A Last Will and Testament is a legal document which enshrines the last wishes of a testator and directs how his/her estate is to devolve and the assets therein to be dealt with. However, it is important to note that this discretion is not unfettered and certain provisions or bequests can be unenforceable should the testator bequeath movable or immovable property with conditions that restrict the heir and/or beneficiary from adequately dealing with the property in question.
A nude principle and/or prohibition / “nudum praeceptum” is a clause in a Last Will and Testament in which the testator bequeaths particular property to a particular person(s) but attaches a condition to the inheritance of that property in that it cannot be sold or encumbered. This results in a situation where the heir cannot freely deal with the bequeathed property and thereby renders the condition unenforceable because it cannot be registered against the property. In the case of Gumbi and Others v Master of the High Court, Johannesburg and Others (21700/2021) [2023] ZAGPJHC 862, Mr Gumbi’s will read as follows:
“I bequeath the residue of my estate to my wife, Nomvula Esther Gumbi (ID[…]), with the proviso that she survives me by a period of 7 (seven) days.
It is my wish that my fixed property shall not be sold but retained as a family home for my children.”
The Applicants in the above matter were the biological sons of the deceased who sought relief on the basis that the above clause relating to the immovable property is a nude principle and therefore, it should be rendered as pro non scripto (as though it had not been written). They argued that should the court rule in their favour, the property would be dealt with and distributed in terms of intestate succession.
However, the court held that even though the clause was indeed a nude principle, it didn’t invalidate the bequest. In terms of the principle of a nude prohibition, the rule imposed is supposed to be in the interests of the owners of the property and the freedom for them to deal with their property as they deem fit. The court quoted the learned authors Olivier, Strydom and Van den Berg explaining the nudum praeceptum as follows:
“‘A testator who attempts to deprive his fully contractually competent legatee or heir of the right to control, or to dispose of the property bequeathed to him/her, by placing the property in the hands of an administrator, or by imposing a restriction on alienation, will not normally bind the beneficiary. Such restrictions are regarded as nude and not enforceable.”
Notwithstanding the above, it is important to take note of the fact that should a testator elect to include a nude prohibition in his/her Will which would essentially render the condition unenforceable, the testator would have to make provision for and include a “gift over” provision in his/her Will for the bequest to succeed. A “gift over” provision is where the testator names a secondary heir and/or beneficiary who would inherit the property in the event of the primary heir attempting to sell or encumber the property and/or contravene the condition imposed in the Will.
Should you wish for us to assist you with drafting your last will and testament, don’t hesitate to contact our offices.
Article by Karabo Zondo
