SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable
Case no: 2476/2025
In the matter between:
MARIA MAGDALENA ERASMUS FIRST APPLICANT
YVONNE GOUWS SECOND APPLICANT
CLAUDIA BERYL LIEBENBERG THIRD APPLICANT
BAREND CHRISTIAAN VAN ROOYEN N.O. FOURTH APPLICANT
[In his capacity as executor of the estate of the
late Hercules Johannes Bester and surviving
spouse Claudia Beryl Bester, estate number 1555/2015]
And
CHRISTENE DE VOS FIRST RESPONDENT
MARIZANNE DE BEER SECOND RESPONDENT
CLAUDIA BERYL VENTER THIRD RESPONDENT
HERKLAAS DE VOS FOURTH RESPONDENT
WOUTER DEVOS FIFTH RESPONDENT
CLAUDIA BERYL VENTER N.O. SIXTH RESPONDENT
[In her capacity as executrix in the estate of the
late Claudia Beryl Bester, estate number 5898/2024]
MASTER OF THE HIGH COURT, BLOEMFONTEIN SEVENTH RESPONDENT
MASTER OF THE HIGH COURT, POLOKWANE EIGHT RESPONDENT
REGISTRAR OF DEEDS, FREE STATE PROVINCE NINTH RESPONDENT
Neutral citation: Erasmus and Others v De Vos and Others ( 2476/2025) [2026]
ZAFSHC 86 (5 March 2026)
2
Coram: DANISO J
Heard: 11 September 2025
Delivered: This judgment was handed down electronically by circulation to the parties’
representatives by email and released to SAFLII. The date and time for hand- down is
deemed to be 1600 on 05 March 2026
Summary: Wills – requirements statutory massing – formalities for adiation –
survivor not accepting benefits – survivor entitled to revoke will and make another.
_______________________________________________________________________
ORDER
_______________________________________________________________________
1 The application is dismissed.
2 The first, second and third applicants shall pay the costs of this application jointly
and severally the one paying the other to be absolved including the costs of counsel on
scale B.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
Daniso J
[1] Mrs Claudia Bester died a widow on 17 July 2024 at Naboomspruit , Limpopo
Province leaving a last will and testament dated 20 November 2020 (the 2020 will) . In
terms of the provisions of the 2020 will, financial bequests were made to her children, the
first to third applicants (the applicants) and the first respondent. The remainder of the
estate was bequeathed in equal shares to her grandchildren born from the first
respondent namely, the second to fifth respondents.
[2] The applicants are aggrieved that the estate of the late Mrs Bester is to be
administered and distributed on the basis of her 2020 will instead of the mutual will she
executed with their late father, Mr Hercules Johannes Bester , on 27 June 2014 in terms
of which they consolidated their joint estate for the purpose of a joint disposition, subject
to a fideicommissum in favour of their children. Mrs Bester, as the surviving spouse ,
3
adiated (accepted) the benefits arising from the mutual will to the effect that massing of
the assets of their joint estate occurred therefore, she was not entitled to execute the
2020 will to dispose of the joint assets contrary to the provisions of the mutual will . It is in
that regard that the applicants seek a declarator against the sixth respondent in her
capacity as executrix of Mrs Bester’s deceased estate on the following terms, that:
‘ 1.1. The will made on 27 June 2014 (“ the 27 June 2014 will ”) by the late Hercules Johannes
Bester, identity number 31[ …] (the late Mr Bester ”) and the late Claudia Beryl Bester, identity
number 33[…] (“the late Mrs Bester”), constitutes a joint will in terms of which the late Mr Bester
and the late Mrs Bester massed their respective estates;
1.2. The late Mrs Bester accepted the benefits in terms of the 27 June 2014
will subject to the provisions of the 27 June 2014 will;
1.3. Upon the acceptance of the benefits in terms of the 27 June 2014 will by
the late Mrs Bester, massing of the estates of the late Mr Bester and the
and late Mr Bester occurred subject to the provisions of clauses 4 to 6 of
the 27 June 2014 will;
1.4. In terms of clauses 4 and 5 of the 27 June 2014 will, a fideicommissum was created
in favour of the first to third applicants and the first respondent, in terms of which the
late Mrs Bester was the fiduciary and first to third applicants and first respondent are
the fideicommissaries in respect of the assets which formed part of the respective
estates of the late Mr Bester and the late Mr Bester on 27 January 2015;
1.5. The massed estate of the late Mr Bester and the late Mrs Bester, which also
comprise the fideicommissary assets in terms of the fideicommissum referred to in
paragraph 1.4 above, comprise of the following assets:
1.5.1. Subdivision 1 of the farm Erfdeel no. 1[ …] , district Kroonstad, held by deed of
transfer T6723/2015;
transfer T6723/2015;
1.5.2. Remaining extent of the farm Erfdeel no. 1[ … ], district Kroonstad, held by
deed of transfer T6723/2015;
4
1.5.3. Portion 4 of 1 of the farm Elandsrand no. 2[ …] , district Kroonstad, held by
deed of transfer T7293/2015; and
1.5.4. The amount of R750 000.00, namely the proceeds of Erf 6[ …] , district
Kroonstad, also known as 2[ …] B[…] Street, Elandia, Kroonstad, previously
held by deed of transfer T2918/2003.
