Residuary Clauses – Partial Intestacy

24 August 2022


We all know the importance of having a residuary clause, however, it is not something that clients focus on and we as practitioners must provide a prompt for clients in relation to these. There tends to be a misconception amongst practitioners that a residuary clause is required for a valid will. Validity of a will is dealt with in ss. 77 and 78 of SA 65, – and again as a reminder, the four key elements for a valid will are (i) made by a person over 18 (ii) the testator being of sound disposing mind (iii) the will being in writing and (iv) executed and witnessed appropriately. No mention of a residuary clause.

If there is no residuary clause, then any asset not disposed of by the will, that remains in existence at the date of death falls into intestacy. It could well be the case that a testator who has no residuary clause has only one asset and disposes of that adequately in his or her will and so no assets fall into the residue. In that case while a partial intestacy still arises there is no asset falling on intestacy. However, it is difficult to see how someone on death would not have some remaining asset (like cash in the house or on their person, a refund due etc).

Sometimes a will, will contain the following residuary bequest. “I give, devise and bequeath the remainder of my estate in equal shares to my children”. If one of the children die before the deceased, then, the share of that child does not fall to the other surviving siblings but falls on intestacy (subject to two particular rules (which we will look at later)). The reason for this is that the residue contains words of severance. Any words of severance (such as “in equal shares” or “between” or “share and share alike” or “as tenants in common”) means that the beneficiaries of the residue receive the residue as tenants in common and the share of the pre-deceased beneficiary falls on intestacy (subject to the two rules).

In contrast, if the residue is provided for as follows “I give, devise and bequeath, the remainder of my estate jointly between my children”, then, in that case, no words of severance arise, and on the death of one child the remaining estate passes to the surviving children. No partial intestacy arises.

Hope this helps and I will be dealing with other aspects of partial intestacy and the residue over the coming number of blogs.

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