Nicolette Erasmus NO v Estate Late Barend Christiaan Booysen

Johannes Arnoldus Jacobus Booysen (the first testator) and Jacomina Hendrina Booysen (the testatrix/second testator) created fideicommissa in their respective wills dated 20 and 26 March 1969, bequeathing portions of the farm Grootpan to Barend Christiaan Booysen (the deceased), with provisions that upon his death, the property would pass to his children, and thereafter to his grandchildren. The deceased's son, Josua Booysen, predeceased him, dying on 26 August 2001. The deceased died on 22 February 2009. Josua left behind one child, Jonique Booysen (born 13 January 2000), whose mother was the appellant Nicolette Erasmus. The executor of the deceased's estate, Johannes Arnoldus Booysen (the deceased's surviving son), brought an application seeking a declaration that the fideicommissum in favor of Josua terminated upon his death, and that Jonique was not entitled to inherit. Nicolette Erasmus, as Jonique's mother and natural guardian, opposed this application and brought a counter-application asserting Jonique's right to inherit per stirpes.

• Whether a grandchild can inherit under a fideicommissum multiplex where the grandchild's parent (who would have been a fideicommissary) predeceased the fiduciary
• Whether the implied condition of survivorship in fideicommissa applies to a fideicommissum multiplex
• Whether the grandchild inherits per capita or per stirpes
• The proper interpretation of wills creating fideicommissa over multiple generations

The appeal was upheld. The High Court's order was set aside and replaced with an order declaring that: (i) Jonique Booysen is entitled to inherit under the fideicommissa as her late father would have inherited had he survived; (ii) The executor must distribute the properties to Johannes Arnoldus Jacobus Booysen and Jonique Booysen as fideicommissaries, with Jonique inheriting per stirpes; (iii) The fideicommissa will terminate in respect of Jonique's bequest such that she receives unrestricted ownership; (iv) Costs of the application, counter-application, and curator ad litem to be borne by the estate of the deceased. The pending rule nisi was discharged, and the costs of the appeal were ordered to be borne by the estate of the deceased.

In a fideicommissum multiplex (where property is bequeathed to successive fideicommissaries over multiple generations), the implied condition of survivorship that ordinarily applies to fideicommissa does not operate to exclude a grandchild from inheriting where the grandchild's parent (who would have been a fideicommissary) predeceased the fiduciary. Instead, the death of the intermediate fideicommissary prior to vesting results in the acceleration of the interest of the substitute (the grandchild). In the absence of clear indications to the contrary in a will, grandchildren inherit per stirpes (by stems/family branches) rather than per capita (as individuals in equal shares), in accordance with the principle of representation in South African succession law. A grandchild is not disqualified from inheritance as a result of the fact that one or both of the grandchild's parents predeceased the grandparents.

The court noted (with approval from counsel for the respondent) that the wills in question had obviously been drawn with the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 in mind, and that the clear intention of the testators was to pass down the farm Grootpan to as many generations as the Act would allow (limited to two successive fideicommissaries). The court also observed that effect must be given to the intention of a testator expressed by creating a fideicommissum multiplex. The judgment reinforced the presumption in South African law against a testator having the intention to disinherit descendants, which strengthened Jonique's claim to inheritance.

This case is significant in South African law of succession as it clarifies an important exception to the general rule regarding survivorship conditions in fideicommissa. It establishes that in a fideicommissum multiplex (where property is to pass through multiple generations), a grandchild is not disqualified from inheritance merely because their parent predeceased the fiduciary. The judgment reinforces the principle of representation in succession law and the presumption that descendants inherit per stirpes unless a testator clearly indicates otherwise. It demonstrates the court's commitment to giving effect to testators' intentions to benefit multiple generations of descendants, and affirms that the principle against disinheritance of descendants applies in the context of fideicommissa. The case provides important guidance on the interpretation of multi-generational testamentary dispositions and the application of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965.