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Summary Private Law 272 - Succession Law Summaries
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PVL2602 Exam Pack 2023: Comprehensive Guide for Exam Preparation and Assignment Completion in the Law of Succession in South Africa (Questions with detailed answers)
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Topic 1: Introduction to Succession lawPRIVATE LAW 273 NOTES
Law of Succession 2021
University of Stellenbosch
Sune-Mari Koekemoer 23628235
, Topic 1: Introduction to Succession law 0
TOPIC 1: INTRODUCTION TO SUCCESSION LAW
GENERAL
What is succession?
When a person dies, everything that remains of their assets after debts, other obligations and
administrative costs have been reclaimed, passes to the people qualified to succeed the deceased.
Rules of the law of succession determines…
1. How the qualified beneficiaries are identified
2. How the scope of the respective benefits are established
Broader social context of the law of succession:
• Succession is only possible in a system that recognises private property
• This is only possible in a capitalist economy
Law of succession fulfils an economic function and a social function:
• Economic function: transfer of deceased’s estate. Supported by freedom of testation
o Freedom of testation: any person may, within certain limitations, decide on the
distribution of their assets at the time of their death
• Social function: maintaining and protecting the family as a social unit
TESTATE AND INTESTATE SUCCESSION
Testate succession
• Valid will: unilateral declaration of the wishes of the testator
o How assets are allocated to the designated persons or organisations upon their
death
• Important aspects:
o Capacity to make a will
o Formal requirements for making/amending a will
o Rules on who is qualified to inherit
• Wills Act 7 of 1953
• Antenuptial contract = testamentary provision
Intestate Succession
• Dies without leaving a valid will OR will has been left inoperative
• Assets are divided according to the rules of law of intestate succession
• Intestate succession act 81 of 1987
ADMINISTRATION OF ESTATES
• Administration of the deceased estate
• Only assets are inherited
• Not all assets: debts and other obligations are first settled
• Assets subject to distribution are the assets that CAN be divided
• Done by executor in terms of the Administration of Estates Act 66 of 1965
CONTENTS OF WILLS AND FRE EDOM OF TESTATION
, Topic 1: Introduction to Succession law 1
FREEDOM OF TESTATION AND ITS RESTRICTIONS
• Contents are left to discretion of testator = FREEDOM OF TESTATION
o Testator’s wishes in the disposing of their assets will be carried out in as far as the
law places a restriction on this freedom of the testator
• Restrictions are based on SOCIAL or ECONOMIC considerations
• Common law restrictions
o General unlawfulness
o Contra bones mores
o Impractically vague
o Impossible
▪ Minors have a common law claim for maintenance
• Legislative restrictions
o Pension funds act 24 or 1956
▪ Certain benefits payable by a pension are excluded from estate of deceased
members of such fund
o Immovable property act 94 of 1965
▪ Empowers the court to amend restrictions placed by a will on immovable
property
o Trust property control act 57 of 1988
▪ Empowers court to amend provisions of trust / terminate trust
o Maintenance of surviving spouses act 27 of 1990
▪ A surviving spouse may under certain circumstances claim an advance for
maintenance from the estate of a deceased spouse
THE INFLUENCE OF THE CONSTITUTION ON FREEDOM OF TESTATION
• S 25(1) of the constitution = property clause
o Right to private property
o Dispose of property in life time
o Principle of freedom of testation!
• S10: right to human dignity
• S36: limitation clause allows for various restrictions i.t.o. testation
• Do the fundamental rights in the BoR have an influence on the principle of freedom of
testation?
o S9: equality clause – these provisions may be applied in appropriate circumstances
in a dispute between individual legal subjects (horizontal operation)
COMPLETE DISINHERITANCE
• Out-and-out disinheritance of someone on the basis of one of the considerations mentioned
in s 9(3)
• Freedom of testation conflicts with the beneficiaries’ right to equality
• Freedom of testation takes preference!
