Nicolette Erasmus NO v Estate Late Barend Christiaan Booysen

The case concerned the interpretation of fideicommissa created in two wills executed in 1969 by Johannes Arnoldus Jacobus Booysen and Jacomina Hendrina Booysen. They bequeathed portions of the farm Grootpan to their son/grandson, Barend Christiaan Booysen, subject to successive fideicommissa in favour of his children and thereafter his grandchildren. Barend Christiaan Booysen’s son, Josua Booysen, predeceased him. Josua left one child, Jonique Booysen. After Barend’s death, the executor sought a declaratory order that the fideicommissum terminated because Josua had died before Barend, thereby excluding Jonique from inheriting. Jonique’s mother and guardian, Nicolette Erasmus NO, opposed this and contended that Jonique was entitled to inherit per stirpes under the fideicommissa.

The appeal was upheld. The High Court order was set aside and replaced with an order declaring that Jonique Booysen is entitled to inherit per stirpes under the fideicommissa; directing the executor to distribute the properties accordingly; declaring that the fideicommissum terminates with Jonique receiving full ownership; and ordering that all costs, including appeal costs, be borne by the estate of Barend Christiaan Booysen.

The case is significant for South African succession law as it clarifies that fideicommissa multiplex do not carry an implied condition of survivorship. It affirms the application of the per stirpes principle and the presumption against disinheritance of descendants, strengthening protection for grandchildren whose parents predecease grandparents.