Law of Succession

“Most usually our virtues are only vices in disguise.” – Francois, duc de la Rochefoucauld (1613 – 1680)

The Supreme Court of Appeal in Bloemfontein has heard a case where in terms of a will money had been left to a trust with the sole purpose of providing bursaries to assist white students completing a Master’s degree in organic Chemistry at four South African universities. It was further provided in the will that if the trustees were unable to carry out the terms of the trust, the trust income had to be distributed to certain named charities.

When all of the four South African universities declined to participate in the racially discriminatory nature of the bequest, the trustees approached the Western Cape High Court in Cape Town for an order that the discriminatory word “white” be deleted from the bequest in order to make it acceptable to the universities, thereby allowing the purpose of the bursaries to be achieved.

Acting Judge derek Mitchell in the Cape Town High Court decided that the trust income should go to the charities as set out in the will. The trustees appealed this decision.

The five judges hearing the appeal observed that although the attitude of the trustees and the purpose of the bursaries were commendable, this could not be decisive in giving effect to the terms of the will. Because the will had expressly provided that should it prove impossible to give effect to the provisions of the bursary bequest, the money had to go to the charitable organisations. There was accordingly provision for the eventuality which transpired when the universities refused to accept bequests because of the discriminatory conditions. Giving the trust income to the charities named in those circumstances was to give effect to the wishes of the deceased as set out in her will.

In Re BOE Trust Ltd & Others NNO 2013 (3) SA 236 (SCA). 

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