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Summary Law of succession notes
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LAW OF SUCCESSIONChapter 1- Introduction
DEFINITION: Law of succession is 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 has the power of disposal. (Van der Merwe & Roland)
Law of succession controls the transfer of assets at the death of a person (estate= assets and
liabilities) (assets = after debts, other obligations, admin costs)
Part of private law
GENERAL
Law of succession in a societal context:
1. Private ownership- L.O.S cannot exist without private ownership. (right to private property)
2. Economic function- regulates transfer of wealth upon death of someone
3. Freedom of testation- person may (within limitations) decide on the distribution of their
assets at the time of such person’s death
4. Social function- mainly focused on maintaining & protecting the family as a social unit
ARTICLE:
THE SOCIAL AND ECONOMIC FOUNDATIONS OF THE LAW OF SUCCESSION BY MJ DE WAAL
Basic function of the law of succession
- Inheritance and transfer of interests in property
- Stimulate creativity, hard work, initiative and productivity which may benefit others
- Individual responsibility for those that have to provide for defendants
- With private property: demonstrate freedom from state and society
- Chief function: continuation of economic life despite death of people
- Support of family, social function
- Customary law: family perpetrated and property distributed among survivors
Social factors influencing law of succession
• Linked with family worthy of protection and perseveration
• Basic needs provided for via estate of deceased- drawing circle of potential as small as possible and various restrictions
on testate
• People of different societies and different groups within same society eg. wealth people more inclined to make wills,
increase of will-making with increase of age in anticipation of death
Economic function
• Person allowed to dispose freely of property by will
• Economic importance of freedom of testation (“FOT”) and economic considerations that may influence exercise thereof
• Will - instrument - transfer of wealth
• Langbein: “family wealth transmission”
• Changes in nature of wealth, previously used to be land but now are financial, human capital (skills and knowledge),
education as an investment
• Education of children - intergenerational wealth transfer
,• Enhancement of life expectancy; less money to transfer because it’s consumed. Only seen mostly in middle and upper
class, where in SA these classes don't make up the majority so can’t say the same
Freedom of testation
• Manifestation of private autonomy within law of S
• Foundation of law of succession, protects freedom in our law
• Strict formalities required for execution of will
• Revocation allowed until death
• Effect must be given to provisions of will
• Freedom can’t be contractually restricted
• Free testamentary expression
Restrictions on freedom of testation
• Prevent abuses of freedom and ensure members of deceased’s family get share of estate - based on economic
considerations
• Social considerations: legitimate or extra-marital minor children have common law claim for support/maintenance
against estate
• Surviving spouse in terms of the Maintenance of Surviving Spouse Act has maintenance claim against deceased spouse
• Testamentary conditions which are illegal, immoral, against public policy or void
• Economic considerations Immovable Property Act, Trust Property Control Act, Subdivision of Agricultural Land Act
(prohibits subdivision of AL into uneconomic units), Minerals Act (prevent uneconomic subdivision of mineral rights)
Law of intestate succession: basis, function and reform
• Deceased’s natural heirs, fundamental consideration is a social one
• Set out in Intestate Succession Act, draws intestate heirs circle as small as possible
• Simple and uncomplicated system
Intestacy in a cohabiting and divorcing society
• “Spouse”; only person married lawfully to deceased @ time of death
• Word extended with case law developments
Intestate succession and customary law
• Wider notion of family accepted in CL
• No distinction made on ground of sex
• Primogeniture not followed (first-born male and his descendants given preference)
• Extra-marital child not disadvantaged
Influence of social factors [from lecture]
a. Family
b. Indigenous communities - property is often communal, freedom of T is very rare, law of intestate plays more
significant role - type of community has influence on law of succession
c. Wealth or absence thereof - has influence on law of S, more wealth, more likely to make a will = wiling making
increases with increase of wealth
d. Age - older one gets, more inclined to make a will
e. Changes in society - increasing divorce rate and increase in cohabitation instead of marriage, increase in life
expectancy
Influence of economic factors:
Changes in nature of wealth - trad. land was manifestation of wealth, now financial assets and human capital (knowledge,
education can be seen as an investment)
Intestate succession
— “cohabiting and divorcing society” - who qualifies as spouse?
