Law (criminal, private, persons, family, roman, constitutional)
Institution
Stellenbosch University (SUN)
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Law of succession
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LAW OF SUCCESSION - Learning unit 6:The Administration of Deceased Estates
LAW OF SUCCESSION - LEARNING UNIT 5: Joint/Mutual Wills, Adiation/Repudiation/Election, Massing of Estates and Accrual, Succession by Contract; Interpretation and Rectification of Wills
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LAW OF SUCCESSION
Law of succession: The totality of the legal rules which control the transfer of those assets of the
deceased which are subject to distribution among beneficiaries, or those assets of another over which
the deceased had the power of disposal.
The rules of law of succession determines how the qualified beneficiaries are identified and how the
scope of the respective benefits is established.
Law of succession in societal context:
1. Can only function successfully in a system that recognises the right to private property
2. Economic function: It regulates the transfer of wealth upon a person’s death. This is supported
by the freedom of testation.
3. Social function: Associated with maintaining and protecting the family as a social unit.
- The law of succession is influenced by the development/ social change of families.
- E.g. Higher divorce rates, increase in the number of cohabiting relationships, recognition
of previously unprotected relationships, and advanced techniques regarding fertilisation
and births, such as IVF.
-
Freedom of testation: A person may, within certain limitations, decide on the distribution of his/her
assets at the time of such person’s death.
There are limitations on freedom of testation based on economic considerations as well as
considerations based on the social function.
TESTATE AND INTESTATE SUCCESSION
Deceased: The person who had died.
Testator: The deceased who left a valid will disposing of his/her assets.
Will: A unilateral declaration of the wishes of the testator, which sets out how the testator’s assets are
to be allocated to the beneficiaries after his/her death.
Law of testate succession: The deceased has a validly recognised will in which he/she has indicated
their beneficiaries.
Wills Act 7 of 1953 deals with:
- Capacity to make a will
- Formal requirements for making and amending a will
- Certain rules on who is qualified to inherit
Content of the will – this is covered by the common law (also limitations). An antenuptial contract may
contain testamentary provisions.
Law of Intestate succession: The deceased does not have a will or an antenuptial contract containing
provisions for inheritance or does have a will which did not meet the prescribed formalities to make it
valid (inoperative).
The Intestate Succession Act 81 of 1987 contains firm rules which deal with the redistribution of the
assets. Freedom of testation is irrelevant here.
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,ADMINISTRATION OF ESTATES
The executor is in control over what happens between the time of death and the final transfer of the
assets. The assets are first used to settle debts and meet other obligations. The assets that can then be
divided are thus the assets subjects to distribution.
Administration of the deceased estate: The process by which the estate’s debts are paid and the assets
transferred to the beneficiaries in terms of the Administration of Estates Act 66 of 1965.
CONTENTS OF WILLS AND FREEDOM OF TESTATION
Freedom of testation and its restrictions
The contents are left mainly to the discretion of the individual testator. In South Africa, the testator’s
wishes in disposing of his/her assets will be carried out except in as far as the law places a restriction
on this freedom of the testator.
Some of the restrictions on the freedom of testation are placed on the testator in accordance with the
common law. Restrictions are mentioned in the common law and certain legislation. A provision in a
will will not be executed if it is:
1. In general, unlawful
2. Contra bonos mores
3. Impracticably vague
4. Impossible
A person’s minor children have a common-law claim for maintenance against his/her estate upon
death.
Certain legislation also restricts the testator’s freedom of testation:
a. Pension Funds Act – certain benefits payable by a pension fund are excluded from the estate
of the deceased.
b. Immovable Property (Removal or Modification of Restrictions) Act – empowers the court to
alter or amend restrictions placed by a will on immovable property.
c. Trust Property Control Act – authorises the court to amend the provisions of a trust or even
terminate the trust.
d. Maintenance of Surviving Spouses Act – determines that the surviving spouse may under
certain conditions claim an advance for the maintenance from the deceased’s estate.
These restrictions are based on social or economic considerations.
Influence of the Constitution on freedom of testation
Sec 25(1) – No one may be deprived of property except in terms of general application, and no law
may permit arbitrary deprivation of property. (Property clause)
This provision guarantees the right to private property, it also includes a person’s rights to dispose of
his/her property during their lifetime as well as at the time of their death. Therefore, section 25(1)
guarantees the institution of succession as well as the freedom of testation that supports it.
In re BOE Trust Ltd 2013 (3) SA 236 (SCA), the SCA accepted this interpretation, saying that if freedom
of testation was not guaranteed, the government would be able to infringe a person’s property rights
after his/her death. It would allow the state to benefit from someone’s death.
