Abstract:
The modus is defined as a provision in a will whereby the testator bequeaths
property to a person. The testator then imposes a charge on that person to
employ the bequest or the value thereof, for a certain specified purpose, or
places a duty on the person to do something else to the benefit of a third
person or persons.
-The application of the modus plays a prominent part in the estate planning
process. Because of this fact, it is essential that both the estate planner and
the testator have extensive knowledge of the nature, application and legal
consequences of the modus. It is also important that the estate planner knows
about the different variations of the modus. The estate planner should also be
familiar with the types of modus that could be applied under different
circumstances. The estate planner should be well-acquainted with the legal
implications if the modus should be regarded as a nudum praeceptum or a
"nude bequest". Under these circumstances it will be invalid, and the will of
the testator will be defeated.
There is a close resemblance between the modus, fideicommissum, stipulatio
alteri, trust and a condition. These legal figures are similar with regard to their
characteristics and it is easy to confuse them with each other. In the past, the
confusion between these legal figures has lead to diverse judgments. The
courts have the tendency to place one legal figure on equal footing with
another similar legal figure and to neglect to draw a clear distinction between
them.
In order to remedy this turn of events, it is necessary that the estate planner
differentiate between each of the legal figures. The differentiation is achieved
by comparing the definition and characteristics of the stipulatio alteri,
fideicommissum, conditions and trust respectively, with the characteristics of
the modus. Throughout this examination reference is made to the opinion of
writers and case law to achieve an understanding of the legal problem. Once
this legal uncertainty is eliminated, it is possible to form a complete view of the
effect of the modus on estate planning.
