NOTARIAL PRACTICE I NOTARIELE PRAKTYK 11 …

NOTARIAL PRACTICE I NOTARIELE PRAKTYK

11 OCTOBER/OKTOBER 2017

ANSWERS I ANTWOORDE

PLEASE NOTE THAT THE GUIDELINE ANSWERS TO PREVIOUS PAPERS MAY NOT BE

A CORRECT REFLECTION OF THE LAW AND/OR PRACTICE AT THE MOMENT OF

READING.

NOTE TO EXAMINER: This guideline records the views of the drafters. There may be

justifiable variations in practice which are brought out in the answers.

When this happens the examiner should apply his discretion in

marking the answer.

QUESTION 1 [20)

PROTOCOL No.

NOTARIAL DEED OF SERVITUDE

BE IT HEREBY MADE KNOWN:-

THAT on

before me, TOM SWANEPOEL, Notary Public, by lawful authority duly admitted and sworn, residing and practising at DURBAN, in the PROVINCE OF KWA-ZULU NATAL, REPUBLIC OF SOUTH AFRICA, and in the presence of the subscribing witnesses, personally came and

appeared:-

SHARON JACOBS

acting under authority of the Special Powers of Attorney in favour of the Appearer granted by:

1. ANTHONY SMITH

Identity Number 570526 5031 08 5Married out of community of property(hereinafter referred to as the "FIRST PARTY")which Power of Attorney was signed at HOWICK on 2016

2. BRETT JONES

Identity Number 520923 5129 08 5unmarried(hereinafter referred to as the "SECOND PARTY")which Power of Attorney was signed at MERRIVALE on 2016

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJD' 1

3. CARL DRUMMOND

Identity Number 560228 5027 08 2Married toPETRA DRUMMONDIdentity Number 610718 0029 08 4Which marriage is governed by the Laws of France and assisted by herein as far asmay be necessary;(hereinafter referred to as the ''THIRD PARTY")which Power of Attorney was signed at PIETERMARITZBURG on 2016

which said Powers of Attorney are filed in my protocol with the Minute hereof.

AND THE SAID APPEARER DECLARED THAT:

WHEREAS the FIRST PARTY is the registered owner of the following properties, namely:-

1. Erf 17 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50(FIFTY) hectaresHeld under Deed of Transfer T 4979/2007

2. Erf 18 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50(FIFTY) hectaresHeld under Deed of Transfer T 4979/2007

3. Erf 19 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50(FIFTY) hectaresHeld under Deed of Transfer T3698/1999;

AND WHEREAS the SECOND PARTY is the registered owner of the following property, namely:-

Erf 20 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50 (FIFTY) hectares Held under Deed of Transfer T298/1995;

AND WHEREAS the THIRD PARTY is the registered owner of the following property, namely:-

Erf 21 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50 (FIFTY) hectares Held under Deed of Transfer T519/2012;

AND WHEREAS in terms of a servitude agreement concluded on the 18 July 2016 between the FIRST, SECOND and THIRD PARTIES, the PARTIES agreed to the registration of a Water Pipeline Servitude over and in favour of their respective properties for the purpose of conveying water for private purposes.

AND WHEREAS in order to secure the rights which the PARTIES have agreed to grant to/and or accept, it is necessary to incorporate the grant/acceptance thereof in a Notarial

Deed and to cause the same to be registered against the Title Deeds of the properties.