1. —
Indigenous societies (customary law), rule of male
NB PARTS IN ARTICLE
i. Basic roles of law of succession
, ii. Influence of societal factors (family, indigenous communities, wealth, age,
changes in society)
iii. Influence of economic factors (changes in nature of wealth)
TESTATE AND INTESTATE SUCCESSION
Testate succession:
o DEF Testator: Deceased died with a valid will
o DEF Will: unilateral declaration of the wishes of the testator, setting out how the
testator’s assets are to be allocated to the designated persons/ organisations after death
o NB legislation!! Wills Act 7 of 1953 will must comply with these formalities
o BUT freedom of testation still applies
Intestate succession:
o No will/ invalid or inoperative will/ No ANC making provision for inheritance
o Deceased… NOT referred to as testator here
o NB legislation!! Intestate succession Act 81 of 1987
o Firm rules freedom of testation is irrelevant
ADMINISTRATION OF ESTATES
DEF: process by which the estates debts are paid and the assets transferred to the
testate/intestate beneficiaries after testator’s death.
Assets in estate are first used to settle outstanding debts and meet obligations. Remainder
are subject to distribution among heirs.
Main actor = executor under supervision of master
1. Administration of Estates Act 66 of 1965
CONTENTS OF WILLS AND FREEDOM OF TESTATION
Freedom of testation and its restrictions:
1. Common law
o Cannot be generally unlawful
o Cannot be impracticably vague
o Cannot be contra bones mores: against public policy
o Cannot be impossible
o Minors also have common-law claim against estate for maintenance
2. General legislation
o Pension Funds Act 24 of 1956 – certain benefits payable by pension fund excluded
from estate
o Immovable Property Act 94 of 1965 – empowers courts to alter/amend restrictions
placed by a will on immovable property
o Trust Property Control Act 57 of 1988 – authorizes court to amend provisions of a
trust or even terminate it
, o Maintenance of Surviving Spouses Act 27 of 1990 – under certain circumstances,
surviving spouse may claim an advance for maintenance from the estate of
deceased spouse
3. Influence of the Constitution on freedom of testation
o Freedom of testation cannot be detached from fundamental rights guaranteed
o Court said freedom of testation is guaranteed in the constitution
Section 25(1): property clause guarantees right to own and dispose of
private property during lifetime and at death
Section 10: right to human dignity
Section 36: limitations clause (must be taken into account) restrictions on
FOT can be justified in terms of this.
Section 9(3) + 4: equality clause limits freedom on testation
o BOE Trust Ltd 2013 (3) SA 236 (SCA)
Linked the principle of freedom of testation to every person’s fundamental
right to human dignity as guaranteed in the constitution
Complete disinheritance:
o Entails a complete disinheritance on the basis of one of the considerations
mentioned in S9(3)
o EXAMPLE “Because of his political convictions, my son inherits nothing”
o Testators right to freedom of testation will be given preference and son would not
be successful if he challenged this on constitutional grounds
1) Freedom of testation would be reduced to a fiction if this was disallowed
2) No one has the fundamental right to inherit
3) Practical considerations (how would the court deal with this situation?
Who would be allowed to challenge the said condition?)
o SEE SUMMARY OF King and Others NNO v De Jager and Others 2017 (6) SA 527
(WCC)
“only male decedents will inherit the farm”
Female decedents challenged on constitutional grounds that they have been
discriminated against on grounds of gender
Court decided that he condition cannot be challenged due to freedom of
testation
Read para 56-82
o Harper and others V Crawford NO and Others 2018 (1) SA 589 (WCC)
“only my natural and not adopted children can inherit”
Court decided that he condition cannot be challenged due to freedom of
testation
Attachment of conditions:
o Occurs when a person is included as a beneficiary in the will but a condition is
attached to the bequest
o The conditions attached could be declared invalid on constitutional grounds
o EXAMPLE “my daughter inherits R100 000. If she abandons the Christian faith,
she forfeits the money”
Infringes on constitution section 9. NOT ALLOWED
, o “from the trust income bursaries must be paid to white students at Stellenbosch
university”
If challenged in court the white condition will be removed.
