Fideicommissums

A. Exclusion from community
Where property is bequeathed or donated to a person married in community of property subject to a fideicommissum, such condition of fideicommissum excludes community of property (see Barnett v Rudman 1934 AD 203). Thus, where property is transferred to a fiduciary who is married in community of property, the vesting clause of the deed should be worded as follows:

"Noel Kriel
Identity number: 590106 5051 083
Married in community of property to May Kriel"

The condition of fideicommissum must be inserted in the conditional clause of the deed and referred to in the causa.

If the fideicommissary heirs die before the fiduciary heir, the fideicommissum will lapse and the property will form part of the joint estate.
In the Registrars Conference Resolution 17 of 1974 it was resolved that a condition constituting a fideicommissum may be accorded the status of a personal servitude and the provisions of section 68(1) Act 47 of 1937 may be applied where the fideicommissum lapses.

B. Regulation 61(2) of the Deeds Registries Act 47 of 1937 and underhand waiver of their rights by fideicommissaries
Regulation 61(2) of the Deeds Registries Act 47 of 1937 provides, inter alia, that a Registrar of Deeds may accept for registration a unilateral notarial deed of cancellation of fideicommissum by the fideicommissary heirs

In view of the decision in Van der Merwe v Registrateur van Aktes 1975 (4) SA 636 T (where a fideicommissary right was held to be ius in persona and not a ius in rem), if a fiduciary has sold property 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 that an underhand waiver of their rights by the fideicommissary heirs is lodged with the deeds of transfer.

C. Provisions of Section 30 and Regulation 56 of the Deeds Registries Act 47 of 1937 with regard to a real right of fideicommissum in land partitioned
Section 30(1) of the Deeds Registries Act 47 of 1937 provides that if the whole of a property, or any share thereof, is subject to a fideicommissum and all the fideicommissary heirs are ascertained, such property may be partitioned by the fiduciary (unless there is a specific prohibition against partition in the instrument creating the fideicommissum) with the written consent of:

• all major fideicommissary heirs;
• the master in respect of any such heirs who are minors; and
• the trustees of any such heirs who are insolvent or the curator of any such heir who are under disability.

If none of the fideicommissary heirs are ascertained, or if some are ascertained and some are not, then the last part of subsection (1) of section 30, read with regulation 56 of the Deeds Registries Act 47 of 1937, will apply. Regulation 56 provides that proof must be submitted that the land or share awarded on partition to the owner of any share in the partitioned property subject to a fideicommissum is an equivalent of that share. This must be done by means of a written report of a sworn appraiser or of an impartial person approved by the Magistrate of the district in which the property is situated. If the whole property, i.e. every share held in it, is subject to a fideicommissum, the provisions of Regulation 56 will also be applicable.

D. Renunciation by a fiduciary
When a fiduciary renounces his or her right in land, such a renunciation has the effect of vesting the inheritance in the fideicommissary or in the fidiecommissaries 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(0).

When the fideicommissaries are undetermined, the Registrar of Deeds will not act under any supposed presumption that a fiduciary is beyond child-bearing age; for this he would require an order of court (see Registrar's Conference Resolution 6 of 1980 and 28 of 19878). To give effect to a renunciation of a registered fidiecommissum, the fiduciary passes transfer of the property to the fideicommissary.

E. Joint transactions by fiduciary and fideicommissary
If the owner of land subject to a fideicommissum and the fideicommissary, if the latter is competent to do so, have disposed of the land or any portion thereof, together with the fideicommissary rights to any other person, they may together give transfer to that person (section 69bis(1) of the Deeds Registries Act 47 of 1937).
In the preamble of the deed and power of attorney, the parties will be described as follows:

"Noel Kriel
Identity number: 5901065051 083
Married/n community of property
(as fiduciary)

May Kriel
Identity number:
Married out of community of property (as the holder
of the Fideicommissary right) (oras fiduciarii)"

The provisions of section 69 apply to land only, but there would be no objection in applying the principles laid down in section 69 and 69bis to a cession of real rights and notarial deeds of registration and cancellation of servitudes, and the joinder of such persons will be regarded as having taken place with their consent. Underhand consents can also be accepted (see in this instance Registrar's Conference Resolution 42 of 1967).

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 and accordingly a transfer in terms of section 69bis by the executor and the fideicommissary heir will be allowed by the Registrar of Deeds (see Registrar's Conference Resolution 22 of 1964.)

Section 69bis can also be invoked if the executor in the fiduciary's estate has sold property together with the fldeicommissary, provided that the Master's Certificate under section 42(2) of the Estates Act 66 of 1965) is lodged.

If, in the administration of the estate of a deceased fiduciary, any redistribution of the assets take place among the fideicommissary heirs, the executor of such an estate may transfer the land or cede the Real Right direct to the person entitled thereto in terms of such redistribution (section 14(1)(b)(iii) of the Deeds Registries Act 47 of 1937).

F. Fideicommissum residue
Where property is subject to a fideicommissum residue, the fiduciary is entitled to alienate the property 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. Such security will not be insisted upon in the following instances:

• If the testator specifically dispenses with the furnishing of security.
• Where the fiduciary is a parent of the fideicommissary (Ex parte Armstrong and Another 1957(3) SA625 (0)).
• In the case of a joint will by spouses appointing the survivor as heir, subject to a fideicommissum residue (Brown v Rickard 2 SC 314).

In Registrars Conference Resolution 2:11 of 1999 it was resolved that it is not the duty of a Registrar of Deeds to insist on proof that security has been furnished.

