Die modus as boedelbeplanningsinstrument in die Suid-Afrikaanse reg
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The modus is defined as a provision in a will whereby the testator bequeaths property to a person. The testator then imposes a charge on that person to employ the bequest or the value thereof, for a certain specified purpose, or places a duty on the person to do something else to the benefit of a third person or persons. The application of the modus plays a prominent part in the estate planning process. Because of this fact, it is essential that both the estate planner and the testator have extensive knowledge of the nature, application and legal consequences of the modus. It is also important that the estate planner knows about the different variations of the modus. The estate planner should also be familiar with the types of modus that could be applied under different circumstances. The estate planner should be well-acquainted with the legal implications if the modus should be regarded as a nudum praeceptum or a "nude bequest". Under these circumstances it will be invalid, and the will of the testator will be defeated. There is a close resemblance between the modus, fideicommissum, stipulatio alteri, trust and a condition. These legal figures are similar with regard to their characteristics and it is easy to confuse them with each other. In the past, the confusion between these legal figures has lead to diverse judgments. The courts have the tendency to place one legal figure on equal footing with another similar legal figure and to neglect to draw a clear distinction between them. In order to remedy this turn of events, it is necessary that the estate planner differentiate between each of the legal figures. The differentiation is achieved by comparing the definition and characteristics of the stipulatio alteri, fideicommissum, conditions and trust respectively, with the characteristics of the modus. Throughout this examination reference is made to the opinion of writers and case law to achieve an understanding of the legal problem. Once this legal uncertainty is eliminated, it is possible to form a complete view of the effect of the modus on estate planning.
- Law