The current legal position is fairly straight forward in this regard,
in that one can only bequeath something to a living person, alternatively only
in the event that specific instructions are made within the testament can one still
Thus, if you bequeath your vehicle to your brother in your testament
and your brother is predeceased, (which means dies before you), your vehicle
will still remain your property and will be dealt with in your estate and will
form part of the remainder of the property not dealt with in your will.
There is however, exceptions to the rule and therefore it is of the
utmost importance that you, when drafting your testament to obtain legal
knowledge from an expert attorney in order to prevent unnecessary litigation
after your death.
One of the exceptions are that when drafting your testament, you may
include a provision in your testament wherein you expressly deal with
situations in the event that one of your heirs are predeceased, for example that
“should my brother become predeceased then in that event my vehicle will be
bequeathed to my brother’s son” or “should my brother become predeceased then
in that event my vehicle will still form part of the remainder of my estate and
shall be dealt with accordingly”.
The abovementioned is the position when a person dies testate; meaning
with a testament in place, the situation however differs if a person dies
intestate, meaning without leaving a testament.
In terms of the current legal position when a person dies intestate an
heir will inherent irrespective whether same is predeceased or not. Normally
the inheritance will form part of that person’s estate and will then be dealt
with by either his/her testament or in cases of intestate in terms of the intestate
It should be noted that in the event that all your
heirs are predeceased, your entire estate might be forfeited to the state
if no heirs are identified.
It is therefore of extreme importance that you ensure that you have a
valid and lawful testament in the event of your untimely demise.