Class notes
Rukshana Parker's lecture notes summarized.
- Course
- Law Of Succession (PVL2003H)
- Institution
- University Of Cape Town (UCT)
this is a compilation of all the second semester lectures notes and a bit of textbook filling.
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Topic 1:Capacity to benefit under a will:
- The beneficiary’s ability to inherit
General Rule:
Juristic persons are competent to inherit (only testate), and all-natural persons, born or unborn,
are competent to inherit testate or intestate regardless of their legal capacity.
Persons Capable of Inheriting
A Natural person irrespective of their age, mental status, or legal status, have the capacity to
inherit, AND
A natural person is capable of acquiring a VESTED RIGHT to an inheritance.
- A right to claim the inheritance, and then a right to get the inheritance
Don’t confuse a VESTED right to an inheritance and a right to enjoy the inheritance
You can have a VESTED right to an inheritance, but whether you can enjoy that inheritance is
a separate concept.
Minors or persons of unsound mind might have a vested right to an inheritance, but their
right to enjoyment of that inheritance might be limited.
What person is capable of inheriting AND enjoying that inheritance?
- Someone who is a major (over 18 years of age), who is of sound mind and who is not
insolvent and who does not repudiate an inheritance =this person will acquire a vested right
AND unrestricted enjoyment of the inheritance.
- In order to also enjoy the inheritance, a person must tick all these boxes.
Examples of persons who might have limited capacity to inherit:
1. A MINOR BENEFICIARY:
Someone under the age of 18 can inherit but their ability to enjoy that inheritance is limited
When a minor inherits a property, that property will be administered for the minor by the
Minor’s guardian.
The office of the Master of the High Court exercises a supervisory function over the
administration of this inheritance
If the minor has no appointed guardian , then the enjoyment of the property will be regulated
by a court-appointed guardian or curator.
There is a difference between how movable and immovable property inherited by the minor is
administered.
Movable:
A minor’s capacity to exercise ownership of that movable property is limited.
The property e.g., the car, will not be delivered to the minor
The minor won’t take full control of that car.
, Instead, the movable property will be given to the guardian, and the guardian will ensure
that the property is used for the minors benefit or that the property is kept safe for later
use by the minor.
On the death of the testator, the minor acquires the VESTED right to that property .
If the minor dies after the deceased, the property will form part of the minor’s estate
(despite the minor only having limited capacity to exercise ownership of the movable
property.)
- So, the property will dissolve on the heirs of the minor, unless the testator stipulated in
his/her will, what should happen to the property if the minor dies after the testator.
Money is also a movable property
- If money is left to the minor, the minor acquires a vested right to the money BUT
- It will not be physically given to the minor
- But the money will also not be given to the guardian for a very practical reason. (There is a
risk for wasteful expenditure
- The money is put into the guardian’s fund. That guardian’s fund is then administered on
behalf of the minor.
- The minor’s guardian is allowed to withdraw money from the fund to take care of the
minor’s maintenance, BUT
- Before the guardian can withdraw money from the fund, it must be shown that, that money
is for the benefit of the minor.
- Master must be satisfied that this money is being withdrawn in the minor’s interests .
- The amount withdrawn must not exceed R250 000.
- Anything below R250 000 the Master’s office is happy to assess the situation and maybe
allow the money to be paid out.
- If the guardian wants to withdraw more than R250 000, then the High Court will need to
approve of this.
Immovable:
Immovable property is not transferred to the minor’s guardian
- It is immediately registered in the minor’s name in the Deeds Registry
- Even though the title deed registered in the minor’s name, this does not mean that the
minor can sell, cede, or mortgage the property.
- So, the minor’s right to enjoy the property is still limited in this way.
Administration of Estates Act: the minor’s guardian will administer the property for the minor
until they become a major.
If the guardian wishes to sell or mortgage the property, they must obtain authorisation
If the value of the property mortgaged does not exceed the amount determined by the
Minister (R250 000), then the consent of the Master’s office is sufficient.
But if the value exceeds the R250 000 amount, then there must be an order of the High
Court. (Satisfy the High Court that it is being mortgaged for the benefit of the minor.)
