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Lecture notes PVL2602 - Law Of Succession (PVL2602)
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Lecture notes PVL2602 - Law Of Succession (PVL2602)
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1ST
LAW OF SUCESSION – SUMMARY 2014 1 SEMESTER
Introduction to law of succession:
When a person dies he or she leaves behind not family/friends but more importantly for our purposes rights and duties
that have to be finalized. The law of succession deals with the finalization of the debt and assets the deceased leaves
behind.
Law of succession – comprises those legal rules or norms which regulate the devolution of a deceased person’s estate
upon one or more persons. Thus the law of succession is concerned with what happens to a deceased person’s estate
after his death.
Deceased – is the person who has died and left behind an estate
Estate – a testator’s estate consist of both the assets and the liabilities he had at the time of his death. The
estate therefore consists not only of assets but also of any debts that the deceased had incurred during his
lifetime
Legatee – inherits a specific asset (legacy)
Residue of estate – refers to that part of the deceased’s estate which remains after the payment of funeral
expenses, administration costs, tax, the deceased’s debts and the legacies
repudiation – heir or legatee may refuse to accept a benefit from a deceased estate
Adiation – heir or legatee accepts benefits from a deceased estate.
Succession – may take place in one of 3 ways:
1. Testamentary succession - in accordance with a will which the testator regulates the succession.
2. Intestate succession – through the operation of the law of intestate succession, where the deceased
did not leave a will – estate is intestate and is governed by the laws of intestate succession.
3. Pactum successorium – in terms of a contract or agreement – contractual succession -anc is the
only contract in which a person may regulate succession to the assets in his or her estate.
DEATH OF DECEASED
Moment of death – succession can only take place if person is deceased.
Presumption of death – onus is on person who asserts person is dead to furnish proof of same.
RE: BEAGLEHOLE
Persons who die in the same disaster – a beneficiary can inherit only if he/she survives the deceased. When
people die in the same disaster and it is not possible to determine who died first, the court will find that they died
simultaneously. EX PARTE GRAHAM
WILLS, UNILATERAL AND MULTILATERAL JURISTIC ACTS AND DONATIONS:
Juristic act – is an act which is intended to create or alter rights and/ or obligations and it is an act to which the law
attaches at least some of the consequences envisaged by the acting party or parties.
Unilateral juristic act – for example making of a will is performed by the activity of only one person. It is only one
person’s actions that establish a will and it is only this person’s intention that is contained in the will.
Multilateral juristic act – such as the conclusion of a contract, it is a juristic act which is performed only through the
cooperation of 2 or more persons – example donation
, 2
If the will consists of more than one page, the testator must sign at the end of the wording on the last
page, and he must further sign or acknowledge his signature on the preceding pages in the presence of
the same two or more witnesses, who are present at the same time. In Bosch v Nel the court held
expressly that it is not necessary for the testator to sign in the presence of the witnesses, as long as he
acknowledges in their presence that the signature on the will is his signature. The testator may sign the
page preceding the last page anywhere on the page. The witnesses must sign the will in each others
presence and in the presence of the testator. The Act does not prescribe where they must sign, but this
provision is normally interpreted to mean that the witnesses must sign the last page of the will
anywhere on that page. They need not sign the preceding pages.
2 No. A witness need not know the content of a will or even that he is witnessing a will. He only needs
to know that he is witnessing the testator's signature (Sterban v Dixon).
3 The Wills Act requires that the witnesses should sign the will. The Act does not prescribe where they
must sign. Usually this provision is interpreted to mean that they should sign the last page of the will.
Normally the witnesses will sign the will at the end of the last page, but in Oosthuizen v die Weesheer it
was held that the will was valid although the witnesses had signed at the top of the last page. The
witnesses need not sign all the preceding pages of the will.
4 The testator has to sign at the ``end'' of the will Ð that is, at the end of the wording/ body of the will.
5 No. In Bosch v Nel the court held expressly that it is not necessary for the testator to sign in the
presence of the witnesses, as long as he acknowledges in their presence that the signature on the will
is his signature.
6 A witness to a will must comply with the following three requirements:
1 He or she must be 14 years or older.
2 He or she must be competent to give evidence in a court of law.
3 He or she must be able to write.
7 An attestation clause is a clause that appears at the end of the will in which it is declared that all the
parties are present and have signed in each other's presence. When drafting a will, it is common
practice to insert an attestation clause, in which it is expressly stated that the will was signed by the
testator in the presence of the witnesses and that the witnesses signed in the presence of one another
and the testator. No attestation clause is required by law. An attestation clause has evidential value
only, that is, it can be of value only in that it constitutes evidence that the required formalities have been
complied with.
CHAPTER 2 – INTESTATE SUCCESSION
Regulated by intestate succession act 81 of 1987. The law of intestate succession identifies the heirs to a
deceased estate when the deceased has failed to regulate the devolution of his or her estate by will or anc or
where it is impossible to carry out the wishes of the deceased because the beneficiaries are unable to inherit, do
not wish to inherit or are predeceased. It is possible for a person to die completely intestate or only partly
intestate.
Diagrams to represent lineage: page 11
double horizontal line = married persons
horizontal level = same generation
single line descending from parent = children/descendents
dotted line = adoption
letter crossed out = predeceased
, 3
Ascendants – ancestors of the deceased – mother, father, grandparents. – straight downward line
Descendants – lineal descendant of the deceased – direct line below deceased
Adopted children – deemed descendants of adoptive parents and not of natural parents, except in the
instance where the natural parent was also the adoptive parent.
