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Law of Succession A branch of private law, it comprises of those legal
rules or norms which regulate the devolution of a
deceased person’s estate
Testate occurs when succession is regulated by a valid will in
which the testator provides how succession to his or
her estate is to take place
Intestate When the testator dies without leaving a will at all or a
valid will
testamentary a document which defines any one of the three
writing essential elements of a bequest: (Ex Parte Davies)
(1) the property bequeathed
(2) the extent of the interest bequeathed
(3) the beneficiary
Ademption takes place if a testator voluntarily alienates the object
of a legacy in his lifetime, ie the legacy lapses
Adiation acceptance of a benefit
Repudiation refusal to accept a benefit
Amendment “deletion, addition, alteration or interineation”
Deletion a deletion, cancellation or obliteration in whatever
manner effected, excluding a deletion, cancellation or
obliteration that contemplates the revocation of the
entire will
Animus revocandi the intention to revoke a will
Armchair evidence the evidence which the court uses to place itself in the
position in which the testator was at the time of the
making of the will by paying attention to all the
relevant facts and circumstances which were known to
the testator
extrinsic evidence evidence outside the document itself, in other words
evidence of facts which do not appear from the
document itself
Ascendants ancestors of the deceased, ie mother, grandfather
Descendants lineal descendants of the deceased
bequest price when a legacy is bequeathed subject to the beneficiary
paying a stipulated price to the estate or a third
person
collation executor must, under certain circumstances, take
benefits given to certain heirs by the deceased during
his lifetime into account when distributing the estate
among certain beneficiaries
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
child's share 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 the number of spouses
cloven/cleaving where the estate rises to the deceased's parents and is
split (``cloven'') into two equal shares
collaterals persons related to the deceased through at least one
common ancestor or ascendant, for example brothers,
sisters, cousins
parental every group of parents and their descendants
constitute a parental
per capita inheritance in equal shares according to ones degree
in consanguinity. (per head)
representation when an heir in the direct line of descendants replaces
his ancestor as the heir
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
substitution takes place when a testator appoints a beneficiary to
inherit a benefit and at the same time appoints
another beneficiary to take the place of the first-
mentioned beneficiary. Substitution may take place
either:
1. In the alternative (direct substitution) {S2C} or
2. one beneficiary after another (fideicommissary
substitution).
competent any person over the age of 14 years who is competent
witness to give evidence in a court of law
testamentary capacity to make a will. Every person of the age of
capacity sixteen years or more may make a will unless at the
time of making the will he is mentally incapable of
appreciating the nature and effect of his act
Attestation clause a clause that appears at the end of a will in which it is
declared that all the parties were present and signed
in each other's presence (not compulsory)
Estate all assets and liabilities at the time of the testators
death.
The beneficiaries will only inherit the testators assets
and not her liabilities = different from Roman law.
Beneficiaries The parties upon whom the assets in a deceased
person's estate devolve. Beneficiaries may be either
heirs or legatees.
A legatee inherits a legacy which is a specific asset (for example
a house) or a specific amount of money (for example
R10 000).
CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any
manner or form is strictly prohibited and constitutes a breach of copyright.
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