1.6. The assets referred to in paragraph 1.5 above do not form part of the estate of the
late Mrs Bester for purposes of the administration of the estate of the late Mrs
Bester in terms of the will made by the Mrs Bester on 20 November 2020,
alternatively, the assets referred to in paragraph 1.5 above are excluded from the
provisions of the will made by the late Mrs Bester on 20 November 2020; and
1.7. The assets referred to in paragraph 1.5 above must be administered, sold and the
proceeds paid in equal shares to the first to third applicants and the first respondent
in terms of the provisions of clause 5 of the 27 June 2014 will by the fourth applicant
under estate number 1555/2015; alternatively, by the sixth respondent under estate
number 5898/2024.
2. Alternatively to paragraphs 1 to 1.7 above, that it be declared and ordered that:
2.2. In terms of the provisions of clause 5 of will made on 27 June 2014 (“ the 27 June
2014 will”) by the late Hercules Johannes Bester, identity number 31[…] (the late Mr
Bester”) and the late Claudia Beryl Bester, identity number 33[ …] (“the late Mrs
Bester”) the 27 June 2014 will, a fideicommissum was created in favour of the first
to third applicants and the first respondent in respect of the late Mr Bester undivided
half shares in the following assets:
2.2.1. Subdivision 1 of the farm Erfdeel no. 1[ …] , district Kroonstad, held by deed
of transfer T6723/2015;
2.2.2. Remaining extent of the farm Erfdeel no. 1[ … ], district Kroonstad, held by
deed of transfer T6723/2015;
2.2.3. Portion 4 of 1 of the farm Elandsrand no. 2[ …] , district Kroonstad, held by
deed of transfer T7293/2015; and
5
2.2.4. Erf 6 […] , district Kroonstad, also known as 2[ …] B[…] Street, Elandia,
Kroonstad, previously held by deed of transfer T2918/2003, which was sold
by the late Mrs Bester for the amount of R750 000.00.
2.3. The first to third applicants and the first respondent are entitled to enforce clause 5
of the 27 June 2014 will in respect of the late Mrs Bester’s undivided shares in the
immovable properties referred to in paragraphs 2.1.1 to 2.1.3 above and the amount
of R375 000.00, namely 50% of the proceeds of the immovable property referred to
in paragraph 2.1.4 above, against the estate of the late Mrs Bester; and
2.4. The sixth respondent is directed to give effect to the provisions of the
fideicommissum in accordance with the provisions of clause 5 of the 27 June 2014
will in respect of the assets referred to in paragraph 2.2 above and to:
2.4.1. Award and distribute 50% of the proceeds of the immovable properties
referred to in paragraphs 2.1.1 to 2.1.3 in equal shares to the first to third
applicants and the first respondent; and
2.4.2. Award and distribute the amount of R375 000.00 in equal shares to the first
to third applicants and the first respondent.
3. That the sixth respondent be ordered to pay the costs of the application.
4. That in the event that the application is opposed by any of the other respondents, that such
respondent be ordered to pay the costs of the application, jointly and severally, with the sixth
respondent . . .’
[4] The facts pertinent to the determination of this dispute are common cause: during
her lifetime, Mrs Bester was married in community of property to Mr Bester . They lived in
Kroonstad, in the Free State Province until Mr Bester passed away on 27 January 2015.
The relevant parts of the mutual will provide as follows:
‘2.
ONS benoem en stel hiermee aan as Eksekuteur van ons boedel ons Prokureur BAREND
CHRISTIAAN VAN ROOYEN van die firma GRIEMBEEK VAN ROOYEN & VENNOTE ING,
CHRISTIAAN VAN ROOYEN van die firma GRIEMBEEK VAN ROOYEN & VENNOTE ING,
Presidentstraat 4[…] KROONSTAD, met al die magte in die Wet toegelaat en veral die mag van
assumpsie en op die uitdruklike voorwaarde dat dit nie vir my Eksekuteur sal nodig sal wees om
enige sekuriteit te lewer aan die Meester van die Hoogeregshof of enige ander bevoegde
6
amptenaar vir die behoorlike uitvoering van sy pligte onder die amp voormeld nie.
