I’m the fideicommissary heir but my sister won’t give me the keys to our home after our mom, the surviving spouse, died. What can I do?

The long answer

The Latin word fideicommissum means a legal way for an owner to transfer property to a beneficiary (called a fiduciary) on the condition that the property will eventually be transferred to another beneficiary (fideicommissary) at a later time. 

STBB says that the fideicommissum is recorded as a condition in the title deed when the property is transferred to the spouse. It is often used as a way to keep property in the family, where the surviving spouse is the first beneficiary (the fiduciary) and the fideicommissary is the next beneficiary.    

In a marriage in community of property, a massed estate means the acceptance of a joint will, which combines the surviving spouse’s estate with the deceased spouse’s estate. A surviving spouse is given a beneficial interest – to enjoy the property as long as he or she lives, but then must transfer it to the fideicommissary when he or she dies. 

The surviving spouse is not legally bound to accept the mutual will – they have the legal right to reject or repudiate it. This would mean refusing the inheritance and the conditions laid down for it.

But if the surviving spouse accepts the mutual will, this acceptance is known as “adiation”. Thus, adiation is the act of taking ownership of an inheritance, which shows that the beneficiary accepts the benefits it grants and agrees to abide by the terms and conditions of the will. As you say, your mother’s adiation was recorded in the deeds of transfer of the property to her. 

So in the context of a massed estate, a fideicommissum allows for the transfer of property within a family or group of beneficiaries, subject to whatever time frame or condition is stated in the joint will. The law limits the number of substitutions within a fideicommissum to a maximum of two or three. After that, the property is transferred to the final fideicommissary, who can dispose of it as they wish. 

Wikipedia gives the following example: “If, for example, certain land is left to the eldest son of the testator and, when he dies, on to his eldest son, and upon his death to his eldest son, this is the furthest the property can go in terms of the fideicommissum multiplex. The second fideicommissary may bequeath the land to whomever he wishes.”

So where is your sister in all this? Do you know why she is refusing to give you the keys? What reason does she give? Her rights and your obligations as a fideicommissary will depend on the actual wording of the exact terms of the joint will.

Our society places great value on freedom of testation – in other words, the freedom to leave your property to whomever you like. An article in 2021 by Amanda Visser for Moneyweb said that in, South Africa, there is a golden rule when it comes to the interpretation of wills, and that is that you have to interpret the will using the wording of the will only.

She went on to explain that in general, our law rules against “extrinsic evidence” – evidence which comes from a source outside the will itself. So, a clear bequest of property to a son, which did not mention that a daughter would not inherit because of her gender, would probably pass.  

But, in 2021, the Constitutional Court gave its judgment in a case of a fideicommissum dating from 1902, where the fideicommissum specifically excluded female descendants from inheriting on the basis of their gender (King NO and Others v De Jager and Others). Section 9 of the Constitution does not allow discrimination on the basis of gender.

Visser explained that the Concourt made it very clear that there is no right to inherit and that a testator is not under any obligation to treat his family or his children equally in his will, or to bequeath anything to any of his children. But the court said that, if you discriminate on one of the grounds prohibited by the Constitution, like discrimination on the basis of gender, that provision would be unlawful and could not be enforced.

So it would be good to check on the exact wording of the fideicommissum to see if your sister has grounds to object to your being the fideicommissary. If she believes that there is a legitimate reason to challenge the fideicommissum or the interpretation of the will, she can file a formal objection with the Master of the High Court or take legal action in court.

Perhaps you should gather all the relevant documents, including the will, any amendments, plus the evidence of your mother's adiation, and contact the Master of the High Court yourself, and ask for assistance in getting the keys to the house. 

You could also contact the Black Sash, which gives free paralegal advice, and/or Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer.

These are their contact details:

• The Black Sash

Email: help@blacksash.org.za and info@blacksash.org.za

Tel: (national office): 021 686 6952

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

• Legal Aid 

Email: communications2@legal-aid.co.za

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 
Please Call Me: 079 835 7179

Wishing you the best,
Athalie