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJ'M 2

NOW, THEREFORE, THESE PRESENTS WITNESS

1. The FIRST PARTY does hereby create, give and grant, in perpetuity, to the SECOND PARTY and THIRD PARTY, their Heirs, Executors, Administrators or Assigns, a Four (4) metres wide Water Pipeline Servitude over

1. Erf 17 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50(FIFTY) hectaresHeld under Deed ofTransferT4979/2007and

2. Erf 18 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50(FIFTY) hectaresHeld under Deed ofTransferT4979/2007

which said Four (4) metre wide Water Pipeline Servitude commences from a point against the wall of the dam, which is 750 metres from the boundary HJ of erf 18 and is beaconed by the letters xy,

i) along and parallel to the Northern boundary of Erf 18 up to the boundary between Erf18 & Erf 17, as appears on Diagram SG. No. 2456/1994

ii) then for 200 (two hundred) metres along and parallel to the Northern boundary of Erf 17from the boundary GL as appears on Diagram SG. No. 2455/1994;

SUBJECT to the following conditions that-

a) the THIRD PARTY is restricted to utilizing 5 (five) kilolitres of water from the dam per day and will install a gauge on the pump to regulate this restriction;

b) the THIRD PARTY will pay to the FIRST PARTY the sum of R10 000,00 (TENTHOUSAND RAND) per annum for the above rights which sum is payable in advanceon or before the 07 day of January per year;

c) the THIRD PARTY will pay all costs for the laying out of the Water Pipeline Servitude,maintenance thereof, any transfer duty that may be levied and registration against therelevant Title Deeds.

d) any water that the SECOND PARTY may utilise from the aforesaid dam will form part ofthe quota allotted to the THIRD PARTY

2. The SECOND PARTY does hereby create, give and grant, in perpetuity, to the THIRD PARTY, his Heirs, Executors, Administrators or Assigns, a Four (4) metres wide Water Pipeline Servitude over

Erf 20 Merrivale, Registration Division FT, Province of KwaZulu-Natal In extent 50 (FIFTY) hectares

Held under Deed of Transfer T3698/1999 which said Four (4) metre wide Water Pipeline Servitude commences from a point 200 (two hundred) metres from boundary BG along and parallel to the Southern boundary of

Erf 20 across Erf 20 to Erf 21 on the boundary CF as appears on the Diagram SG.'

No.2458/1996.

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJTM 3

SUBJECT to the following conditions that-

a) the THIRD PARTY will pay to the SECOND PARTY the sum of R25 000,00 (1WENTY FIVE THOUSAND RAND) for the above rights which sum is payable on registration of the Water Pipeline Servitude in the Deeds Office;

b) the THIRD PARTY will pay all costs for the laying out of the Water Pipeline Servitude,maintenance thereof, any transfer duty that may be levied and registration against therelevant Title Deeds

c) the SECOND PARTY may utilise water, if necessary, from the Pipeline running acrossErf 20 which water will form part of the quota allotted to the THIRD PARTY at nocharge.

3.

The existing ground levels over the servitude areas shall not be altered, nor any buildings or structures erected over or in close proximity to the servitude, without the prior written approval of the PARTY who is the owner of the erf concerned.

4.

4.1 Any damage to the land, buildings or erections on any of the Erven herein caused by the negligence of any PARTY, his agents or servants when installing or maintaining the service shall be made good by and at the expense of that PARTY.

4.2 Any damage caused to existing services or any future services to be laid within the servitude as a result of any action attributable to any PARTY, his agents or servants when installing or maintaining the service shall be made good by and at the expense of that PARTY.

5.

The THIRD PARTY, his agents or servants shall have access to the servitude at all times from date of registration of this Notarial Deed.

6.

Upon registration of this Notarial Deed in the Office of the Registrar of Deeds the THIRD PARTY will pay to the:-

6.1 FIRST PARTY the sum of R10 000,00 (TEN THOUSAND RAND) per annum, a proportionate portion thereof for the year in which this Notarial Deed is registered and thereafter in advance on or before the 07 day of January each other;

6.2 SECOND PARTY the sum of R25 000,00 (TWENTY FIVE THOUSAND RAND).

7.

All costs of and incidental to the registration and preparation of this Notarial Deed of Servitude, shall be borne by the THIRD PARTY.

AND the Appearer, on behalf of the SECOND PARTY and THIRD PARTY hereby accepts the servitudes.

THUS DONE AND EXECUTED at PIETERMARITZBURG on the day, month and year aforewritten, in the presence of the undersigned witnesses and me the Notary.