3.
ONS bepaal dat die boedels van die eersstenrwende van ons en die langslewende van ons
saamgesmelt moet word en beredder word as een boedel.
4.
ONS bemaak die geheel van die saamgesmelte boedel aan fie langslewende van ons,
onderworpe aan die bepalings van toepassing by die afsterwe van die langslewende soos
hierinlater uiteengesit.
5.
ONS bepaal dat by die afsterwe van die langslewende van ons, of indien ons gelyktydig te sterwe
sou kom, al ons bates te gelde gemaak moet word. Ons erfgename het egter ʼn voorkoosreg om
enige van die bates te koop teen markwaarde, indien enigeen van hul sou belangstel. Die
opbrengs daarvan sal as volg verdeel word:-
5.1. Aan ons dogter YVONNE GOUWS 25%
5.2. Aan ons dogter CHRISTENE DE VOS 25%
5.3. Aan ons dogter CLAUDIA BERYL LIEBENBERG 25%
5.4. Aan ons dogter MARIA MAGDALENA ERASMUS 25%
6.
ENIGE person aan wie enige erfenis onder hierdie Testament mag toekom, sal sodanige erfenis
of vrugte daarop of toekomstige vrugte daarop ontvang en geniet as sy haar vrye, uitsluitlike en
onbelemmerde eiendom, vry van die skulde, immenging, beheer en bystand van enige eggenoot
of eggenote, met wie hy of sy in die huwelik getree het in die toekoms mag tree en sodanige
erfenis of vrugte daarop sal uitgesluit wees van enige gemeenskap van goed of aanwas in terme
van die aanwasbedeling volgens die Wet op Huwel iksgoedere 88 van 1984, met sodanige
eggenoot/eggenote. Verder word die maritale mag wat die eggenoot van ʼn vroulike erfgenaam
mag besit as gevolg van sy huwelik met sodanige vroulike.’
[5] The fideicommissary assets as contemplated in clauses 4 and 5 comprise of the
following assets:
i) Subdivision 1 of the farm Erfdeel no. 1[… ], district Kroonstad, h eld by deed of
transfer T6723/2015;
7
ii) Remaining extent of the farm Erfdeel no. 1[…] , district Kroonstad, held by deed of
transfer T6723/2015;
iii) Portion 4 of 1 of the farm Elandsrand no. 2[ …] , district Kroonstad, held by deed of
transfer T7293/2015; and
iv) The amount of R750 000 being the proceeds of the sale of erf 6[ … ], district
Kroonstad, also known as 2[…] B[…] Street, Elandia, Kroonstad, previously held by deed
of transfer T29181/2003.
[6] In sum, it is the applicant’s case that it is clear from the provisions of the mutual
will that the late Mr and Mrs Bester intended to mass their estates arising from their
marriage in community of property for the purpose of a joint disposition subject to a
fideicommissum in favour of their children. The mutual will further stipulates that upon
their respective or simultaneous deaths, the estate shall devolve upon their children in
equal shares. Following Mr Bester’s death, the fourth applicant in his capacity as the
appointed executor duly explained to Mrs Bester the conditions and benefits of the
mutual will essentially that , if she adiates she cannot at a later stage revoke those
conditions. Mrs Bester confirmed that she understood the implications and provided a
verbal adiation as such there is no written adiation.
[7] In a letter dated 1 November 2024 addressed to the respondents’ attorneys , the
Master in Bloemfontein alluded to the fact that a letter was transmitted to the fourth
applicant on 1 March 2016 in terms of which the fourth applicant was directed to lodge
Mrs Bester’s election in respect of the fideicommissum . It is the fourth applicant’s
submission that , indeed, he did not reply to the letter as he did not receive it . In any
event, Mrs Bester’s acceptance was verbal.
[8] Mr Pienaar , on behalf of the applicants , submitted that neither s 37 of the
Administration of Estates Act 66 of 1965 (Estates Act) nor the common law requires
adiation to be in writing. Upon Mrs Bester’s acceptance of the benefits of the mutual will ,
adiation to be in writing. Upon Mrs Bester’s acceptance of the benefits of the mutual will ,
which include taking possession of the movable assets and receiving transfer of the
immovable properties, massing of Mr and Mrs Bester’s estates occurred. I n support of
these submissions, Mr Pienaar referred to Anderson v Du Plessis
1 (Anderson) asserting
that this authority confirms that the acceptance of any benefit under the will of the first
1 Anderson v Du Plessis NO [2025] ZAWCHC 243 paras 40-42.
8
dying amounts to adiation.