Extramarital children – illegitimacy does not affect the capacity of blood relation to inherit (ab intestate)
from blood relation.
Collaterals – persons related to the deceased through at least one common ancestor or ascendant – egg
brother, sister cousins.
Full blood collaterals – related through both parents
Half blood collaterals – related through one parent – PAGE 15 OF STUDY GUIDE EG.
Succession per capita – by representation, heir inherit per capita when they inherit equal shares
according to law of intestate succession on the ground of the degree of consanguinity in which they stand
to the deceased. If there are more than one person related to the deceased in the same way they inherit
an equal share – per capita
Stirps – every descendant of the deceased who survives the deceased and or a predeceased descendent
of the deceased who leaves a living descendent forms a stirp/stirpes
Substitution ex lege – takes place were an heir inherits in the place of an heir who was supposed to
inherit in the first place is unable to inherit or repudiates his benefit.
Degrees of consanguinity:
1. father and son = first degree
2. grandfather and grandson = second degree
3. each generation = one degree
Rules of intestate succession:
1. If a person dies intestate and is survived by a spouse ONLY such spouse inherits entire intestate estate.
2. if a person dies intestate and is survived by a descendent or descendents ONLY such descendent or
descendents shall inherit entire intestate estate
3. If person dies leaving both a spouse and descendents the spouse shall inherit either a Childs share of the
intestate of R125 000 (whichever is greater) and descendants will inherit the residue if any. – child’s
share is calculated by dividing the value of the intestate estate by the number of children of the
deceased who have either survived him or have predeceased him but are survived by their
descendents plus one.
4. if a person dies without leaving a spouse or descendents but has both his parents – they will inherit
intestate estate
5. If a person dies without leaving a spouse of decedents but only leave one parent and descendents of his
deceased parent, surviving parent inherits half estate and other half is divided amongst descendants of
his or her predeceased parent. If no descendents then the surviving parent takes entire estate.
6. if survived by only descendents of his mother who are related to him through her only as well as
descendents of his deceased father related to the deceased through him only (i.e half brothers and half
sisters) intestate estate is divided equally amongst them. Cloven/cleaving – mean that the estate rises to
the deceased parents and is split into 2 equal shares.
7. if the deceased is survived only by descendents of one of his deceased parents who are related to him
through such parent alone , such descendents inherit the intestate estate
Marriage in community of property –
Where married icop – they own joint estate. Each spouse has half share in estate. The surviving spouse will
therefore take their half share and inherit a child’s share or R125 000 whichever one is greater.
, 4
Marriage out of cop –
With accrual – principles of accrual will be applied to the intestate estate before it is divided. Amount of accrual is
either deducted or added to the intestate estate before estate is divided
Partial intestacy – where deceased dies partly testate and partly intestate – the amount which a surviving spouse
takes in terms of the will is ignored in calculating the intestate amount to which the surviving spouse is entitled
Person dies without leaving intestate heirs – a person may die intestate without leaving any person capable of
inheriting from him ab intestate, executors now convert entire estate to money and pay proceeds into the
guardian’s fund.
IMPORTANT – STUDY GUIDE PAGE 29 TO 34 Q&A
CHAPTER 3 – FORMS OF WILLS AND TESTAMENTARY FORMALITIES
Testate or testamentary succession occurs when succession is regulated by a valid will in which the testator
provides how succession to his estate is to take place.
EX PARTE DAVIES – courts decided
Testamentary writing is a document which defines any one of the 3 essential elements of a bequest:
1. the property bequeathed
2. the extent of the interest bequeathed , ownership , usufruct ,fideicommissum etc
3. the beneficiary
Both will and codicils are therefore testamentary writings.
FORMALITIES WHEN A TESTATOR SIGNS HIS WILL WITH HIS OWN SIGNATURE
One page will – signature of testator at the end is required with 2 or more competent witnesses present at
the same time. Witnessing is witnessing not the document or contents but that the testator signature. A
witness may not sign by making a mark.
More than one page – all pages to be signed by testator and 2 or more competent witnesses.
Competent witness – is any person over the age of 14 whom is competent to give evidence in court. Must
be able to “sign” must be 14 years or older, must be able to write and competent to give evidence in
court.
Attestation clause – is a clause that appears at the end of a will which is declared that all parties were
present and signed will in each others presence.
Only a testator can sign will by making a “mark” – thumbprint or cross
Formalities when testator makes a mark – commissioner of oath should be present
1. Certificate is to be attached when the testator sign with a mark of when another person signs on
behalf of testator.
2. testator signing with a mark the will must comply with section 2(1)(a)(v) – commissioner of oath
must append certificate to a will
3. Content of certificate – commissioner of oath certifies he has satisfied himself as to the identity of
the testator, that the will so signed is the will of the testator. Certificate may be append anywhere
to the will.
PAGES 50 TO 53 Q&A
The power of the court to order the master to accept a document as a valid will:
The court can order the master to accept a will as being valid although it does not comply with all the formalities
for the execution of a will, as long as the court is satisfied the document was drafted or executed by a person who
has died in the meantime and intended the document to his or her will.
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