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,The court, in the above case, linked the principle of freedom of testation to the fundamental right to
human dignity as guaranteed by the Constitution. Not to give due recognition to freedom of testation
will ‘fly in the face’ of the principle of human dignity. This right allows the living, and the dying, the
peace of mind of knowing their last wishes will be respected.
Will the fundamental right’s in the Bill of Rights have any influence on the principle of freedom of
testation? Section 9 of the Constitution, the equality clause, will have to be considered; no person may
directly or indirectly discriminate unfairly against anyone on the basis of certain considerations, such
as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour and sexual orientation.
These provisions of the Constitution may be applied in certain circumstances in a dispute between
individual legal subjects (‘horizontal operation’). However, two different situations need to be
distinguished for the purposes of the law of succession:
- Case of complete disinheritance
- Case of a condition being attached to its testamentary bequest
A complete disinheritance
This entails a complete disinheritance of a person based on one of the considerations mentioned in
section 9(3). E.g. Testator disinheriting his/her son because of the latter’s sexual orientation. The right
of the testator to freedom of testation conflicts with the right of the beneficiary to equality, the right
not to be discriminated against. It is suggested that the testator’s right to freedom of testation should
be given preference; therefore, the son will not succeed if the will is challenged on constitutional
grounds. Reasons for this:
a. An opposite conclusion would reduce the principle of freedom of testation to a fiction, it will
be lost.
b. No one has a fundamental right to inherit. A potential beneficiary has at most spes or hope.
c. An opposite conclusion will lead to almost impossible practical difficulties.
King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC)
Only male descendants will inherit the farms, complete disinheritance of the females.
Fideicommissum
Grounds challenged: females have been unfairly discriminated against by this will.
This should be allowed
o Freedom of testation out ways the right to equality.
o No right to inherit.
Harper and Others v Crawford NO and Others 2018 (1) SA 589 (WCC)
“Only my natural and not adopted children can inherit”.
Adopted children challenged the validity of the provision on the constitutional ground.
Happened in the context of a trust, not a will.
Court used succession arguments to deal with the issue.
Same outcome as the King case.
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, Attaching conditions to testamentary bequests
A person has been included as a beneficiary, but a condition has been attached to the bequest. There
is a possibility that such a condition can be linked to a consideration that is mentioned in section 9(3)
of the Constitution
E.g. Testator has included his/her son as beneficiary, but makes bequest dependent on the son joining
a political party. “My daughter inherits R100 000, if she abandons the Christian faith, she will forfeit
this money.”
Bursaries administered by universities – these are all in the trust context – it has a public element,
which is slightly different from wills in that it is not considered to be a complete disinheritance.
“From the trust income bursaries must be paid to white law students at SU.”
What if it was for black students or females – most likely yes, because they suffered previous
discrimination and need to be uplifted.
Minister of Education and Another v Syfrets Trust Ltd NO and Another 2006 (4) SA 205 (C)
Only white Christian males were allowed to be recipients.
The court deleted provisions in the will that amounted to unfair discrimination.
Ex Parte BOE Trust Ltd NO 2009 (6) Sa 470 (WCC)/ In re BOE Trust Ltd 2013 (3) SA 236 (SCA)
There is a possibility that conditions such as these could be declared invalid on constitutional grounds.
General testamentary institutions
A number of testamentary institutions have developed that occur regularly in wills.
Freedom of testation and the revocation and amendment of wills
A consequence of the principle of freedom of testation is that the testator can revoke or alter his/her
will at any time before death. Only exception: the case of a beneficiary accepting a benefit in terms of
a joint or mutual will in which there has been a massing of estates.
Pactum successorium / pactum de succedendo: Succession by contract. A contract in terms of which
the parties attempt to arrange the disposal of the whole or part of the assets of one or both parties.
This principle is invalid, contra bonos mores. This is against the right of freedom of testation.
Two manifestations that are not regarded as invalid:
- Donatio mortis causa
- Testamentary provisions contained in an antenuptial contract
VESTING AND ENFORCEMENT OF RIGHTS
The ‘falling open’ of the estate: ‘dies cedit’ and ‘dies venití’
Delatio: The moment the estate of the deceased ‘falls open’.
The beneficiary’s claim against an executor arises the moment the estate of the deceased ‘falls open’
with regard to a particular beneficiary’s benefit.
Dies cedit: The day the beneficiary’s right becomes vested. (The day has arrived)
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