HEPLS UNDERSTAND THE LAW OF SUCCESSION IN SOUTH AFRICA
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Module
Law of Succession (IURI313)
Institution
University Of South Africa (Unisa)
"Law of Succession Notes: A Valuable Resource for Legal Studies
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IURI 313
LAW OF SUCCESSION
SUMMARIES
STUDY UNIT 1
The scope and application of the law of succession in South Africa –
It forms part of national law – material as well as formal - private law and comprises of the legal
rules that determines what should happen to a person’s estate after their death.
It can take place in 3 ways:
1. Testate succession – with a valid will
2. Intestate succession – no valid will/ invalid one
3. i.t.o. a contract or agreement
Where the Law of Succession fits into the South African legal system –
The material rules of Law of Succession states what happens to a person’s estate after death,
who the beneficiaries are and what they will inherit. It also determines the different rights and
duties of beneficiaries.
The formal rules describing the process by which a deceased estate is liquidated are referred to
as the administration of estates. Although the office of the Master of the HC is involved the rules
still operate in the private sphere.
The dual nature of the Law of Succession –
One can say that the South African Law of Succession consists of 2 main branches –
the common law of succession that comprises:
testamentary (common law rules and Wills Act 7 of 1953)
intestate succession rules (common law rules and Intestate Succession Act 81 of 1987)
the customary law of succession that comprises of only:
intestate succession rules (Intestate Succession Act 81 of 1987, Reform of Customary
Law of Succession and Regulation of Related Matters Act 11 of 2009 and Customary law
rules).
When do you know which branch of law to apply?
Testate law of succession:
Prior to 1994 – S23 of the BAA:
Black persons could not dispose of (a) house property; and (b) quitrent land by means of a will.
They could dispose of (a) family property; and (b) other property that is not house property by
means of a will.
Common law testate succession applied.
Today ;
If there is a valid will (with no other stipulation to the contrary), the common law of testate
succession applies.
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Intestate law of succession:
Prior to 1994 – S 1(4)(b) of the Intestate Succession Act: Estates subjected to S 23 of the BAA
(i.e. intestate estates of black persons), fell outside the provisions of the Intestate Succession
Act – had to devolve according to the rules laid down in special regulations under the BAA
based on inter alia the form of marriage and matrimonial property system
If deceased concluded a civil marriage in community of property – estate will devolve according
to the common law.
If deceased concluded a customary marriage – customary laws would have applied.
Today: Bhe case
S 1(4)(b) of the Intestate Succession Act and S23 of the BAA are declared unconstitutional and
invalid.
From 15 October 2004 – Intestate Succession act applies to all intestate estates.
2009 – RCLSA – the estate of any person who is subject to customary law that does not
devolve i.t.o. a will, must devolve according to the Intestate Succession Act read with the
RCLSA.
Terminology?
Estate
Law of succession – comprises legal rules that control the transfer of those assets of a
deceased that are eligible for distribution to beneficiaries, or those assets of another
person over which the deceased has the power of disposal.
Testator – a natural person who makes a will in which they bequeath an estate in the
form of bequethable assets.
Beneficiaries – the person to whom a testator’s estate is transferred.
Heir – a beneficiary who inherits the testator’s entire estate, a portion thereof or the
residue thereof.
Legatee – a beneficiary who inherits a specific asset or a specific sum of money.
Will – a unilateral, voluntary juristic act contained in a document which complies with the
formalities required by law, and in which the testator gives instructions pertaining to what
must happen to their estate after their death.
Testate law of succession – comprises of those legal rules or norms that regulate the
devolution of a deceased person’s estate on one or more persons according to the
testator’s wishes as expressed in a will.
Intestate law of succession – the legal rules or legal norms that determine how
succession should take place in cases where a testator fails to regulate succession on
death by way of a valid will or a pactum successirium contained in an antenuptial
contract.
Freedom of testation – the freedom of a person to dispose of their estate as they please.
Pactum successorium – a contract in which the parties attempt to regulate the devolution
of the entire estate or part of the estate of one or both parties.
Administration of estates
Executor – the person who is charged with the administration of a deceased estate; the
person who winds up the estate.
Trust
Fideicommissum
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Accrual – the right which co-heirs or co-legatees have of inheriting the share that their
co-heir or co-legatee cannot or does not wish to receive.
Collation – under certain circumstances, a descendant who received certain benefits
(either property or money) from a testator during the testator’s lifetime has to collate
(bring in) such benefit (or its value) before he or she may inherit from the estate of the
testator to ensure a fair distribution of the deceased estate among all the descendants.
Adiation – the acceptance of a benefit from the estate of the testator or deceased either
under testate or intestate succession.
Repudiation – the rejection of a benefit or refusal to inherit a benefit from the estate of
the testator.
Estate massing – when 2 or more testators mass the whole or parts of their estates into
one consolidated economic unit for the purpose of testamentary disposal and the
disposal becomes effective on the death of the first-dying spouse.
Amanuensis – someone who signs the will on behalf of the testator.
Usufruct – occurs when ownership is bequeathed to one person, but the right to use,
enjoy and take the fruits of the property is bequeathed to another. The latter is called the
usufructuary and the owner is called the dominus, remainderman or nude owner.
Dies cedit – Delatio – the day will come. The time when a beneficiary obtains a vested
right to claim delivery of the bequeathed property unconditionally (whether or not the
exercise of this right is delayed until some future date which is certain to arrive).
Dies venit – the day has come. The time at which a beneficiary’s right to claim delivery of
bequeathed property becomes enforceable or the day when delivery of the property has
to take place.
Dies cedit and Dies venit
Implications:
Absolute bequest – “I bequeath my farm to my son X” – vesting of the right shall occur at the
time of the testator’s death.
Suspensive condition – “I bequeath my farm to my son X if he receives his LLB-degree” –
vesting of the right will be delayed (should X outlive the testator but die before receiving his LLB
– no rights were vested (nothing will be transferred to X’s estate).
Term – “Ii bequeath my farm to my son X, but he will only receive it when he is 21” – right will
vest at the testator’s death, but dies venit will be delayed. Should X outlive the testator, but die
before he reaches the age of 21, then X’s vested right will form part of X’s estate.
List and discuss the ground rules of succession and illustrate your discussion with
relevant examples?
1. The testator must have died.
This is a prerequisite in both common and customary law
The rule was confirmed in Estate Orpen case
Exceptions: Presumption of death
Estate massing
Commorientes (number of people killed in the same disaster)
Atkins case – Mr and Mrs Atkins merge estates and creates a trust (massing)
If their daughter dies without children, she can bequeath 20% to someone
of her choice – she bequeathed it to her husband. The daughter died
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