Will your will say what you mean when it comes to property?

(Article by Willie Fourie, Head of Estate and Trust Services, PSG)
Wills must be very carefully worded to avoid misunderstandings and misinterpretation, particularly when leaving property behind.

The executor of the estate, heirs to the estate and the Master of the High Court of South Africa (who must confirm the validity of the will) often have conflicting views about a will’s provisions. In these instances, they look to the executor for a decisive interpretation of any contentious clauses. Based on this interpretation, the assets within the estate are transferred to the heirs. While heirs may formally object to the executor’s interpretation, such challenges draw out and can complicate the settlement of the estate.

Avoid unclear property provisions

We recently came across a will where the interpretation of one of the clauses relating to the bequest of a residential property caused some doubt about the true intention of the estate owner.

When it comes to property, you can assign several different rights to heirs. In our example, the executor’s decision would have resulted in either a usufruct or a fideicommissum being created. A usufruct is a limited or temporary right to use and enjoy a property, but does not constitute full ownership of the property. A fideicommissum transfers property to another person on the condition that the property be passed on to someone else at a given time.

The clause in this particular will read as follows: ‘My parents shall have a life right to my residential property.’

This clause seems fairly straightforward and unambiguous at first. The question that comes to mind, however, is what exactly the testator meant by a ‘life right’. Was it a limited real right to use the property or did it mean that the parents would obtain ownership of the property?

General interpretive rules

To answer such questions, three general rules and principles apply:

The ‘plain meaning rule’ states that the contents of a will should be taken at face value, using strictly literal interpretations.

The second rule of interpretation qualifies the ‘plain meaning rule’, stating that one must consider the testator’s intention in using particular words, and not merely the meanings of the words themselves. The reason for this is that wills are often drafted by laymen, who may not understand that particular words and phrases could have a particular technical meaning.

A third important rule is to read the word or phrase that is contentious within the context of the overall will.

Reading the phrase in the context of the will

Continuing with our example above, the following clause added to the confusion: 'My brother shall inherit my property after my parents’ death. He may, however, rent out or sell the property at their request if the money is needed for their maintenance or general wellbeing.’

If the estate owner intended that a usufruct be created for her parents (without transferring ownership to them), her brother would become the legal owner of the property. He could then sell the property, but only subject to the rights of his parents’ usufruct.

In the context of the will, there are two indications that this is not what the estate owner had in mind:

The wording of the will clearly states that the brother will only inherit the property after the parents’ death.
The property may only be sold with the parents’ consent.
This clearly points to the creation of a fideicommissum, where successive rights to the property are created as opposed to the simultaneous real rights the usufruct would create. Furthermore, there is a presumption in our law in favour of a fideicommissum over a usufruct. This is because a fideicommissum is less onerous than a usufruct.

Always be clear when drafting your will

Use plain language to avoid ambiguous words and phrases so that your true intention is reflected in your will. Limit the use of legal terminology to an absolute minimum, and only to instances in which you or your will drafter have a thorough knowledge of the practical implications and legal consequences. For qualified, professional assistance in ensuring that your will accurately reflects your final wishes, consult a financial adviser who has specialist fiduciary expertise for guidance.

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