including costs of the curator ad litem and costs of the application for leave to appeal. Only unrecoverable costs may be paid out of the estate.
Judges
Rabie, Botha, Van Heerden, Jacobs, Galgut
Legal Topics
Testamentary Disposition, Trust Bequest, Incorporation by Reference, Intestate Succession
Civil Procedure Family and Children Testamentary Disposition Trust Bequest Incorporation by Reference Intestate Succession

Case Brief

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Parties

Peter Carl Kohlberg

Appellant

Harold Moulsdale Burnett, NO

Respondent

John David Enraght-Moony

Respondent

Joan Hildegarde Enraght-Moony

Respondent

Lorimer Eric Leach (curator-ad-litem)

Respondent

Alice Mary Kohlberg

Respondent

Sandra Joan Shillington

Respondent

John Peter Enraght-Moony

Respondent

Patricia Anne Enraght-Moony

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Division Judgment

Legal Issues

  1. 1 Whether clause 3 of the will, bequeathing the residue of the estate to two trusts, constitutes a valid testamentary disposition.
  2. 2 Whether the terms and conditions of the trusts must be incorporated into the will or executed in accordance with the Wills Act for the bequest to be valid.
  3. 3 Whether failure to identify beneficiaries in the will renders the disposition invalid and triggers intestate succession.

Ratio Decidendi

The court held that clause 3 of the will constitutes a valid bequest to the trustees of the two named trusts, who are legally entitled to receive and administer the assets for the benefit of the trust beneficiaries. The fact that the trusts are not legal persons does not invalidate the bequest, as trustees act in their representative capacity. The beneficiaries under the trusts derive their rights from the trust deeds, not directly from the will. The will does not need to set out the terms and conditions of the trusts or identify the beneficiaries, provided the trustees are properly appointed and the trusts exist. The appellant's argument that the disposition is invalid and triggers...

Court Disposition

Appeal dismissed with costs, including costs of the curator ad litem and costs of the application for leave to appeal. Only unrecoverable costs may be paid out of the estate.

Orders

  • The appeal is dismissed with costs, including the costs of the curator ad litem and the costs of the application for leave to appeal.
  • Only such costs as cannot be recovered from the appellant may be paid out of the estate of the late Herbert Kohlberg.