A client recently asked:
“My father left his estate to his three children (my siblings and me). One of my siblings died before my father. The will simply says, ‘I leave my estate to my three children.’ Does my late sibling’s share go to me and my surviving sibling, or does it pass to his children (my father’s grandchildren)?”
This question raises an important issue in South African succession law that is answered by Section 2C(2) of the Wills Act 7 of 1953. This section deals with the lapse of a bequest to a descendant of the testator and introduces the principle of per stirpes substitution.
Legal Framework: Section 2C of the Wills Act
2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will
(1) If a descendant of a testator excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.
What This Means in Simple Terms
Section 2C(2) of the Wills Act deals with what happens when a descendant of the testator (e.g. a child) cannot or does not inherit — for example, because:
In such cases, the children of that descendant (the testator’s grandchildren) will inherit per stirpes — that is, they step into their parent’s place and receive what their parent would have received — unless the will indicates a different intention.
This is subject to Section 2C(1), which gives the surviving spouse preference in certain circumstances where someone renounces their inheritance during the testator’s lifetime.
Case law
Jaftha v Van der Westhuizen NO and Another 2007 (3) SA 237 (CC)
Although primarily a case about Section 2C(1), the Constitutional Court confirmed the underlying principle of protecting inheritance rights of descendants in the absence of clear contrary intent in the will.
This principle applies equally in Section 2C(2): the law assumes the testator would have wanted their grandchildren to inherit, unless the will says otherwise.
Spies v Smith 1957 (1) SA 539 (A)
In this early case, although predating the enactment of Section 2C, the court dealt with the idea of whether a benefit lapses when a beneficiary dies or is disqualified.
This case established the rule that if a will is silent, the benefit does not simply vanish — it may pass to the next generation, depending on context — a rule later codified in Section 2C(2).
Suggested clauses in a will to include or override Section 2C(2)
To exclude grandchildren, say so clearly:
“If any of my children die before me, their share shall not go to their children. Instead, their share shall be divided equally among my surviving children.”
Or to include them –
“If any of my children die before me, and they leave children of their own who survive me, those children shall inherit, in equal shares, the portion their parent would have received.”
Conclusion
In response to the client’s question, if her father’s will states simply, “I leave my estate to my three children,” and one of those children (her sibling) dies before the father, the grandchildren (i.e., the deceased sibling’s children) will inherit his share equally, unless the will clearly states otherwise. This is the effect of Section 2C(2) of the Wills Act 7 of 1953, as confirmed in the Jaftha case.
This provision ensures that family wealth remains within the bloodline, protecting the rights of children and avoiding unintended lapsing of inheritance. It is essential, both in drafting and interpreting wills, to consider this provision carefully—especially where no express substitution is made.