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJCM 4

AS WITNESSES

1.

2.

QUESTION 2

2.1

APPEARER

QUOD ATTESTOR

NOTARY PUBLIC

[16]

Protocol No. ___ _

NOTARIAL DEED OF CESSION OF RIGHT TO EXCLUSIVE USE AREA [In terms of Section 27(4) of Act No. 95 of 1986]

BE IT HEREBY MADE KNOWN

THAT on this the day of

before me

KAVISH SINGH

of PIETERMARITZBURG in the Province of KWAZULU-NATAL, a duly admitted and sworn Notary Public, and in the presence of the undersigned witnesses, there appeared

CELIA HATTINGH

she being duly authorised hereto by:

1. SAMANTHA WILLIAMSIdentity Number: 870916 0028 08 8UnmarriedBy virtue of a Special Power of Attorney signed at Durban on 22 July 2016(herein referred to as the CEDENT)

2. CLIVE BLACKIdentity Number: 840608 5051 08 6unmarriedBy virtue of a Special Power of Attorney signed at Pietermaritzburg on 25 July 2016(herein referred to as the CESSIONARY)

which said Powers of Attorney have been exhibited to me and are filed in my Protocol with

the Minute hereof.


AND THE APPEARER DECLARED THAT:-

WHEREAS the Cedent and the Cessionary are co-owners of all units in the sectional scheme known as CLARIDGES in respect of the land and buildings situate at Clarendon, in the Msunduzi Municipality Area as well as of the land and of the following exclusive areas:

1(a). An exclusive use area described as YARD Y1 measuring 250 (TWO HUNDRED and FIFfY) square metres being as such part of the common property, comprising the land and the scheme known as CLARIDGES in respect of the land and building or buildings situate at Clarendon, in the Msunduzi Municipality Area as shown and more fully described on Sectional Plan Number SS 25/2014

Held under Notarial Deed of Cession of Exclusive Use Area No SK 211/2016S

(b). An exclusive use area described as GARAGE G1 measuring 20 (TWENTY) square metres being as such part of the common property, comprising the land and the scheme known as CLARIDGES in respect of the land and building or buildings situate at Clarendon, in the Msunduzi Municipality Area as shown and more fully described on Sectional Plan Number SS 25/2014


And

2. (a). An exclusive use area described as YARD Y2 measuring 250 (TWO HUNDRED andFIFfY) square metres being as such part of the common property, comprising the land and the scheme known as CLARIDGES in respect of the land and building or buildings situate at Clarendon, in the Msunduzi Municipality Area as shown and more fully described on Sectional Plan Number SS 25/2014


(b). An exclusive use area described as GARAGE G2 measuring 20 (TWENTY) square metres being as such part of the common property, comprising the land and the scheme known as CLARIDGES in respect of the land and building or buildings situate at Clarendon, in the Msunduzi Municipality Area as shown and more fully described on Sectional Plan Number SS 25/2014


AND WHEREAS in terms of a Deed of Partition dated 08 June 2016 (the "Agreement") the Cedent and Cessionary, agreed to partition of the said land and sectional units by assigning same according to their respective interest therein, and to exchange their undivided shares in the units and the exclusive use areas allocated thereto equally so that each may hold title of such units and exclusive use areas in severalty.

AND WHEREAS the Appearer on behalf of the Cessionary accepts the rights conferred on him in terms of the Agreement.