[9] Mr Pienaar also referred to Van den Heever N.O v Poulos 2 (Van den Heever) and
contended that the general rule is that a person is assumed to have adiated unless he
expressly repudiates. Nothing express or explicit is required by way of acceptance
accordingly, Mrs Bester w as not entitled to execute the 2020 will to dispose of the joint
estate, the estate must be disposed of in terms of the massed will.
[10] As regards the manner of distribution of the joint estate, it is acknowledged by the
applicants that the liquidation and distribution account (the L&D account) lodged in terms
of the mutual will makes no reference to a massed estate nor the provisions of s 37 of
the Estates Act as required by r egulation 5(1) (a)(vii) and 5(1) (e)(i) of the Estates Act.
Furthermore, after the death of the late Mr Bester, the immovable properties of the joint
estate were transferred to Mrs Bester in terms of s 45(1) of the Deeds Registries Act 47
of 1937. However, the fideicommissum conditions as stipulated in clause 5 of the mutual
will were not recorded in the transfer documents (the s 45 transfer documents) . The
applicants attribute that the non-compliance with the apposite r egulations, including the
omission of the fideicommissum conditions from the s 45 transfer documents , to an
oversight by both the fourth applicant and the transferring attorneys.
[11] The applicants further contend that the L&D account laid for inspection during the
period 24 April 2015 to 15 May 2015 – no objections were lodged. It is the applicants’
case that t he L&D account can still be amended as the deceased estate has not been
finalized. Based on all these reasons, it is their contention that they have made out a
case for the relief they seek.
[12] The application is opposed by the sixth respondent. The Master: Bloemfontein, the
Master Polokwane and the Registrar of Deeds (seventh to ninth respondents) are cited
Master Polokwane and the Registrar of Deeds (seventh to ninth respondents) are cited
by virtue of their respective interest in the order sought , no relief is sought against them.
The report filed by the Master, Bloemfontein, merely confirms the fourth applicant’s
appointment as executor to liquidate and distribute the estate of the late Mr Bester and
2 Van den Heever N.O v Poulos [2023] ZAPGPJHC 349 para 51.
9
the then surviving spouse, Mrs Bester.
[13] The sixth respondent is adamant that not all the requirements for statutory
massing have been met . The estate must accordingly be dealt with in terms of the 2020
will. The fact that there is no written proof of Mrs Bester’s adiation should be the end of
the matter.
[14] Mr Prinsloo, on behalf of the sixth respondent argued that the administration of
the late Mr Bester’s estate involved two experienced legal practitioners who regularly
dealt with estate and related matters therefore, the fact that the estate was not
administered as a massed estate including the omission of the fideicommissum
conditions from the s45 transfer documents was not due to some error. This
circumstance, coupled with the fact that no written adiation was obtained from Mrs Bester
until she passed away approximately eight years after Mr Bester’s death is an indicator
that Mrs Bester refused to sign the adiation as she did not accept the massing of the
estates. Counsel added that it is also important to note that t he Master, Bloemfontein’s
memorandum and certificate of inspection also refer to the deceased estate late HJ
Bester and not a joint or massed estate.
[15] Mr Prinsloo disagreed that Mrs Bester’s conduct by accepting the benefits under
the mutual will amounted to adiation, as Mrs Bester was entitled to receive the benefits in
terms of her marriage in community of property. That aside, the fact that she executed
various wills after the death of Mr Bester, the last being the 2020 is an indicator that she
regarded herself as entitled to dispose of her estate. The application must accordingly be
dismissed with costs.
[16] I am in agreement with the sixth respondents’ contentions. Section 37 of the
Estates Act deals with massed estates. It provides as follows:
‘If any two or more persons have by their mutual will massed the whole or any specific portion of
10
their joint estate and disposed of the massed estate or of any portion thereof after the death of
the survivor or survivors or the happening of any other event after the death of the first-dying,
conferring upon the survivor or survivors any limited interest in respect of any property in the
massed estate, then upon the death after the commencement of this Act of the first-dying,
adiation by the survivor or survivors shall have the effect of conferring upon the persons in whose
favour such disposition was made, such rights in respect of any property forming part of the
share of the survivor or survivors of the massed estate as they would by law have possessed
under the will if that property had belonged to the first-dying; and the executor shall frame his
distribution account accordingly.’
