QUESTION ONE
(a) Despite the freedom of testation in Wills Act 7 of 1953 the Maintenance of Spouses Act places a limitation on this freedom. Section 2 of this Act provides Jennifer with a claim for reasonable maintenance if she cannot support herself until death.
(b) Yes, Chris’ will clearly states that Penelope must inherit.
(c) Yes, Otto will inherit because the naciturus rule applies. Otto was conceived before the death of Andrew (and provided he was born alive). As a grandchild he must inherit.
(d) If Otto survived for 35 minutes he must have breathed during this time and deemed to have been born alive. According to the nasciturus rule he would still inherit.
(e) If Lerato fell pregnant after Andrew’s death the nasciturus rule does not apply and therefore Otto will not inherit.
(The nasciturus rule states that the foetus is regarded as born at conception if it is to his/her advantage and interest. He/she is therefore a legal subject from conception and entitled to any rights thereafter. For these rights to be exercised the foetus must be born alive.)
QUESTION TWO
(a) Ms. Manemela must proceed with a common law presumption of death application because she is making the application in her private capacity and no unnatural death is suspected.
(b) Any interested party may approach the High Court in the area where the person was domiciled.
(c) Ms. Maemela must complete a presumption of death application containing all the relevant details e.g. the age of the person, the length of absence, occupation, circumstances of disappearance and any other details that may support the probability that the person is dead. It does not have to be proved beyond reasonable doubt but it must be sufficient to convince the court that the death is presumed.
The applicant is then ordered by the court to give notice of the rule nisi to all interest parties and publish it in the Government Gazette and newspapers in the area where the person stayed. If...
