A critical analysis of the Judgement in Wessels v De Jager regarding the vesting of rights, upon the deceased’s death in a beneficiary, together with a critical discussion of the Court’s dictum that, from its analysis, it follows that Kellerman v Van Vuuren was decided correctly.
Short set out of facts of the circumstances regarding the Wessels v De Jager case and the facts relating to the Kellermen v Van Vuuren case together with the respective Judgements and the reasons therefore.
The Judgement in the Wessels case makes it clear that a nominated beneficiary/ heir/ legatee has competence to adiate or repudiate and that such a beneficiary only obtains a legal right to claim once adiation has taken place. As from the opinions of various scholars supra, a competence to adiate or repudiate is not a vested right and therefore repudiations of a bequest is not a disposition of an asset without compensation. This is also confirmed by the case law above. Whether one, as a legal practitioner /scholar/expert, agree with the judgement, it is the case law and precedence on which future matters will be adjudicated. If one accepts that a beneficiary/heir/legatee has a competence to adiate or redupiate, and that vesting of a right to claim only takes place once a beneficiary has adiated, whereas the beneficiary has a right to claim from the executor on a future date (when the estate is in a position to distribute) the question remains if a beneficiary has the legal capacity to act on such a competence to adiate or repudiate? Does the limited legal capacity of an insolvent beneficiary allow the last mentioned to exercise the election to repudiate a bequest?
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