Creation and lapsing

28 May 2015

Fideicommissa is a complex part of our law and each condition relating thereto must be studied and considered on its own merits. Hence, what follows must be taken to be a general review and guide only, and the application of the principles enumerated to any particular condition must be carefully deliberated against the wording and circumstances of imposition of that condition.

Fideicommissa are usually created by last will, and in this article it will be presumed to have been so created.

A fideicommissum is first registered in the deed of transfer conveying the subject property to the fiduciary from the testator’s estate. In actual fact such a transfer conveys ownership which is limited to a fiduciary right by the condition of fideicommissum being contained in the conditional clause of the deed, as a quotation verbatim from the testament imposing it.

If the fiduciary, as he/she is normally entitled to do, were to dispose of his/her fiduciary right or interest, then transfer of such is easily passed, the new owner of the fiduciary interest receiving transfer of the property, again subject to the conditions of the will creating the fideicommissum. Full particulars as to whose will it is and the date thereof must naturally be quoted.

Whether the rights of a fideicommissary heir are real or personal is a debatable question. It is submitted that they are personal, unless registered against the title of immovable property, in which case they become real. The Appellate Division in Registrar of Deeds (Transvaal) v Ferreira Deep Ltd 1930 AD 169 held that a certain class of personal rights are registrable and on registration become real rights. Usage and practice have certainly sanctioned the registration of fideicommissa in the titles to immovable property. Such registration is regarded as a burden on the property binding successors in title to the fiduciary right, which is the test of a real right (Ex parte Geldenhuis 1926 OPD 155). It is not merely an obligation binding on some person. The Deeds Registries Act 47 of 1937 (the Act) treats a fideicommissum on the same basis as a usufruct, see, for instance, section 69bis of the Act. The fact that the right is merely a ‘spes’ should not be allowed to cloud the issue. In Ex parte Badenhorst 1947 (2) SA 562 (O) the learned judge referred to ‘the fideicommissary whose real right in the property is registered’. So also in Barnhoorn NO v Duvenage & others 1964 (2) SA 486 (A) at 494E the learned judge refers to the first respondent’s (i.e. the fideicommissary’s) ‘real right’ as an established fact. The personal right he refers to here is the right to claim transfer of the land or possibly formal cession of the real right of the fideicommissary heir. This appears to have confused some people. In Eksteen & another v Pienaar & another 1969 10 SA 17 (O) it is also treated and considered as a real right. In Van der Merwe v Registrateur van Aktes NO 1975 (4) SA 636 (T), however, it was held to be a jus in persona and not a jus in rem and the Registrar was directed to accept an underhand waiver of rights. However, the answer is still a wanting.

A fiduciary right is registered by transferring dominium in the property to the fiduciary, and quoting the terms of the fideicommissum by which the ownership is limited in the conditional clause of the deed. It has been held that a reference to the deed or document in which the full terms of the fideicommissum are set out is sufficient (Mare v Grobler 1930 TPD 632). In other words, the rights of the fideicommissary are registered, or extinction is recorded, similarly to the manner in which a personal servitude is registered or extinguished. Strictly speaking, of course, a fideicommissum is not a servitude, but this method of registration has been in use for time in memoria.

If the fiduciary disposes of his/her fiduciary right, presuming there is no bar to his/her so doing, then he passes transfer of the property, the transfer deed reflecting the fideicommissum exactly as in his/her own title. No consent is necessary from the fideicommissary again, of course, unless there is a provision to the contrary in the terms of the fideicommissum.

If the fiduciary and the fideicommissary agree to cancel the fideicommissum, presuming they are competent to do so, then the cancellation will be done by notarial deed (see section 68(2) of the Act).

The provisions of section 68(1) of the Act can also be used where the fideicommissary heirs by underhand consent waive their right to the fideicommissum (see RCR 39 of 1972 read with RCR 29 of 1990).

Where the terms of the fideicommissum provide that the property shall pass to the fideicommissary only at the death of the fiduciary, or on the happening of some specified contingency, a renunciation by the fiduciary has the effect of vesting the inheritance in the fideicommissary, or in the fideicommissaries if there is more than one, provided all are in esse, unless there is a clear indication that the testator intended otherwise on refusal to adiate or later repudiation (see Ex parte Odendaal 1957 (2) SA 15 (O), Ex parte De Villiers en andere 1960 (1) SA 102 (T), Ex parte Lauwrens and Lauwrens 1963 (1) SA 7 (N), Ueckermann’s Estate v Ueckermann and another 1963 (1) SA 285 (N), Ex parte Lindemann and others 1963 (3) SA 735 (E), Ex parte Die Standard Bank van SA Bpk 1974 (2) SA 310 (T)). To give effect to a repudiation of a registered fideicommissum the fiduciary passes transfer of the property with a suitable recital to the fideicommissary omitting, of course, the condition relating to the fideicommissum.

