Class notes

Topic Notes for Semester II.

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Course
Law Of Succession

Institution
University Of Cape Town (UCT)

Included are notes on: testamentary succession (topic II), interpretation, rectification and variation of Wills (topic IV) and collation (topic V). Includes all relevant case law.

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Uploaded on November 4, 2021
Number of pages 4
Written in 2021/2022
Type Class notes
Professor(s) Rukshana
Contains All classes

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5. COLLATION.
5.1 Collation.
Meaning: collation is the process that provides that the inheritances of those heirs involved
in collation are increased beyond what the Will or the rules of intestacy would otherwise
have given them. As such, the inheritances of the other heirs are correspondingly reduced.
 In essence, the inheritances of some of a deceased’s heirs are adjusted to consider the
fact that they received substantial benefits from the deceased during their lifetime.
 Collation does not increase the actual value of the deceased’s estate – money is not
added but adjusted.
The rationale: it is the parents’ intentions for their children in inherit equally.
How does collation occur?
Those who are subject to collation, or other beneficiaries who are aware thereafter, must
come forward. Then:
 When the executor is not aware, the person who is entitled to benefit from collation
will insist.
 When the executor is aware, they are obliged to give effect to collation subject to a
waiver by the beneficiaries or an exemption by the deceased.
- Subject to a waiter = beneficiaries are aware that their sibling, for instance, received
an advance on their inheritance but do not care.
Who participates in collation?
General rule = only descendants of the testator, who are heirs, who would have qualified
to inherit had the testator died intestate.
Questions to ask:
1. Is the person a descendant of the testator?
2. If yes, are they inheriting a legacy or would they have inherited had the testator died
intestate?
- Therefore, a descendant who inherits as a legatee does not have to collate in respect
of a legacy as such descendant inherits under a particular title.
Testator remits = the testator grants exemption from the duty to collate. Thus, the testator
is saying that despite one child receiving more than the others, it is their intention for the
estate to not be adjusted.
Beneficiary remits = similar as above.
Categories of people who may or may not be subject to or benefit from collation:
 Brother of the deceased = no: the brother is not a descendant, therefore cannot claim
or benefit from collation. What is left in the Will is what he is entitled to,
 Deceased’s grandchildren = look at wording.

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