If it were “female students” or “black students” it would be allowed due to
previous disadvantages
o Minister of education and another V Syfret Trust LTD NO and Another 2006 (4) SA
205 (C)
Will to create trust, UCT trust fund but only for white males who are
Christian. Court removed these restrictions as it was against public policy
Revocation, amendment of wills is allowed at any time before death
o Only exception is if beneficiary is accepting a benefit in terms of a joint/mutual will
where there is a massing of estates
Succession by contract: cannot enter into succession by contract because it’s against public
policy; should be able to have freedom of testation but you're bound by contract
VESTING AND ENFORCEMENT OF RIGHTS
The moment when the estate falls open = Delatio
Delatio = dies cedit
Dies cedit moment when the beneficiary’s right vests (against executor)
o Right can never vest before death EXCEPT in cases where a presumption of death
certificate is issued
Dies venit when the beneficiary can enforce the right against the executor (always
precedes dies venit) [after administration of estate is complete]
Vesting rights in the law of testate succession
The arrival of dies cedit and venit depends on the intention of the testator
Dies cedit and venit arrives TOGETHER = pure bequest [no condition]
o E.g.- “my daughter X inherits my farm”
Dies cedit and venit is POSTPONED IF = suspensive condition. [dies cedit arrives when
she obtains the LLB]
o E.g.- “I bequest my farm to my daughter X if she obtains an LLB degree”
Dies cedit happens at death but dies venit is postponed by time clause
o E.g.- “I bequeath my farm to my daughter X, but she only gets it when she turns
21” = dies [time clause]
Vesting rights in the law of intestate succession
Rights of intestate heirs vest when the person dies. As does dies venit occur.
If person dies with a valid will that later becomes inoperative: vesting of intestate heir’s
rights occurs only when the will become inoperative. Dies cedit and dies venit occur only at
this later point in time
Harris V Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A) pg. 209
o In his will he created a trust all my assets goes to the trust. The trustees must pay
all the income generated from the trust to my spouse. If wife dies, capital of trust
must be paid to children. If children die, capital must go to brother. If brother dead,
must go to brother’s kids.
o Testator died in 1943. Everything started and wife enjoyed income for many years.
, o Brother died in 1979 and spouse was still alive.
o By then the testator and spouse never had kids and neither did the brother.
o Questions: who will inherit the capital. Must determine intestate heirs. Which
moment do we use to determine who the heirs will be.
Testator death
OR once they realized his will would be inoperative
o 1979 was the conclusion
Roman law was considered—if a testator dies without a will then moment of
death is relevant. Dies with a will that becomes inoperable then the later
date is relevant.
Dutch authors were considered- reached same conclusion
o SA LAW- case: Union government (minister of finance) V Oliver 1916 AD 74, 90.
“in determining who are the heir’s ab instestato [intestate heirs] of a
deceased person regard must be had to the date of his death”
Problems related to vesting of rights
Vesting automatic?
o Crookes V Watson 1956 (1) SA 277 (A) confirms that rights vest automatically
o Why NB? beneficiary always has the right to accept the benefit (adiate) or reject
it (repudiate) – no specific formalities
o Vesting is basically automatic UNLESS beneficiary repudiates it.
o If beneficiary repudiates = retrospective in force [accepted that no right has ever
been vested]
o Problem- Wessels V De Jager 2000 4 SA 924 (SCA)
“[Beneficiary] gets only a power and not a right…. He obtains a right only
once he accepts the benefit”
court didn't consider practical difficulties that would result from this
decision, this judgment can be ignored
LEGAL POSITION IN RESPECT OF DECEASED ESTATE
Roman Law principle of universal succession (succession in universitatem) at the death of
the deceased, heir becomes owner automatically + immediately
WAS REPLACED BY:
SA Law: system of executorship. Effect: succession not mode of acquiring ownership. NB!! At death
the heir acquires only personal right (claim) against executor.
o Executor must transfer the bequeathed assets to beneficiary once administration is
complete. Beneficiary only owner after transfer complete.
