Rein NO v Fleischer NO and Others (472/83) [1984] ZASCA 102; 1984 (4) SA 863 (18 September 1984)

Rein NO v Fleischer NO and Others (472/83) [1984] ZASCA 102; 1984 (4) SA 863 (18 September 1984)

The Supreme Court of Appeal held that Arthur Gibaud's undertaking in the divorce consent paper did not constitute an anticipation or encumbrance of his inheritance under the testator's will. The Court reasoned that anticipation, in the context of the forfeiture clause, means obtaining a benefit from the inheritance before it is due, which did not occur here. Arthur's promise to pay future inheritance proceeds did not accelerate or advance any benefit to him prior to vesting. Furthermore, the consent paper created only a personal obligation and did not confer any real rights in the inheritance to Elizabeth or the children, and thus did not amount to an encumbrance. The Court emphasized...

Citation
[1984] ZASCA 102
Parties
Appellant: Advocate S G Rein in his capacity as Curator-ad-Litem to the minor children Catherine and Alexandra Gibaud; Respondent: Leonard Fairbank Fleischer in his capacity as Administrator of the Estate of the late Arthur Lawrence Gibaud; Respondent: Arthur Clifford Fletcher Gibaud; Respondent: Elizabeth Gray Gibaud; Respondent: Maureen Annette Butcher (born Gibaud)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 September 1984
Case Number
472/83
Procedural Posture
Civil Appeal / Appeal From Full Bench of Eastern Cape Division
Outcome
Appeal dismissed.
Judges
Kotzé, Miller, Joubert, Hoexter, Hefer
Legal Topics
Testamentary Trusts, Forfeiture Clauses, Anticipation of Inheritance, Encumbrance of Inheritance, Interpretation of Wills
Land and Property Civil Procedure Testamentary Trusts Forfeiture Clauses Anticipation of Inheritance Encumbrance of Inheritance Interpretation of Wills

Case Brief

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Parties

Advocate S G Rein in his capacity as Curator-ad-Litem to the minor children Catherine and Alexandra Gibaud

Appellant

Leonard Fairbank Fleischer in his capacity as Administrator of the Estate of the late Arthur Lawrence Gibaud

Respondent

Arthur Clifford Fletcher Gibaud

Respondent

Elizabeth Gray Gibaud

Respondent

Maureen Annette Butcher (born Gibaud)

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of Eastern Cape Division

Legal Issues

  1. 1 Whether Arthur Gibaud's undertaking in the divorce consent paper constituted an anticipation or encumbrance of his inheritance under the testator's will, thereby triggering the forfeiture clause.
  2. 2 Whether the forfeiture clause in the will applies to a contractual promise to pay future inheritance proceeds.
  3. 3 To whom the inheritance would devolve in the event of forfeiture.

Ratio Decidendi

The Supreme Court of Appeal held that Arthur Gibaud's undertaking in the divorce consent paper did not constitute an anticipation or encumbrance of his inheritance under the testator's will. The Court reasoned that anticipation, in the context of the forfeiture clause, means obtaining a benefit from the inheritance before it is due, which did not occur here. Arthur's promise to pay future inheritance proceeds did not accelerate or advance any benefit to him prior to vesting. Furthermore, the consent paper created only a personal obligation and did not confer any real rights in the inheritance to Elizabeth or the children, and thus did not amount to an encumbrance. The Court emphasized...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • The costs of appeal of the third respondent and of the curator-ad-litem are to be paid, as between attorney and client, out of the estate of the late Arthur Lawrence Gibaud.