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1 General introduction to the law of succession1.1 General Terminology
Executor: the person who administers the estate of a deceased.
Law of succession: a branch of private law. The 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.
The testator’s estate consists assets and the liabilities he had at the time of his death. Estate thus consists not
only of assets but also of any debts that the deceased had incurred before his death.
Testator’s beneficiaries inherit only the assets; his liabilities do not devolve. Liabilities form part of the estate.
Residue of the estate: 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 refuses to accept a benefit from a deceased’s estate (must repudiate expressly).
Adiation: When a beneficiary accepts a benefit from a deceased’s estate (assumed).
Legatee: inherits a legacy which is a specific asset or a specific amount of money
Heir: inherits the residue of the estate.
Inheritance: when the property which is left behind must go to an heir.
Succession: the devolution of the deceased’s estate.
Succession may take place in one of three ways, namely:
1. by virtue of a will (testamentary succession)
2. by virtue of the law (intestate succession)
3. by virtue of an ante nuptial contract
1.2 Death of the deceased
1.2.1 Moment of death
Moment of death not certain in SA law: problem is whether death should be defined as the termination of both
heart and brain activity, or whether brain death is sufficient. S v Williams indicates that brain death may be enough.
1.2.2 Presumption of death
High Court may grant an order presuming the death of a person upon which his estate can be administered.
Constitutes an exception to the rule that a testator must be dead before succession can take place.
Cases: Re Beaglehole
1.2.3 Persons who die in the same disaster
Commorientes: several people lose their lives in the same disaster.
Rule: if it cannot be established beyond doubt who died first, no presumption of either simultaneous death or of
survival exists. Thus courts will find that commorientes died simultaneously.
Cases: Ex parte Graham, Ex Parte Chodos Greyling v Greyling.
1.2.4 Further exception: Massing
Exception to the rule that a person must be deceased before succession can take place:
When two testators, in a joint will, mass their separate estates, or part of their estates, and jointly make provision
for the disposition of the massed estates as a single unit.
The joint will disposes of the surviving testator’s assets, and this disposition comes into operation on the death of
the first-dying testator although the surviving testator is still alive.
1.3 Wills, unilateral and multilateral juristic acts and donations
Juristic act: 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 (making of a will): 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 (conclusion of a contract, i.e. donation): a juristic act which is be performed only
through the cooperation of two or more persons.
2 Intestate succession
2.1 The law of intestate succession in general
Regulated by the 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 antenuptial contract, 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.
,2.2 Diagrams
M and V are married. X, the deceased, and B are children from this marriage. M also has a son (D) from his
previous marriage to Y. X is married to W and they have two of their own children (E and F) as well as an adopted
daughter, G. F is predeceased and has two children, H and I:
2.3 General principles and terminology
2.3.1 The groups into which a person’s blood relations can be divided
A person’s blood relations can be divided into three groups:
1. Ascendants
2. Descendants
3. Collaterals
2.3.1.1 Ascendants
Ascendants: ancestors of the deceased, i.e. mother, father, grandmother, grandfather (in other words, anybody
in the ascending (upwards) line of relationship.)
2.3.1.2 Descendants
Descendants – lineal descendants of the deceased (anyone in the direct line below the deceased).
Intestate succession states that no distinction is drawn between biological, adopted and extramarital children.
2.3.1.2.1 Adopted children
Section 1(4)(e): an adopted child shall be deemed a descendant of his or her adoptive parents and not a
descendant of his or her natural parents, except
1. in the case of a natural parent who is also the adoptive parent of that child or
2. who was, at the time of the adoption, married to the child’s adoptive parent.
2.3.1.2.2 Extramarital (illegitimate) children
Section 1(2): illegitimacy does not affect the capacity of a blood relation to inherit ab intestato from another
blood relation.
2.3.1.3 Collaterals
Collaterals: persons related to the deceased through at least one common ancestor or ascendant, for example
brothers, sisters, cousins.
Full-blood collateral: related to the deceased through both parents or two common ascendants.
Half-blood collateral: related through only one common ancestor.
2.3.2 Parental
Every group of parents and their descendants constitute a parental.