o Reduce the freedom of testation to fiction
o No one has a fundamental right to inherit
o Opposite conclusion would lead to practical difficulties
ATTACHING CONDITIONS TO TESTAMENTARY BEQUESTS
• Such conditions could be linked to s 9(3) of the constitution
• Could be declared invalid on constitutional grounds
, Topic 1: Introduction to Succession law 2
GENERAL TESTAMENTARY INSTITUTIONS
• Legacy and the inheritance
• Conditions and the dies
• The modus
• Direct and fideicommissionary substitution
• Usufruct and the trust
• Massing of estates, accrual, collation
FREEDOM OF TESTATION AND THE REVOCATION AND AMENDMENT OF WILLS
• Testator can revoke or alter their will at any time before death
o Exception: beneficiary accepting a benefit in terms of a joint will where there has
been a massing fo estates
• Pactum successorium (A pactum successorium is a contract whereby two or more parties
intend to regulate the process of succession regarding the deceased's estate (as a whole or
in part) is contra bones mores
• Valid:
o Donation mortis causa
o Testamentary provisions in an antenuptial contract
VESTING AND ENFORCEMENT OF RIGHTS
DIES CEDIT AND DIES VENIT
• Delatio/dies cedit: moment the estate of the deceased ‘falls open’ and the beneficiary can
claim against an executor (moment when the rights become vested)
• Dies venit: moment the right that came into existence becomes enforceable (can never
precede dies cedit)
• No beneficiary can acquire a vested right BEFORE death (except w/ presumption of death)
o Before death, a potential beneficiary has a spec / expectation of benefit
VESTING OF RIGHTS IN THE LAW OF TESTATE SUCCESSION
• Dies venti and dies cedit depends on the intention of the testator in their will
• Pure bequest
o Dies vedit is not postponed and thus dies cedit coincides with it
• Suspensive condition
o Dies cedit WILL be postponed
o Beneficiary dies before fulfilling condition, nothing can be transferred to their
estate (dies venit is postponed)
• Postponement
o Dies cedit at time of death
o Dies venit at later date
o Enforcement of a beneficiary’s right to a dies (time clause)
• Related to particular legal institution (trusts)
VESTING OF RIGHTS IN THE LAW OF INTESTATE SUCCESSION
• Dies cedit and dies vedit at time of person’s death
• Dies with valid will, but will later becomes inoperative, dies cedit and dies vedit occur once
will is declared inoperative.
, Topic 1: Introduction to Succession law 3
PROBLEMS RELATED TO VESTING OF RIGHTS
• A beneficiary’s right vests automatically when the moment of vesting occurs
• Beneficiary may adiate or repudiate
• Adiation holds only a benefit (no succession in universitatem)
• If a beneficiary dies before being notified of the benefit, this does not mean that no right
has been vested = right falls into their estate and their heirs may exercise the choice
• Should repudiation happen, it will have retrospective force
o i.e. it will be as if no right had ever vested in the beneficiary
LEGAL POSITION IN RESPECT OF THE DECEASED ESTATE
• A beneficiary never becomes owner of inherited assets immediately upon the death of the
deceased
• Beneficiary can, at most, acquire a claim against the executor of the estate upon the death
of the deceased
o Upon completion of the process of administration of the estate, the executor must
transfer the assets to the beneficiary
o Only upon transfer of the assets will the beneficiary
BASIC REQUIREMENTS FOR SUCCESSION
• Deceased must be dead
o Presumption of death = court makes order for division of estate
• Beneficiaries must be alive
o Nasciturus fiction: interests are kept in abeyance
• Person dies before estate falls open, no rights vest in them
• Commorientes
o People who die simultaneously cannot inherit mutually
o SA law requires medical evidence be found to declare who died first, but if there’s
none, the court will accept that both people died simultaneously
, Topic 2: The Law of Intestate Succession 4
TOPIC 2: THE LAW OF INTESTATE SUCCESSION
INTRODUCTION
The law of intestate succession determines who a person’s heirs are in as much as that person did
not do so by way of a will or in any other legally valid way.
How does intestacy occur?
1. Does not leave will
2. Will is wholly or partially invalid
3. Leaves will that doesn’t dispose of whole estate
4. Certain conditions in the (valid) will are not fulfilled or benefits have been repudiated and
no provisions have been made for substitution
If a person dies without leaving a valid will, the rights of their intestate heirs vest at the time of
death.
OR
The identity of the intestate heirs are determined at the time that the will becomes inoperative.