Similarly as in the case of a usufruct the fiduciary and the fideicommissary heirs, if ascertained and competent, may together give transfer when they have disposed of land or any portion of it together with the fideicommissary rights, meaning here all the fideicommissary rights. No further remainder must be left (section 69bis(1)). The transferors must be described in the following manner in the preamble to the transfer deed (section 69bis(2)).

“YAEL HELLER (Identity No 110414 501 6910), (unmarried) as the fiduciary and WALTER SCOTT (Identity No 507501 4005 001) (unmarried) and ROBERT BURNS (Identity No 490909 5014 900) (unmarried), as the holders of a fideicommissary rights in the undermentioned land …”

When some of the fideicommissaries are undetermined, those in esse may validly enter into a sale provided it is made subject to the consent of the court as regards unborn fideicommissaries being obtained (Rogers NO en ‘n ander v Erasmus NO en andere 1975 (2) SA 59 (T)).

Where the fiduciary and fideicommissary have together disposed of the land, and the fiduciary has died before transfer can be registered, the executor in the fiduciary’s estate must give effect to the contract. A transfer in terms of section 69bis, by the executor and the fideicommissary heir, will be allowed.

Similarly if the executor in the fiduciary’s estate has sold the property together with the fideicommissary, section 69bis can be invoked provided the Master’s certificate under section 42(2) of the Administration of Estates Act, 66 of 1965, is lodged.

In the case of female fideicommissary heirs who are married in community of property, the provisions of section 15(2)(a) of the Matrimonial Property Act, 88 of 1984, apply, unless the community of property has been excluded in terms of the will, which created the fideicommissum.

In view of the decision in Van der Merwe v Registrateur van Aktes 1975 (4) SA 636 (T) if a fiduciary has sold property subject to a fideicommissum in respect of which the competent fideicommissary heirs have waived their rights, registrars of deeds will allow transfer of the unencumbered property by the fiduciary provided an underhand waiver of their rights by the fideicommissary heirs is lodged with the transfer.

A Registrar will raise no objection to a transfer in pursuance of a sale by the executor in the estate of a fiduciary provided that he/she is furnished with a certificate under section 42(2) of the Administration of Estates Act 66 of 1965 (see Ex parte Du Toit 1945 CPD 129).

Usually a fideicommissum proper is limited to the length of the fiduciary’s life but may, however, be limited to some other event, such as the marriage of the fiduciary. Where a fideicommissum is contingent on remarriage the fiduciary cannot normally alienate the fideicommissum property but, if the condition so reads that upon remarriage the fiduciary is to pay out to the fideicommissary heirs, then he/she is fully entitled to alienate any immovable property against which the condition may be registered. In these circumstances it was held, in other words, that there is a strong indication that the testator intended that there should be a payment of money and not a transfer of specific assets to the fideicommissaries (Ex parte Van Vuuren 1947 (2) SA 1142 (T)). Security can be demanded for the due observance of such a condition (Ex parte Gitelson 1949 (2) SA 881 (O)). The practical effect of these two decisions (and others) is that a condition which is, to all intents, identical with that in Van Vuuren’s case may be omitted from a transfer provided that there is an unrestricted award of the property in the estate account. Where such a condition is already registered against a property the deeds office will raise no objection to the owner dealing with the property if the conveyancer states that he/she is relying on the Van Vuuren case. The question of security being furnished in these circumstances is one for the executor and/or conveyancer, and not the deeds registry.

In the case of fideicommissum residui the fiduciary is entitled to alienate the property subject, of course, to any limitations in the condition as imposed, and subject to the provisions of Justinian’s 108th Novel whereby, if the fiduciary alienates more than three fourths of the fiduciary estate, security must be furnished for the one fourth to which the fideicommissary heirs are entitled (Estate Smith v Estate Follett 1942 AD 364 at 373).

