Braun v Blann and Another NNO

• Jurisdiction: South Africa
• Judge: O'donovan J
• Judgment Date: 17 May 1982
• Citation: 1982 (4) SA 166 (W)
• Hearing Date: 28 April 1982
• Court: Witwatersrand Local Division

O'Donovan J:

This application concerns the will of the applicant's late B mother, Annie Mary Botha, who died on 4 March 1981. The testatrix, after making certain specific bequests to her two children (Frederick and Helen), her nephews, cousins and grandchildren, left the residue of her estate to her administrators to be held by them in trust for the purposes set out in clause 4 of her will. The administrators were her son Frederick and a third person who is not a beneficiary.

Clause 4 reads as follows: C

'I give, devise and bequeath the whole of the rest, residue and remainder of my estate, whether movable or immovable and wheresoever situate, and whether the same be in possession, reversion, remainder, expectancy or contingency, unto and in favour of my administrators, to be held by them in trust for the following intents and purposes, and upon the following terms and conditions:

(a)

D My administrators shall have the widest and most unrestricted powers of investment and reinvestment of the capital (which expression when used in this will shall include any income added to the capital), including the power to mortgage, pledge, hypothecate or otherwise encumber any asset forming part of the capital.

(b)

My administrators shall apply such portion as they deem fit of E the net income accruing from the capital held in trust in such proportions as they shall from time to time determine for the benefit and advantage of one, more or all of:

(i)

Frederick;

(ii)

Helen;

(iii)

F Faith Botha (born Fisher), the present wife of Frederick for so long as she is married to him or during her widowhood, before remarriage, if she shall survive him and the marriage between them shall not have been dissolved at the date of his death;

(iv)

the lawful issue of Frederick;

(v)

the lawful issue of Helen;

and shall add such portion of the net income as is not so applied to the capital held in trust.

(c)

G The trust herein created shall terminate:

(i)

As to one-half of the then capital on the death of the first dying of Frederick or Helen or on 31 December 1984, whichever event be the later;

(ii)

as to the capital still held in trust after the application of the provisions of subclause (c) (i) of this clause on the H death of the last dying of Frederick or Helen or on 31 December 1984, whichever event shall be the later;

provided that my administrators shall be empowered, notwithstanding the aforegoing, to postpone the termination of the trust in whole or in part for such period and on such conditions as they may determine.

(d)

On the termination of the trust as to the one-half referred to in subclause (c) (i) of this clause and as to the complete trust as provided in subclause (c) (ii) of this clause, or on any postponed termination in terms of the proviso to subclause (c) of this clause, the capital concerned shall be paid to one, more or all of the persons referred to in

O'Donovan J

subclause (b) (iv) and (v) of this clause in such proportions as my administrators shall determine provided that if any of the A said persons be deceased leaving lawful issue surviving him or her my administrators shall be empowered to apply such portion of the capital as they determine to the creation of a trust for such lawful issue for such period and subject to such terms and conditions and under the control of such trustees as my administrators shall determine.'

The issue for determination is whether the discretionary provisions in clause 4 are valid or whether the residue should devolve as on B intestacy. The case for the applicant, who seeks an order declaring these provisions to be invalid, is founded on the rule of law that a person may not delegate his testamentary power, and that the discretion as to who shall be the beneficiaries under his will is that of the testator ne. alone. It is contended by the applicant that the recognised C exceptions to this rule do not extend beyond the following cases:

(i)

A discretion may validly be conferred upon testamentary trustees for charitable purposes;

(ii)

a testator may validly bequeath property to X...