NOW THEREFORE the Appearer on behalf of the Cedent herby cedes in terms of Section 27 ( 4) of the Sectional Titles Act, 95 of 1986 to

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.Df'M 6

CLIVE BLACK

Identity Number: 840608 5051 08 6 unmarried

1. A one-half (1/2) share in and toAn exclusive use area described as YARD Y1 measuring 250 (TWO HUNDRED andFIFTY) square metres being as such part of the common property, comprising the landand the scheme known as CLARIDGES in respect of the land and building or buildingssituate at Clarendon, in the Msunduzi Municipality Area as shown and more fullydescribed on Sectional Plan Number SS 25/2014


AND

2. A one-half (1/2) share in and toAn exclusive use area described as GARAGE G1 measuring 20 (TWENTY) squaremetres being as such part of the common property, comprising the land and the schemeknown as CLARIDGES in respect of the land and building or buildings situate atClarendon, in the Msunduzi Municipality Area as shown and more fully described onSectional Plan Number SS 25/2014


SUBJECT thereto that a Notarial Deed of Cession of Exclusive Use Areas in respect of the Cessionary's undivided share in Yard Y2 and Garage G2 to be ceded to the Cedent will be registered simultaneously with this Cession.

NO consideration shall be payable by any one party to the other, upon the understanding that the Cessionary's one-half (1/2) undivided share in the remaining exclusive use area, which is of equal value, shall simultaneously with this cession be ceded to the Cedent in exchange for the rights hereby granted.

AND THAT this deed shall be registered in the Office of the Registrar of Deeds at - PIETERMARITZBURG and all costs of and incidental to its preparation, execution and

registration, including any transfer duty shall be paid by the Cessionary.

THUS DONE AND EXECUTED at PIETERMARITZBURG on the day, month and yearaforewritten, in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.

QUOD ATTESTOR

NOTARY PUBLIC

q.q. CEDENT

q.q. CESSIONARY

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DFM

(12)

7

2.2 (1) - Documents to be lodged:a) Notarial Cession of Exclusive Use Areab) Notarial Deed of Cession of Exclusive Use Area No SK 211/2016Sc) Transfer Duty Receipt /Exemption Certificate

(2) - Documents retained in the Protocola) Copy of Notarial Cession of Exclusive Use Area - Minuteb) Special Powers of Attorneyc) Certified copy of Death Certificate of Prince Williams

QUESTION 3

3.1 Protocol No. __ ------'/2016

STATEMENT IN TERMS OF SECTION 6 (1) OF ACT 88 OF 1984

(4)

[10]

BE IT HEREBY MADE KNOVVN that on this the 31st of July 2016, before me, JANE SMITH, Notary, duly sworn and admitted , practicing at Cape Town in the Province of the Western Cape, and in the presence of the subscribed witnesses, personally came and appeared

1. DAVID JONESIdentity Number 740127 5126 00 8Married out of community of property

And

2. TINA JONESIdentity Number 751114 0037 00 8Married out of community of property

And the appearers declared that-

- 1. On 15 February 2016 they executed an antenuptial contract before the Notary Public,Gerrie Nel of Johannesburg.

2. Subsequent thereto, on 16 March 2016 they concluded a marriage with each other inJohannesburg.

3. The said antenuptial contract was registered in the deeds registry in Johannesburg on5 April 2016 under H467/2016.

4. As their marriage is subject to the accrual system, in accordance with the provisions ofsection 6 (1) of the Matrimonial Property Act 88 of 1984 they hereby declare that the netvalue of their respective estate at the commencement of their marriage was:

4.1 That of the said DAVID JONES: R3 000 000.00 4.2 That of the said TINA JONES: R100 000.00

Signed at Cape Town on the day, month and year aforementioned in the presence of the undersigned witnesses.

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJJ:M 8

As witnesses:

1. --------

2._______ _

THE HUSBAND

THE WIFE

QUOD ATTESTOR

NOTARY

This statement must be executed before the notary within six months from date of marriage. In this instance the parties have one (1) month to execute the statement.

