Bequest of a "business concern together with all its assets and liabilities" : some comments

Abstract

This article addresses the nature of a bequest in a will to a beneficiary of a "business concern together with all its assets and liabilities" in view of the facts in Gradus v Sport Helicopters also known as Sport Aviation (19879/2008) 2012 ZAWCHC 365 (28 November 2012) SAFLII . In the course of transporting passengers in terms of the business of Sports Aviation, a helicopter crashed. Soon after the accident the owner of the business died and bequeathed to his son ("the beneficiary") "the business concern known as Sports Aviation together with all its assets and liabilities". Two years later, passengers involved in the accident issued summons. The action was brought against the beneficiary. The question before the court was whether the beneficiary inherited the liability arising from the helicopter accident prior to the testator's death, or whether the deceased estate bore liability. Although the court found adiation of the benefit by the beneficiary not to have taken place, the article addresses some related issues, such as the possible impression that the testator bequeathed liabilities as such. As a matter of general interest the author also pursues some arguments or defences available to the beneficiary should the court indeed have found that he adiated the benefit. The conclusion is reached that the bequest above, arguably, constitutes a modus which is in itself a valid bequest. It is, however, argued that adiation by a beneficiary of the benefit (a "sole proprietorship") immediately upon the death of the testator is seemingly not possible since the (business) assets were subject to sale if there were to be insufficient funds in the estate (of the deceased) to pay the estate debts or to cover cash legacies. The probable intention of the testator when making such a bequest and the possible meaning of the word "liabilities" are investigated. Applicable presumptions, the issue of adiation "in excusable ignorance of rights" and the question whether the action for pain and suffering is passively transmissible, are briefly considered.