[17] Having regards to the provisions of s 37 for massing to take effect, there must be
a mutual will in terms of which the parties consolidate their estates into one mass for the
purpose of a joint disposition after the death of the survivor. The mutual will must confer
only a limited interest on the survivor, which in this matter is a fiduciary right. The survivor
must adiate upon the death of the first -dying,3 who must have died or before the Estates
Act was promulgated.4
[18] The effect of clause 3 including the proper construction of the mutual will in its
entirety is that the late Mr and Mrs Bester intended to consolidate their estates into one
mass for the purpose of a joint disposition after the death of the survivor ( Mrs Bester),
subject to a fideicommissum in favour of their children. On the facts germane to this
matter, it is the requirement pertaining to adiation that is in dispute.
[19] As correctly pointed out by the applicants, s 37 of the Estates Act does not require
that adiation must be in writing. However, as much as the Estates Act is silent on how
adiation must be effected or proven where verbal adiation is asserted, it must be
adiation must be effected or proven where verbal adiation is asserted, it must be
corroborated by the surrounding factors which include the conduct of the survivor after
the death of the first -dying, the manner in which the estate was administered and the
documentary evidence in order to arrive at the conclusion that massing has been
established.
[20] In terms of s 37 of the Estates Act, where there has been massing and adiation
the executor must frame his L&D account accordingly. Except for Mrs Bester’s
3 Rosenberg v Dry’s Executors and Others 1911 AD 679; Strauss v Strauss and Others [2023] ZAGPJHC
377 para 14; Kruger v Terblanche 1978 (2) SA 198 (T) 205A to 206A.
4 On or before 2 October 1967.
11
undisputed acceptance of the benefits under the mutual will, on the applicants’ own
submission, the estate was not administered as a massed estate in that the L&D account
makes no reference to a massed estate and the fideicommissum condition w as not
recorded on the s 45 transfer documents.
[21] Regulation 5 of the Estates Act deals with the formalities pertaining to L&D
accounts. Regulations 5(1)(a)(vii), 5(1)(e) (i) and (5(1) (g)(i) prescribe that the L&D
account must disclose the provisions of the will relating to massing and also require the
executor’s account to specify under Fiduciary Assets Account the fiduciary assets held
by the deceased as fiduciary.
5
[22] Mrs Bester’s adiation is also not borne out by the s 45 transfer documents. The
fact that the fideicommissum condition as contemplated in the mutual will (clause 5) was
not inserted in the s 45 transfer documents puts paid to the applicants’ contention that
Mrs Bester adiated her conditional limitation of ownership of the immovable propert ies
(the fideicommissary assets). Absent the recordal of this clause, i t cannot be said that
when she made the election, she had full knowledge of the consequences of her
election.
[23] It must be borne in mind that as opposed to ordinary testamentary bequests
where the survivor upon adiation simply accepts a gift , with regard to adiation in the
context of massing, the acceptance of a gift is accompanied with an irrevocable
obligation. Once the survivor adiates, she loses her testamentary freedom in that, she is
prohibited from disposing of the massed estate which include s her own assets . In my
view, these stringent consequences behooves the court to scrutinize verifiable
documentary evidence and not only rely on a bare verbal adiation.
[24] For the reasons that I have alluded to above, I have to come to the conclusion that
the reliance on Anderson and Van den Heever does not provide refuge to the applicants .
the reliance on Anderson and Van den Heever does not provide refuge to the applicants .
It is important to also point out that in Anderson the survivor had filed a sworn statement
detailing the circumstances surrounding his acceptance of the benefits .
6 I am not
persuaded that Mrs Bester adiated the benefits arising from the mutual will following the
5 D Meyerowitz and P H Cilliers Meyerowitz, Administration of Estates and Their Taxation 2 ed (2023) at
218-223.
6 Footnote 1 paras 5 and 43.
12
death of Mr Bester. The result is that there was no massing of their respective estates . In
the premises, the estate of the late Mrs Bester must be administered and distributed on
the basis of her last will and testament dated 20 November 2020.
Costs
[22] There is no reason why the costs should not follow the result
Order
[23] I make the following order:
1 The application is dismissed.
2 The first, second and third applicants shall pay the costs of this application jointly and
severally the one paying the other to be absolved including the costs of counsel on scale
B.
________________
NS DANISO
JUDGE OF THE HIGH COURT
Appearances
For the applicants: C D Pienaar SC
Instructed by: Rosendorff Reitz, Attorneys, Bloemfontein
For the 6th respondent: WJ Prinsloo
Instructed by: JB Cornelius Attorneys, Naboomspruit
Pieter Skein Attorneys, Bloemfontein.