(6)

3.2 If the statement is not executed timeously then the commencement value of the parties' estates is deemed to be NIL. (2)

3.3 The original executed Section 6 statement must be sent to the Notary in Johannesburg who executed the antenuptial contract. (2)

QUESTION 4 [41

4.1 A Civil Union is the voluntary union of two persons who are both 18 years or older and which union is solemnised and registered by either a marriage or a civil partnership, to the exclusion, while it lasts, of all others. The Civil Union is solemnised and registered in terms of the Civil Union Act 17 of 2006. (2)

4.2 No impact. The provisions of the Matrimonial Property Act are applicable in exactly the same manner. (2)

QUESTION 5 [20]

5.1 The power of assumption allows an executor the opportunity to assume, or take on, another person to assist the appointed executor as executor in winding up the estate. The power is not exercisable as a matter of course, but only if so determined in the will of the deceased. (2)

5.2 The executor must return the original letters of appointment to the Master, together with a deed of assumption, and acceptance of trust as executor by the executor to be assumed. Unless the will specifically states that any assumed executor need not furnish security, a bond of security also needs to be lodged. (A parent, child or

5.3

surviving spouse is exempted - Section 23(2)(a) of the Estates Act.) (2)

a) A fixed amount as determined or directed by the deceased in his/her will; orb) 3,5% of the gross assetsc) 6% of income after death

Should the Executor be a VAT-vendor, VAT should be added to these amounts.

5.4 20% of the value of the estate. (2) (1)

LEGAL EDUCATION AND DEVELOPMENT [L.EA.DJCM 9

5.5 R3,5m estate duty rebate is allowed. Any portion hereof not utilised may be rolled over to the estate of the surviving spouse. A married couple is thus able to utilise a R7m total rebate. (2)

5.6 20% on the market value of the donation. R100 000.00 per annum is exempted (2)

5.7 A Trust does not enjoy the primary residence rebate. The time-apportionment method will however apply: the property was held for 20 years, 5 of which were before the introduction of capital gains tax. 75% of the gain will therefore be taxable. The effective rate of cgt for trusts in 2017 is 32,8% (80% of 41 %). No provision is made for the time value of money (CPI). The total gain is therefore R2m x 75% x 32,8%. Using the conduit principle and allocating the gain to natural person beneficiaries of the Trust, the cgt may be reduced to an effective rate of 16,4% (40% x 41%). (4)

5.8 George's son is a connected person who will not be using the vehicle to make taxable supplies, therefore Section 10(4) applies and the estate is liable to amount for VAT on the open market value of the vehicle (R25 000 x 14/114).

The employees of Zeus Catering are not connected persons in relation to George and therefore the general valuation rule applies. Consequently the value of the supplies is NIL as the employees are not required to pay any consideration to acquire the assets. Output tax on these assets is therefore NIL.

George's private assets did not form part of his enterprise and the distribution to his spouse is therefore not subject to VAT. (5)

QUESTION 6 [20]

NOTE TO EXAMINER: IT IS SUGGESTED THAT THE MOST PRACTICAL WAY TO

ATTAIN THE PROTECTIONS REQUIRED BY THE TESTATOR AND CONSIDER/NG ACT

70ll0 WOULD BE BY WAY OF A TRUST MORTIS CAUSA. THERE MAY OF COURSE BE

OTHER OPTIONS.

LAST WILL

This is the last Will of me, JOHN MADIBA, Identity number ----, wherein I determine as follows:

1. REVOCATIONI hereby revoke all previous wills made by me.

2. NOMINATION OF EXECUTORI nominate and appoint my eldest son Joseph to be the executor of my estate with theright of assumption. I direct that my executor will not be required to furnish security tothe Master of the High Court.

3. ENTIRE ESTATE IN TRUST TO TRUSTEE

As soon as possible following the winding-up of my estate to the satisfac�ion of the

Master of the High Court my entire estate shall devolve upon my trustees in trust for

LEGAL EDUCATION AND DEVELOPMENT [LE.A.DJ™ 10

the benefit of my two sons Joseph and Moses, and after their death, for the benefit of their issue per stirpes subject to the terms, conditions and powers more fully set out hereafter.

