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Unit 10 Accrual
Law of Succession (SUC211)
University of the Western Cape
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STUDY UNIT 10: ACCRUAL (THE 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
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
Whether accrual operates or not, is determined, first and foremost, 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 s 2C(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 regarding the operation of accrual is not clear from the will, 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
Three such methods of joinder exist, referred to traditionally by their Latin descriptions:
- Joinder re tantum (joinder through the thing (asset) alone)
This method of joinder is present 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, an inference (or presumption) exists at 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, the inference is in favour of accrual
- Joinder re et verbis (joinder through the thing and words)
This method of joinder is present 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
If B predeceased, is disqualified, or repudiated his/her ¼ share of the portfolio, an inference (or presumption) exists at common law that B’s share must not accrue to C because the testator, in awarding specific shares, would likely not have wanted a beneficiary to receive more that his/her allocated share
In Winstanley v Barrow 1937 AD 75 the Appellate Division decided that this inference operates unless the will or surrounding circumstances point to a different intention on the testator’s part
However, subsequent to Winstanley’s case, South African courts found consistently that joinder verbis tantum occasions an inference against the operation of accrual, and these courts paid no regard to the qualification stated in Winstanley’s case, namely that this inference operates unless the will or surrounding circumstances point to a different intention on the testator’s part
Therefore, in instances of joinder verbis tantum, the inference is not in favour of accrual unless the will or the surrounding circumstances indicate otherwise
In Lello v Dales 1971 (2) SA 330 (A) the Appellate Division ‘refocused’ the attention on the qualification regarding accrual in instances of joinder verbis tantum stated in Winstanley v Barrow when it found that:
joinder verbis tantum does not automatically and necessarily result in an inference against the operation of accrual
in each instance of joinder verbis tantum the probable intention of the testator must be determined from the scheme and terms of the will and with due regard to 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 s 2C(1) of the Wills Act (discussed in Study Unit 9) effects statutory accrual of a renounced share in favour of the testator’s surviving spouse
STUDY UNIT 10: SELF-ASSESSMENT 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
Unit 10 Accrual
Course: Law of Succession (SUC211)
University: University of the Western Cape
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