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CH9 Accrual (ius accrescendi)
Law of Succession (273)
Universiteit Stellenbosch
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CH9: Accrual (ius accrescendi)
Accrual (or the ius accrescendi) is the right enjoyed by
testamentary beneficiaries to share proportionally in a benefit that
another beneficiary under the same will cannot or will not take.
Operation
→ accrual operates principally when a co-heir or co-legatee has predeceased, is disqualified from inheritance, repudiated the benefit, or was a beneficiary to a benefit subject to a suspensive condition that was not fulfilled
→ accrual operates in terms of the common law and also in terms of statute
When?
Whether accrual operates or not, is firstly determined by the testator’s intention:
→ if a testator made express provision for accrual, or expressly excluded the operation of accrual in his/her will, the testator’s intention regarding the operation of accrual is readily determinable → where direct substitution operates (either in terms of the testator’s stipulation in the will or statutorily in terms of S2C(2) of the Wills Act) in the event of a beneficiary’s predecease, disqualification, repudiation or the non-fulfilment of a suspensive condition, accrual shall not operate
However, where a testator’s intention is not clear from the will regarding the operation of accrual:
→ his/her probable intention must be deduced from certain indications (coniecturae) contained in the will → principal amongst these indications to be relied upon is the method of joinder of co-beneficiaries in the will, of which there are three methods of joinder: Joinder re tantum (joinder through the thing (asset) alone) ⇒ when the same benefit was left to different beneficiaries in different clauses/provisions of the will Example
A’s will stipulates: Clause 3: I leave my share portfolio to B. Clause 6: I leave my share portfolio to C. → B and C are joined re tantum in respect of the share portfolio → if both survive, are not disqualified, and neither rejects the benefit, each will receive a ½ share of the share portfolio → if B predeceased, is disqualified, or repudiated his/her ½ share of the portfolio, a presumption exists in common law that B’s share must accrue to C in order for C to receive the entire share portfolio ⇒ therefore, in instances of joinder re tantum, there is a common law rebuttable presumption in favour of accrual
Joinder re et verbis (joinder through the thing and words)
⇒ when the same benefit was left to different beneficiaries in the same clause/provision of the will without an express allocation of shares to each beneficiary Example A’s will stipulates: Clause 3: I leave my share portfolio to B and C → B and C are joined re et verbis in respect of the share portfolio → if both survive, are not disqualified, and neither rejects the benefit, each will receive a ½ share of the share portfolio → if B predeceased, is disqualified, or repudiated his/her ½ share of the portfolio, a presumption exists at common law that B’s share must accrue to C in order for C to receive the entire share portfolio (but if B was descendant of testator and had children ⇒ S2C(2) WA applicable!) ⇒ therefore, in instances of joinder re et verbis, there is a common law rebuttable presumption in favour of accrual
Joinder verbis tantum (joinder through the words alone)
⇒ when the same benefit was left to different beneficiaries in the same clause/provision of the will with an express allocation of shares to each
→ in each instance of joinder verbis tantum the probable intention of the testator must be determined from the: → scheme and terms of the will → the relevant circumstances existing at the time when the will was made → in the Lello case the court held that, despite having used joinder verbis tantum with regard to a substitution provision in respect of trust capital, the testator nevertheless intended for accrual to operate in favour of one section of the substitute beneficiaries *remember that S2C(1) of the Wills Act affects statutory accrual of a renounced share in favour of the testator’s surviving spouse *remember that S2C(2) of the Wills Act affects statutory accrual of an estate of a beneficiary who cannot or will not take the benefit who has descendants
Other indications of intention
→ the scheme of the will as a whole
→ the presumption against partial intestacy
→ the presumption that a testator intended equal benefits for his/her children
→ if a beneficiary remains an intestate heir even though he/she loses the testamentary benefit because of, ex. the fulfilment of a resolutive condition, this may indicate accrual
→ the consistency and reasonableness
→ the nature of the estate assets concerned
Accrual among other co-beneficiaries
→ in general accrual does not arise as an issue in cases where a beneficiary's right has already vested ⇒ accrual will not operate among co-fiduciaries who have already accepted their benefits
→ however, the above rules also apply as far as accrual among co-beneficiaries such as fideicommissaries, usufructuaries, and other income beneficiaries is concerned
Question Distinguish between the three methods of joinder of co-beneficiaries recognised under South African law and indicate, with reasons, whether accrual will occur in
respect of A’s share of the share portfolio in the bequest below in the event of A’s predecease of the testator:
‘I leave my Investec share portfolio to A and B in the ratio 1:3’
The second part of this question deals with accrual in an instance of joinder verbis tantum.
A brief discussion and application of Lello v Dales is required to answer this part of the question.
CH9 Accrual (ius accrescendi)
Course: Law of Succession (273)
University: Universiteit Stellenbosch
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