2.3.3 Stirps
Every descendant of the deceased who survives the deceased AND/ OR a predeceased descendant of the
deceased who leaves living descendants forms a stirps.
2.3.4 Succession per capita and succession by representation
The order in which the intestate heirs inherit from the deceased person:
1. per capita, or
2. by representation (per stirpes)
Heirs inherit per capita when they inherit equal shares according to the 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 person in the same degree of consanguinity, each inherits an equal share per capita.
An intestate heir inherits by representation when he, as an heir in the direct line of descendants, replaces his
predeceased ancestor. Representation also takes place when a descendant replaces an heir who has repudiated or
, who is unable to inherit. In other words, succession by representation means that a person who is related to the
deceased in a more remote degree of consanguinity is, for the purposes of intestate succession, treated as if he were
more closely related to the deceased, because he takes the place of another heir.
2.3.5 Substitution ex lege
Sections 1(6) and 1(7) provide for substitution ex lege:
Substitution takes place where 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.
Subsection 6: if a descendant of a deceased person who, together with the surviving spouse of the deceased, is
entitled to a benefit from an intestate estate, renounces his right to receive such a benefit, it will vest in the surviving
spouse.
Subsection 7: if a person is disqualified from being an intestate heir or if he renounces his right to be such an
heir, any benefit which he would have received shall devolve as if he had died immediately before the deceased died.
This means that he can be substituted by his descendants. However, this subsection is subject to the provisions of
subsection 6.
2.3.6 Degrees of consanguinity
To determine degree of consanguinity:
1. Direct Line: each generation counts as 1 degree, i.e. father -> son = 1 degree, grandfather -> father - > son
= 2 degrees.
2. Collateral Line: count the generations from the blood relation to the nearest common ancestor of that blood
relation and the deceased, and then down to the deceased.
There is one line from X up to the parents and one line down to D, therefore X and
D are related in the second degree. Y, the son of X, is related in the third degree to D.
2.3.7 Step relations
Step relations cannot inherit intestate from a deceased person since they are not blood relations of the deceased.
2.4 The rules of intestate succession
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 descendants, plus one.
Order: Spouse, descendants, spouse & descendants, parents, one parent & descendants, descendants of parents
(cloven), half-blood descendants of a parent, blood relation S,D,SD,P,OD,DP,HB,BR.
Rule 1: If a person dies intestate and is survived by a spouse but not by a descendant, such spouse shall inherit
the entire intestate estate.
Rule 2: If a person dies intestate and is survived by a descendant or by descendants but not by a spouse, such
descendant(s) shall inherit the entire intestate estate.
Rule 3: If a person dies intestate and is survived by a spouse as well as a descendant or descendants, the spouse
shall inherit either a child’s share of the intestate estate or R125 000 (whichever is the greater), and the
descendant(s) shall inherit the residue (if any) of the intestate estate.
Married in community of property: Spouse is entitled to half of estate before being divided between him/herself
and the descendants.
Married out of community of property: If accrual system is applied, the accrual is either added or deducted from
estate before the estate is divided. If the accrual system does not apply to the marriage, the surviving spouse simply
inherits either a child’s share or R125 000 (whichever is the greater), and the descendants of the deceased inherit the
residue.
Rule 4: If a person dies intestate and is not survived by a spouse or descendant but by both his parents, his
parents will inherit the intestate estate in equal shares.
Rule 5: If the deceased is not survived by a spouse or descendant, but by one of his parents and descendants of
his deceased parent, the surviving parent inherits half the intestate estate and the descendants of the deceased
parent the other half. If there are no such descendants, the surviving parent takes the entire intestate estate.
Rule 6: If a deceased is not survived by a spouse or by children, nor by either of his parents, his estate is cloven
into two equal shares – each share going to the side of one of his parents. From there, that half is divided between
the descendants of that parent. If the deceased therefore had half-brothers or -sisters, they will inherit through the
common parent’s side (with the half hand). The deceased’s full-blooded relations inherit through both parents (with
the whole hand).
Rule 7: If the deceased is survived only by descendants of one of his deceased parents who are related to him
through such parent alone, such descendants inherit the intestate estate. Half-blood relations in the second parentela
will therefore inherit to the exclusion of relations in the third parentela.
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