Class notes
Law of Succession Lecture Notes & Summaries
- Course
- Law Of Succession (PVL2003H)
- Institution
- University Of Cape Town (UCT)
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Succession LawLecture 1 – 12/02/20
What is it? Legal rules that regulate the devolution of a deceased
person’s estate upon one or more persons.
Rules:
o Who is entitled to succeed the deceased?
o Extent of benefits
Administrative process of deceased estates
Is it sterile and formalistic?
o Impacts extended family, those who choose not to marry,
same-sex couples, extramarital children, adopted children,
polygamous marriage spouses etc.
o Need to look at this law in a broader context, as it affects
multiple spheres of society.
Succession takes place in 3 ways:
o Testate succession
o Intestate succession
o Contract/agreement – successio ex contractu/ pactum
sucessorium
Lecture 2
Deceased Estate
o Not a legal person
Individual, company or entity
Legal rights
Can sue/besued
Own property
Enter into contracts
o Cannot sue or be sued in its own name
o Executor must sue in his representative capacity
o Who owns the property between the death of the deceased
and transfer of ownership?
Estate cannot own property = not a legal entity
Does the heir own the property?
Problematic = Universal Succession
o Does not exist in SA law = makes any heir
responsible for liabilities of the estate
, (not fair for children to bear your
burdens)
BUT: Heir does have VESTED PERSONAL RIGHT
o Against executor to transfer ownership =
only then does the personal right
become a REAL RIGHT
o HEIR DOES NOT OWN BEFORE TRANSFER
Executor will own the assets in his official
capacity during the admin period = LIMITED
OWNERSHIP (S102 of Deeds Reg. Act)
o BUT: SA law is not set on this =
Greenberg v Estate Greenberg
Facts: Husband and wife had joint will; husband dies; 3 sons and wife
surviving; property to go to sons and wife to have usufruct until her
death; sons died (had two descendants) = WHO OWNS THE PROPERTY?
Court held: Vesting took place upon testator’s death, subject to a
usufractory interests in favour of the widow = Beneficiary does not
obtain ownership of the property immediately on death of testator, but
obtains a vested right to claim delivery of the property from the
executor at some future date.
THEREFORE: Executor owns in official capacity during admin; heir
obtains vested personal right on death of testator.
- After estate has been administered (AND IF ASSETS > LIABILITIES)
= Executor will transfer assets (earliest moment of ownership)
The Executor
o Admin. Estate Act
o Types: 1) Executor Testamentary (nominated in a valid will,
Master will appoint); 2) Executor Dative (testator did not
nominate, so Master will choose)
o Estate < R250 000 = Executor not chosen – somebody else
to dispense (S18(3) of AEA)
o Fiduciary position: Must act in good faith
Will pay security fee if they act contrary
o Power of Assumption: Allows for executor to appoint co-
executor
, o If the wrong distribution has been made?
Section 50 with S23(5) of AEA = Can recover
If they refuse to return = Executor pays security
fee
o If executor refuses to institute proceedings to recover
estate debts or to make claims:
Option 1: Remove executor from office (Cumes v
Estate Cumes)
Application to HC
Option 2: Beneficiary can sue, but executor can be
cited as the nominal defendant
Du Toit v Vermeulen: Outlines general rule
Gross v Pentz: Look at general rule, and
distinguish between 1) representative action
(gen. rule must follow = executor goes to court
on behalf of estate) and 2) direction action
(when executor acting in bad faith,
beneficiaries can act in their own interest to
seek relief)
Option 3: Executor can cede the right of action to the
beneficiary (Elizabeth Nursing Home v Cohen And
Other)
Adiation
o Acceptance of a benefit from the estate
o No formalities req = executor will transfer benefit
Inferred from beneficiary’s conduct
o BUT: adiation will be req. in writing when an obligation is
attached to the benefit
Repudiation
o Rejection of a benefit or refusal to inherit
o Must be done in writing = no benefit
o Why? Personal reasons, onerous condition attached to
inheritance, reverse a massing (two/more testators mass
the whole/part of their estates)
o Effect:
Varies according to provisions of the will
Provision for substitutes to inherit = direct
substitution
Doctrine of Election:
o Benefit holds some kind of obligation
, o Beneficiary has to elect/choose to accept the benefit
Accept = accept obligation
CANNOT ADIATE PARTIALLY
Repudiate = receive nothing
o ONLY APPLIES IF A BURDEN HAS BEEN PLACED ON THE
BENEFICIARY
Partial/conditional repudiation:
o Not allowed if heir is put to an election on account of a
condition and there is no contrary intention in the will
o Allowed if NO CONDITION and the will does not prohibit it
Can an insolvent person repudiate an inheritance?
o Wessels v De Jager
When an inheritance becomes due and owing to an
insolvent, he acquires competence to inherit, but not
a right.
Beneficiary may repudiate an inheritance.
This does not cause prejudice to creditors.
If beneficiary does not expressly or impliedly
accepted inheritance = does not form part of his
estate.
Insolvent has limited capacity = retains right to accept
or reject the inheritance.
Right does not pass to insolvent’s trustee
Death
o Traditional approach: A person is dead when the heart stops
beating and the lungs stop working.
o Modern medical approach: A person is dead when there is no
longer brain activity. (USED NOW)
o S v Williams (1986): When a person is kept alive artificially by
means of respirator, its eventual disconnection is not in legal
terms the act which causes death.
o Avoided question of whether or not brain death, in line with
medical science, should amount to legal death.
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