‘The 108th Novel of Justinian applies to a fideicommissum residui when the will does not exclude its operation and leaves undefined what portion of the inheritance or its residue is to devolve upon the fideicommissaries’ (Ex parte Ward Smith 1968 (4) SA 165 (W)). A contrary intention of the testator prevails over the operation of the 108th Novel (Brown v Rickard 2 SC 314, Ex parte Berrange 1938 WLD 39, Ex parte Kraatz 1940 SWA 26). A fiduciary may, however, alienate the whole inheritance when he has furnished security for the restitution of the one fourth share of the estate due to the fideicommissary (Firebrace v The Master 1960 (4) SA 368 (E)). Such security cannot, however, be insisted upon where the fiduciary is a parent of the fideicommissary (Ex parte Armstrong & another 1957 (3) SA 625 (O)) and apparently, from this case, where the fiduciary is a brother or sister of the fideicommissary. The testator may specifically dispense with the furnishing of security.

An exception to the rule that one fourth must be preserved or security given applies in the case of a joint will by spouses appointing the survivor as heir subject to a fideicommissum residui (Brown v Rickard 2 SC 314).

In terms of RCR 6.15 of 1999 the question was posed whether a certificate by a conveyancer should be lodged in terms of the provision the 108th Novel of Justinianus to the effect that security has been furnished for ¼ of that to which a fideicommissary heir is entitled on transfer of property subject to a fideicommissum residui.

It was resolved that it is not the duty of the Registrar to insist on proof that security has been furnished.

Great care must be exercised by conveyancers encountering a registered fideicommissum to ensure that this has not perhaps lapsed by virtue of the provisions of sections 5 and 7 of the Immovable Property (Removal of Restrictions) Act 94 of 1965, which came into operation on 1 October 1965.

As set out in section 7, if, in terms of any will or other instrument made before 1 October 1965, immovable property

  • is vested on 1 October 1965 for the first time or thereafter becomes vested for the first time in a fiduciary (other than one without a beneficial interest, e.g. an administrator or a trustee) subject to a fideicommissum in favour of more than two successive fideicommissaries, such property when it vests in the second successive fideicommissary shall vest in him free of the fideicommissum shall so be transferred to him;

  • is already vested on 1 October 1965 in the first fideicommissary, shall when it vests thereafter in the second successive fideicommissary vest in him free of the fideicommissum and shall so be transferred to him;

  • is already vested on 1 October 1965 in the second or a later successive fideicommissary, such property shall, notwithstanding the terms of the will or instrument, at 1 October 1965 be released from such fideicommissum and shall vest in such second or later fideicommissary free of the fideicommissum or, if the property is not already registered in the second or later fideicommissary, be transferred to him free of the fideicommissum.

As set out in section 6, if, in terms of any will or other instrument made after 1 October 1965, any immovable property becomes vested in any fiduciary (other than a fiduciary without a beneficial interest, see above) subject to a fideicommissum in favour of more than two successive fideicommissaries, such property shall when it vests in the second successive fideicommissary vest in him/her free of the fideicommissum and shall be so transferred to him.

Where, in terms of sections 6 and 7 as above, any immovable property is vested in a fideicommissary free of the fideicommissum, but is registered in his favour subject to such fideicommissum the registrar of deeds must, on application by the fideicommissary accompanied by the title deed of the property together with an order of court or such other proof as the registrar may consider necessary in regard to the vesting free of the fideicommissum, endorse the title to that effect (section 9(1)).

Normally no order of court will be necessary, as the Registrar will in most cases be able to determine the facts from the will or instrument and the prior transfer deeds.

Allen West
Property Law Specialist
MacRobert Incorporated

Reader Comments: 2
Adriaan 07/06/2015:

Hi, In terms of fideicommissum after how many generations will it run out? My mother inherited the farm from my grandfather, so she is the first and I am the second generation. The reason for my question that I want to transfer the property in a Trust and want to know if the fideicommissum is still in place as I am the second fiduciary and what action do you propose to enable me to transfer the farm into a Trust? Your reply will be much appreciated. 

Allen West 10/06/2015:

A successive fideicommissum vests in the second set of fideicommissary heirs free from the fideicommissum. In your case you are only the first fideicommissary heir. If the second fideicommissary heirs are determined ( which I doubt ) and they have the contractual capacity they can either waive their right or transfer the farm together with yourself to the trust. Another option would be for you to transfer the farm to the trust, subject to the fideicommissum, but this will be a futile exercise as the farm will again have to be transferred to the second fideicommissry heir once you die.

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