Greenburg v estate Greenburg 1955 (3) SA 361 (A) Position in interim period: no final
answer in our law.
o Executor–becomes owner in an official capacity. (executor cannot enjoy asset, just
protect until it is administered)
BASIC REQUIREMENTS FOR SUCCESSION TO OPERATE
, Death of the deceased. Exception: presumption of death and order to administer estate.
Beneficiary alive at delatio. Exception: nasciturus fiction, testator can state in his will that
even the unborn/not yet conceived grandkids must inherit. if beneficiary dies before
delatio then no rights can vest in him/her.
Sequence of death. Relevance: commorientes
o Cannot inherit mutually from one another
o Sequence of death must be determined by medical evidence and if such evidence
not available then courts will accept that they died simultaneously.
Ex parte graham 1963 (4) SA 143 (D)
o Testator (T) - woman of 50 years, made a will and in the will she benefited her
adopted son (S) but also made provision for substitute which would be the mother
(M) - direct substitution
o T and S took a crashed all the passengers were killed
o Question is: who inherits from T? S or M?
o Brings us to sequence of death Relevance is M can’t inherit if Son died after T
o RDL & RL presumption that if there is a father and son, son dies first. Reference to
ages depending on before/after puberty can no longer make use of presumption
o Modern law - try to gather medical evidence. What happens if evidence shows
nothing? Accept (not presume) that deaths were simultaneous and S not an heir
o Conclusion: mother inherits estate because no evidence that S survived testator
**Class assignment 1: ANSWER
T has died. (requirement 1 is met). A had also died therefore the 2nd requirement was not met.
Reference Ex Parte Graham. Last paragraph is most important: court examines facts to see if there
are any evidence to support conclusions that the deaths did not occur simultaneously
Chapter 2- Intestate succession
INTRODUCTION
Relevant when:
o Person did not leave wholly VALID will
o Valid will but not all assets are covered in the will
o When condition in will is not fulfilled/ is repudiated without provisions made
Nemo pro parte testatus pro parte intestatus decedere potest- rule NOT applicable as in SA person
can die partly testate and partly intestate.
Vesting of rights in intestate succession
o Person dies without will heirs rights vest at death
o Harris case [discussed above]: ruled that if will becomes inoperative later, vesting
takes place at time will becomes inoperative
Historical background: read. Not NB. (pg 14-15)
DEFINITION OF CONCEPTS
, BLOOD RELATIONSHIPS
o Ancestors (ascendants): those from whom person descends [e.g.- parents/
grandparents]
o Descendants: those who descend directly from person [e.g.- children,
grandkids/great grandkids]
o Collaterals: not ascendants or descendants. Can be half/full blood [e.g.- siblings,
uncles, aunts etc.]
Full-blood: two ancestors in common
Half-blood: one ancestor in common
DEGREES OF RELATIONSHIP: between blood relations of the deceased and the deceased
o The direct line
Degree of relationship between deceased is equal to the number of
generations between the ancestor and the deceased
or the descendant and the deceased
o The collateral line
Degree of relationship between deceased is equal to the number of
generations between the blood relations and the nearest common ancestor,
PLUS, the number of generations between such ancestor and the deceased
PARENTELA: particular parental group and its descendants
o 1st - deceased and their descendants
o 2nd- deceased’s parents and their descendants
o 3rd- deceased’s grandparents and their descendants
o 4th -deceased’s great grandparent and their descendants
STIRPS: surviving child of deceased OR predeceased child survived by descendants (all who
can be intestate heirs). predeceased child and their heirs only form one stirp.
REPRESENTATION: if the place of an heir who cannot/ does not wish to inherit is taken by
one of his/her descendants who does qualify.
o Per stirpes = first and second parentela
o Per capita= after second parentela
THE INTESTATE SUCCESSION ACT 81 OF 1987
S 1(1)(a)-(f): provisions of how person’s intestate estate will be divided
S 1(2) -(7): certain related provisions
APPLICATION OF THE ACT
GENERAL MEANING OF THE WORD SPOUSE
Narrow: the survivor of lawful civil law marriage I.T.O Marriage Act 25 of 1961 between one
man and one woman
Muslim marriages
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