4. DEFINITIONSIt is my intention to give my trustees powers in the widest sense and, therefore, allwords, and sentences contained herein should be so interpreted. In this will, unlessthe context otherwise indicates, the following words shall have the following meanings:4.1 'capital' my entire estate; 4.2 'heirs' will also mean beneficiaries and are my two sons and their issue per

stirpes; 4.3 'maintenance' that amount which an heir requires to maintain a reasonable

standard of living, taking into consideration the standard of living which they were accustomed to and shall include payment of moneys by my trustees to partially or fully covers his costs of living, costs of reasonable pleasures, reasonable expenses, vacations, costs of education (tertiary education included), travelling, medical, dental and similar services, general welfare, accommodation, motor vehicles, as well as assistance to establish him in business or to permit him to qualify in a profession or occupation or to maintain him in marriage;

4.4 'net income' the balance of the income out of my trust after my trustees have been paid and all other expenses in regard to our trust have been covered;

4.5 'trust' the trust created herein and administered by my trustees and to be known as the John MadibaTestamentary Trust.

4.6 Words indicative of the male gender include the female gender and words indicative of the singular case include the plural case and vice versa.

5. NOMINATION OF TRUSTEEI hereby nominate and appoint my son Joseph together with my attorney JacksonNkadimeng as the trustees of the John Madiba Testamentary Trust.

6. WAIVER OF SECURITYNo person appointed as trustee of my trust shall be required to furnish to the Master ofthe High Court or to any other body or person any security whether under the TrustProperty Control Act 57 of 1988, or any law for the time being in force, for the duefulfilment by him of those duties required in his office as trustee and the Master of theHigh Court is requested to dispense with such security.

7. LOSS OF OFFICEAny trustee shall immediately vacate his office as such if:7.1 His estate is sequestrated or he files an application for the surrender of his

estate or an application for an administration order or if he commits an act of insolvency as defined in the Insolvency Act for the time being in force, or if he makes any arrangements or composition with his creditors generally; or

7.2 He is found lunatic or becomes of unsound mind; nor 7.3 He is declared incapable of managing his own affairs or of acting as trustee; or 7.4 He gives notice in writing to the remaining trustee that he wishes to retire; or 7.5 He is convicted of any crime involving dishonesty; or 7.6 If he shall become disqualified in terms of the Companies Act as amended from

time to time to act as a director of a company.

LEGAL EDUCATION AND DEVELOPMENT [L.EA.DJ™ 11

8. POWERS OF TRUSTEEMy trustees shall have all powers and authority to administer my trust and without inany way limiting or detracting from the aforementioned general powers and authorityor in any way limiting or detracting from any further or other rights, powers andprivileges given to my trustees hereunder, I further direct that in the administration ofmy trustees shall also have the following additional powers and authority which he/shemay exercise entirely at his/her discretion:

8.1 to preserve and maintain assets 8.2 to retain existing investments; to realize and reinvest 8.3 to invest and reinvest 8.4 to improve and develop immovable property 8.5 to carry on any business 8.6 to borrow 8.7 to lend 8.8 to vote 8.9 to grant credit 8.10 to decide what moneys represent capital and what income 8.11 to decide whether expenditure should fail on capital or income 8.12 to pay heirs in cash or kind 8.13 to defer the payment of inheritances 8.14 to grant powers of attorney 8.15 to guarantee debts 8.16 to permit occupation or use of trust property 8.17 to open and operate a banking account 8.18 to employ representatives 8.19 to engage in legal proceedings

9. NON-LIABILITY FOR LOSSNo trustee will be liable for any loss sustained by my trust or my heirs from whatsoevercause arising save and except any loss as will arise from the dishonesty of suchtrustee(s) subject, however, to the provisions of section 9 of the Trust Property ControlAct 57 of 1988.

1 D. INDEMNITY My trustees will be indemnified by my trust from all claims of whatsoever nature that may be made upon him or her arising out of the exercise or the purported exercise of any of the powers conferred upon them herein, or arising out of or in connection with the administration of our trust subject, however, to the provisions of section 9 of the Trust Property Control act 57 of 1988.

