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Law of Succession notes
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I have summarised law of succession notes from the year 2021. They have all been colour coded and laid out in a neat and concise manner. It covers all material
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Wednesday, 17 March 2021Such Law Wk 1
1.What is the Law of Succession?
•Legal rules which regulate the devolution of a deceased person’s estate upon one or more
persons.
• Rules that tell us what to d with someones money when they die and what we should do
with that money
2.What are the Rules of Succession?
•Who is entitled to succeed the deceased? Who can inherit from the deceased
• Are there instances where only certain groups of people can receive money?
•Extent of the benefits they are to receive. Once we know who can inherit, we must look at
the rules to determine to what extent they can inherit. What are they entitled to receive.
Administrative process of deceased estates
Sterile or formalistic?
• Is succession simply focused on applying the legislation. But we shouldn’t place succession
in a box.
There are categories that the Law accommodates:
•Extended family?
•Persons who choose not to marry?
•Same-Sex couples?
•Extramarital children?
•Adopted children?
• More than one spouse?
Main sources of Law that deals with succession
•Wills Act 7 of 1953.
•Intestate Succession Act 81 of 1987.
•Maintenance of Surviving Spouses Act 27 of 1990.
•Trust Property Control Act 57 of 1988.
•Administration of Estates Act 66 of 1965.
•Recognition of Customary Law of Succession and Related Matters Act 11 of 2009.
•Common law and Case law.
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There are three ways in which Succession can take place
1.Testate Succession.
2.Intestate Succession.
3.Contract/Agreement – Successio ex Contractu/Pactum Sucessorium
Testate
• Either a valid will. They stipulate what will happen to the property and money and who
should get it
• There is also a a invalid will in which there is something wrong with the original will but
this is condoned by the Wills Act s2(3)
Intestate
• There is no will
• There is either no will or it is invalid and can not be condoned by the court
Succession Wk 2
The Deceased estate
• A deceased estate consists of the assets and liabilities of a deceased person at the time of
his or her death. The estate therefore consists not only of property, but also of any debts that
the deceased incurred before his or her death
• Not a legal person.
• Cannot sue or be sued in its own name.
• Executor must sue in his/her representative capacity a
*Legal Person
•Individual, company or entity
•Has legal rights
•Can sue or be sued
•Can own property
•Can enter into contracts
• N.O means that the person is acting on behalf in an official capacity (the executor)
Ownership of assets
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• Does the estate inherit the assets?
- No the estate can’t own it because it isn’t a legal person
• Nobody owns the assets?
• Heirs own the assets?
- It may not have been transferred into their name. But this would mean that the moment
someone dies then the heirs immediately become the owners of the property.
- This is known as Universal succession. But this isn’t recognized in SA law. While it allows
you to obtain the assets and ownership, the heirs are also the liability and debts of the
estate.
• In SA, the period between the death of the person and the transfer of ownership, the only
right the heirs possess is a vested personal right. The heir would have a right to claim the
assets from the executor. Only once the heir becomes the owner then the right changes
from a personal right to a real right
Two schools of thought regarding the ownership of assets (pre transfer)
1) Estate vests in the Master
2) The executor has bare dominium or bare ownership. Here the ownership is limited
- See Section 102 of the Deeds Registry Act
GREENBERG V ESTATE GREENBERG 1955 (3) SA 361 (A)
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The three sons died. So the question is did the property now transfer to the wife or the
grandchildren upon the death of the three son.
Court held:
• Vesting took place upon the testator's death, subject to a usufructuary interests in favour
of the widow.
• The three sons will not the full owners yet when they died, therefore they did not have
the ability to transfer ownership to their sons
•The beneficiary does not obtain the ownership of the property immediately on the death of
the testator, but instead obtains a vested right to claim delivery of the property from the
executor at some future date.
See 364G-H – 365A-E.
Legal Position of the executor
•The Administration of Estates Act (AEA)
•Executor: “a person who is authorised to act under letters or executorship granted or signed
and sealed by the Master”.
Types of executors:
1.Executor Testamentary
•Nominated by testator in a valid will.
2.Executor Dative
Testator did not nominate an executor or person dies without a will. The Master will appoint
an executor
•If the estate is less than R250 000 = Can appoint someone who is not an executor.
(Section 18(3) of the AEA)
• The person appointed is in a Fiduciary position.: they must act in good faith.
• Power of Assumption: many testators will include the POA in their will, the executor can
appoint a co-executor to assist.
• The power of assumption means that an executor, guardian or curator, nominated in a will,
can appoint another person to assist him
Problem:
• What if an executor makes a wrong distribution?
•Section 50 read with section 23(5) of the Administration of Estates Act.
What if an executor refuses to institute proceedings to recover estate debts or to make claims:
Option 1
Remove the executor from office.
(Cumes v Estate Cumes 1950 (2) SA 15 (C)).
Option 2
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