HISTORICAL BACKGROUND
(refer to pgs 14 and 15)
DEFINITIONS OF CONCEPTS
THE INTESTATE SUCCESSION ACT 81 OF 1987
(1) If after the commencement of this Act a person (hereinafter referred to as the 'deceased') dies
intestate, either wholly or in part, and-
(a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
, Topic 2: The Law of Intestate Succession 5
(b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate
estate;
(c) is survived by a spouse as well as a descendant-
(i) such spouse shall inherit a child's share of the intestate estate or so much of the
intestate estate as does not exceed in value the amount fixed from time to time by the
Minister of Justice by notice in the Gazette, whichever is the greater; and
(ii) such descendant shall inherit the residue (if any) of the intestate estate;
(d) is not survived by a spouse or descendant, but is survived-
(i) by both his parents, his parents shall inherit the intestate estate in equal shares; or
(ii) by one of his parents, the surviving parent shall inherit one half of the intestate estate
and the descendants of the deceased parent the other half, and if there are no such
descendants who have survived the deceased, the surviving parent shall inherit the
intestate estate; or
(e) is not survived by a spouse or descendant or parent, but is survived-
(i) by-
(aa) descendants of his deceased mother who are related to the deceased through
her only, as well as by descendants of his deceased father who are related to the
deceased through him only; or
(bb) descendants of his deceased parents who are related to the deceased through
both such parents; or
(cc) any of the descendants mentioned in subparagraph (aa), as well as by any of
the descendants mentioned in subparagraph (bb),
the intestate estate shall be divided into two equal shares and the descendants
related to the deceased through the deceased mother shall inherit one half of the
estate and the descendants related to the deceased through the deceased father
shall inherit the other half of the estate; or
(ii) only by descendants of one of the deceased parents of the deceased who are related to
the deceased through such parent alone, such descendants shall inherit the intestate
estate;
(f) is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood
relation or blood relations of the deceased who are related to him nearest in degree shall inherit
the intestate estate in equal shares.
EXPOSITION AND APPLICATION
MEANING OF SPOUSE
• Spouse = survivor of a lawful civil law marriage
• In Muslim marriage…
o Daniels v Campbell: includes a party to a monogamous Muslim marriage
o Hassam v Jacobs: includes multiple spouses in a polygamous Muslim marriage
, Topic 2: The Law of Intestate Succession 6
• In Hindu marriage…
o Govender v Ragavayah: party to monogamous Hindy marriage
• African customary law…
o Bhe v Magistrate, Khayelitsha: Intestate succession act would be applicable to all
intestate estates that were previously regulated by S 23 of BAA
▪ Deceased survived by multiple spouses in terms of ACL
▪ RCLSA essentially confirms the legal position as it applied after the Bhe
case and the repeal of the BAA
• Same sex…
o Gory v Kolver: spouse = partner in a same-sex life partnerships in which partners
have undertaken reciprocal duties of support (before Civil Union Act 17 of 2006)
o Volks v Robinson: persons of the opposite sex would not enjoy the same protection
o Civil Union Act: normal effects of a marriage will flow from a civil union
DECEASED SURVIVED BY ONE/MORE SPOUSE, NOT DESCENDANTS
• Spouse inherits whole estate
• More than one spouse: each spouse inherits equally
DECEASED SURVIVED BY DESCENDANTS, NOT SPOUSE
• If deceased is survived by descendants, not spouse, the descendants inherit entire estate.
• Division takes places per stripes and representation is allowed
Solution:
, Topic 2: The Law of Intestate Succession 7
C inherits half of the estate and F and G, who represent predeceased A, each inherit a quarter (the
remaining estate is thus divided between them) of the estate. SO: the estate that would have gone
to A is divided between F and G.
SURVIVED BY ONE/MORE SPOUSES AND DESCENDANTS
• Spouse/s inherits child portion / amount that relevant Minister determines by way of notice
in GG (R250 000). Two amounts are compared = spouse/s inherit greater amount.
• Child’s portion: dividing monetary value of estate by a number equal to number of stripes
plus one (for one spouse) or plus amount of spouses.
• Representation is allowed.
• Take notice of matrimonial property regimes!
, Topic 2: The Law of Intestate Succession 8
note: E and V were married in community of property. Joint estate equalled R900 000.
Solution:
• At e’s death, property is divided, and V gets half of the amount = R450 000. V does not,
however, inherit this amount, in terms of matrimonial property law. E’s divisible estate
thus amounts to R450 000. A child’s portion would be equal to R150 000 (R450 000 divided
by 3 [2 stripes + 1 wife]). R250 000 is greater than a child’s portion, thus V would inherit
R250 000 and the remaining R200 000 would be divided between the stripes. C inherits
R100 000, and the remaining R100 000 is divided between F and G, who each inherit
R50 000.
Accrual system:
During the marriage, E’s estate showed an accrual from R600 000 to R800 000. V’s estate showed
an accrual from R100 000 to R200 000.
Solution:
• E’s estate showed a R200 000 increase, whereas V’s estate showed a R100 000 increase. In
terms of matrimonial property law V, who’s estate showed the smaller accrual, has a claim
for half of the difference of the accrual, which is R50 000 ([R200 000 – R100 00] divided by
2). THUS the amount of E’s estate that is divisible is R750 000 (R800 000 – R50 000). A
child’s portion of E’s estate would equate to R250 000 (R750 000 divided by 3 (two stripes +
1 wife). V thus inherits R250 000, and the residue of R500 000 is divided among E’s
descendants. B inherits half (R250 000) and D and F each inherit a quarter (R125 000).
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