2. AN UNBORN CHILD:
The capacity of the unborn child to inherit under a will:
, Aka NASCITURUS FICTION
Unborn child is capable of inheriting
It has the capacity to inherit if the 3 requirements are met
Requirements:
1. Child conceived at the time of the devolution of the benefit
2. The inheritance must be to the advantage of the unborn child.
3. The child must be subsequently born alive.
When we talk of intestate inheritance, we apply the requirements more generally
- In that instance, the inheritance or the capacity to inherit in intestate succession devolves on
the unborn child at the time of the death of the testator.
- In that instance, if the child is conceived at the time of the deceased’s death and is
subsequently born alive, they will inherit the intestate inheritance.
However
When we talk of testate inheritance, we must look at section 2D(1)(c) of the Will’s Act
- 2D(1)(c) “any benefit allocated to the children of a person, or to the members of a class of
persons, mentioned in the will, shall vest in the children of that person or those members of
the class of persons who are alive at the time of the devolution of the benefit, or who have
already been conceived at that time and who are later born alive.”
- This provision is there because in testate succession there are instances where a benefit
devolves either conditionally or unconditionally.
3. EXTRAMARITAL CHILDREN:
The law does not treat extramarital children differently
Section 1(2) Intestate Succession Act, and section 2D(1)(b) of the Will Act
- Expressly states that extramarital children must be allowed the same status as children born
within wedlock when it comes to testate and intestate succession.
4. PERSONS OF UNSOUND MIND:
A person of unsound mind has the capacity to inherit however the enjoyment of the benefit
is limited.
If a beneficiary is declared to be of unsound mind, a court-appointed curator bonis will
administer the inheritance on their behalf.
If there is no pre-existing court order of unsound mind, or if the court does not grant the
application, then the beneficiary, irrespective of their behaviour, will be treated as a person
of sound mind.
When making the application, the onus is on the applicant to prove on a balance of
probabilities that the beneficiary is unable to administer the property in a sensible manner.
What about a prodigal?
- A prodigal is someone who is careless with their money
- Not of unsound mind but they have a limited ability to deal with their finances , so someone
also needs to be appointed to assist them with their financial affairs.
, 5. INSOLVENTS:
A Person whose liabilities outweigh their assets
If a person has been declared insolvent, they retain their capacity to inherit but any property
that they own falls into the insolvent estate and must be administered by the trustees for the
benefit of the creditors.
Their enjoyment of the inheritance is limited.
But they still have the capacity to inherit.
The property will most likely have to be sold and the creditors paid in order of preference
mentioned in the Insolvency Act
Therefore, in some wills = a testator stipulates in their will that if any of their heirs become
insolvent or provisionally insolvent at the time of the devolution of the inheritance, the heir
concerned will forfeit the inheritance in favour of a named substitute or a trust.
- This protects the testator from having their property not staying within the family.
- Also encourages heirs to be careful with their finances because if you’re insolvent you could
lose your capacity to inherit the benefit if the testator mentions the above clause in his will.
6. JURISTIC PERSONS:
In intestate succession, only natural persons can inherit
In testate succession, juristic persons can inherit, if someone leaves an inheritance in a will to
a company or a closed corporation.
Juristic persons can only inherit in terms of testate succession.
PERSONS DISQUALIFIED FROM INHERITING:
Common law:
A person may not benefit from their own wrongdoing .
Categories of persons who are disqualified from inheriting:
i. THE MURDEROUS BENEFICIARY:
- The person who is responsible for the death of the testator, or one of the persons closely
related to the testator, is precluded from inheriting intestate and testate.
- A beneficiary who assists in the murder of the testator or provides guidance for the murder
of the testator, can also be precluded from inheriting.
- Authority for the above is a Roman-Dutch law maxim called ‘de bloedige hand neemt geen
erf’ (the bloody hand takes no inheritance.)
- This Roman-Dutch maxim is absolute. It does not matter if the murder was done negligently
or deliberately. Either way you are disqualified from inheriting.
- Negligent killing (culpable homicide) is equally disqualified from inheriting as a person who
commits murder. (Intentional killing of a human being.)
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