11. TRUSTEE' REMUNERATIONMy trustee shall be entitled to charge and be paid out of my trust all reasonableexpenses incurred as well as the normal fees of office for trustees as permitted orprescribed by law and in the event of no fees being so prescribed the remunerationwill be (7,5%) on all income received by the trust and (1 %) on all payments of capitalmade to the beneficiaries of the trust.

12.RECORDS AND ACCOUNTS

My trustee shall cause to be kept proper records and books of account reflecting trulyand correctly his or her administration of our trust. A statement of account and balancesheet of the assets and liabilities and the income and expenditure of the trusts

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.DJIM 12

hereinbefore referred to shall be prepared in respect of each financial year (and audited by an accredited firm of auditors).

13.OVERRIDING PROVISION

13.1 My trustees shall, after the death of my sons and when the youngest of theirissue attains the age of twenty five (25) years (whichever date is the later), terminate the trust and pay to the heirs their share of the trust subject, however, to the provisions contained in sub-paragraphs 13.2 and 13.3 hereunder.

13.2 I direct that the assets forming the trust and any income that may have accrued thereto shall be apportioned between my heirs in equal shares, and shall be paid to or made over to my heirs as provided for herein. Should any heir have died without leaving issue prior to the date upon which that heir has received his share, the share of such heir shall be apportioned between the surviving heirs, but the share of any such heir who leaves issue shall be apportioned between such issue per stirpes and the share of any such issue per stirpes, under the age of twenty five (25) years shall remain vested in my trustee and administered as herein provided for in the interest and for the benefit of such issue. Upon such issue attaining the age of twenty five (25) years the share of such issue shall be paid to or made over to such issue by my trustee.

13.3 In the event of: 13.3.1 an heir's estate being declared insolvent, or 13.3.2 him committing an act of insolvency as defined in the Insolvency Act, then applicable in South Africa, or 13.3.3 my trusteed being of the opinion that he is incapable of managing his own affairs, such heir shall forfeit his right to receive his inheritance and my trustees shall in their absolute discretion, during such heir's lifetime, retain the inheritance in trust and utilize same for the maintenance of such heir and his dependants for as long a period as he or she considers necessary and on his death, such inheritance shall devolve on his intestate heirs.

14.EXCLUSION FROM COMMUNITY ESTATE

The rights to any amount paid or accruing to any beneficiary, shall not fall into or formpart of the joint estate of that beneficiary and his/her spouse, nor shall the husband ofa female beneficiary have any control over any rights or amounts paid or accruing toher. These rights and amounts shall be excluded from any accrual in terms of theMatrimonial Property Act 88 of 1984.

Thus signed and executed by me in the presence of the undersigned witnesses, whoin the presence of myself, appended their signatures to this my will.

WITNESSES:

1.

2.

Testator

QUESTION 7 [10]

7.1.1 Non Causa debiti,·

This exception is usually renounced in bonds that are not a loan of money. The renunciation of this exception places the onus of proof on the mortgagor to prove that no debt exists. (2)

LEGAL EDUCATION AND DEVELOPMENT [L.E.A.D]'M 13

7 .1.2 Beneficium ordinis seu excussionis; This exception enables a surety to compel the mortgagee to proceed against the principal debtor first before he can proceed against the surety. This renunciation enables the mortgagee to proceed against the surety before excussing the principal debtor. (2)

7 .1.3 Beneficium divisionis. This exception enables co-sureties to insist that their liability be apportioned amongst themselves and that neither can be sued for more than their pro-rata share. The renunciation of this exception enables the mortgagee to sue one of the sureties without reference to the other sureties and to claim the whole amount of the debt from the one. (2)

7.2.1 This is a pactum commissorium which is invalid as being unduly oppressive and should not be included in the bond. (2)

7.2.2 This is known as parate executie which, although invalid in the case of immovable property, is permissible in the case of movables in possession of the bondholder, provided the rights of the debtor are not prejudiced. It would be advisable to include a provision in the bond entitling the bondholder to take possession of the bonded assets in the event of default. (2)

TOTAL: [100]