G. Fideicommissum inter vivos
Fideicommissa may also be imposed by agreement inter vivos created on transfer of land imposed by the transferor and may be inserted direct into the deed of transfer from the power of attorney to transfer such land. Until the fideicommissum has been accepted by the fideicommissary, a fideicommissum inter vivos can be revoked by the person imposing it with the consent of the fiduciary (Van derPlank v Otto 1912 AD 327).

In the case of a fideicommissum inter vivos, the fideicommissum does not fail if the fideicommissary heir dies before the fiduciary. It passes to the heir of the fideicommissary in the absence of any specific direction to the contrary (Ex Parte Istedi 1948(2) SA71 (K)) page 78.

H. The Immovable Property (Removal of Restrictions) Act 94 of 1965
This act came into operation on 1 October 1965 (Proclamation R234 of 1965). The purpose of the act is, inter alia, to restrict a fideicommissum which is in favour of more than two successive fideicommissaries, to the second successive fideicommisary. The act is also applicable to immovable property already vested on 1 October 1965, subject to a fideicommissum ri favour of more than two successive fideicommissaries. Where any immovable property is already registered in the second or later successive fideicommissary subject to such fideicommissum, the Registrar of Deeds must, on application by the fideicommissary accompanied by the title deed of the property together with such other proof as the Registrar of Deeds may consider necessary in regard to the vesting free of the fideicommissum, endorse the title to that effect.

Great care must therefore be exercised by Conveyancers encountering a registered fideicommissum to ensure that this has not perhaps lapsed by virtue of the provisions of section 6 and 7 of the saidAct 94 of 1965.

When a transfer to a second fideicommissary is effected, the cause of the deed of transfer will be drafted along the following lines:
"And the appearers declared that whereas the deceased is the registered owner by virtue of Deed of Transfer T8/2001 of the property mentioned hereafter, which property is subject to the following condition:

(mention the condition)
And whereas the transferor died on ………………………….
And whereas the transferee is the second fideicommissary heir who is entitled to the property free of the fideicommissum in terms of section 7, Act 94 of 1965."

I. When a fiduciary interest terminates and fideicommissary fails
Section 14(1)(b)(vi) of the Deeds Registries Act, 47 of 1937 provides that if a fiduciary interest in land or in a real right terminates before transfer of the land or cession of the real right has been registered in favour of the fiduciary, it shall be competent to transfer the land or cede the real right directly to the fideicommissary.

At a Conference of Registrars of Deeds in 1968, the Registrar of Cape Town has held that a direct transfer to a fideicommissary need not necessarily be from a testators estate and that in the case of a fideicommissum to the fourth generation, for example, the executor in the estate of a fiduciary who is the registered owner and survived the first fideicommissary may also pass transfer directly to the second fideicommissary.

It seems that the first fideicommissary in such cases becomes a fiduciary on the death the first fiduciary. See Rykliefs heir v Ryklief's Executors 1986 C (1 3SC) 64 referred to on page 302 of Steyns Law of Wills (Second Edition).

Registrar's Conference Resolution 12 of 1968 on this point reads as follows:"Where intermediate fideicommissaries fall, a direct transfer to the next fideicommissary must be effected from the fiduciary's estate." See Union Government (Minister of Finance) v Olivier 191 6A 74 at 85 and 91.

J. Disposal and mortgages of fiduciary interest
Fideicommissa are usually created by last will and it is first registered in the deed of transfer conveying the subject property to the fiduciary from the testator's estate. Where, for example, the fideicommissum provides that the immovable property shall pass to the fideicommissary heir on the death oron the remarriage of the fiduciary or on the occurrence of other events, the fiduciary may transfer the fiduciary right or interest. The new owner of the fiduciary interest will receive transfer of the property subject to the fideicommissum, and the condition of fideicommissum will thus be carried forward verbatim in the conditional clause of the deed of transfer. No consent is necessary from the fideicommissary,unless there is a provision to the contrary in terms of the fideicommissum.

A fiduciary, unless prohibited by the condition of fideicommissum, may mortgage his/her fiduciary interest in the immovable property. When a fiduciary interest is mortgaged, the security (fiduciary interest) in the bond will have to be made subject to the fideicommissum in terms of regulation 41(1) of the Deeds RegistryAct.

In the mortgage bond, the fiduciary interest will be described as follows:

"All right title and interest in the following property": (full description on of property). The mortgage of a fiduciary interest is seldom acceptable, as such security might at any time disappear.

Where a fiduciary interest only has been mortgaged and subsequent to registration the fiduciary interest ripens into full ownership, there appears to be no necessity to pass a new bond unless the mortgagee requires this (see in this instance Registrar's Conference Resolution 35 of 1967.

K. Si sine liberis decesserit provision
A fideicommissum can be created by implication. This will be the case only if it can be inferred from the terms of the will, considered in its entirety, that the bequest is to be encumbered with fideicommissum.

A si sine liberis decesserit provision can be illustrated by the example of a testator bequeathing an asset to A subject to the condition that, should Adie without leaving issue, then the asset is to pass on to B.

In the event of A having issue, then the fideicommissum in favour of B would fail.

An implied fideicommissum in favour of the children of A can be presumed. In the case of Du Plessis NO v Strauss 1988 (2/SA1O5), it was found that a si sine liberis decesserit provision in a will that is coupled to a conditional fideicommissum, gives rise to a presumption that the testator tacitly appointed the children as fideicommissaries, provided that the children are also descendants of the testator.

Republished with permission from SA Deeds Journal