Termination of Legal Subject, Proof of death, Presumption of death, Common law procedure, Discretionary capacity of the court, Factors which the court considers, Presumption of death order to provision of security, Dissolution of marriage of missing person, Dissolution of marriage of missing person...
1. When does death legally occur
- Courts rely on medical evidence to determine moment of death
o Molecular death
▪ 30 years ago:
• Brain and lung activity must stop
▪ Absence of heart and lung activity
▪ Body undergoes irreversible changes
▪ Follows brain death
▪ No transplants
o Brain death (somatic)
▪ Contemporary medical opinion
• Death continuing process
• Resulting in somatic death
▪ Brain death
▪ Occurs first
▪ Organ transplants
- Issue of distinction between molecular death & somatic death was raised in S v Williams
o The accused entered a farmhouse with intention of stealing
▪ Armed with a revolver
o According accused, the woman also had a firearm but before she shot him, he shot her
o Deceased was shot in the neck and was in a coma when hospitalised
▪ Transferred to a bigger hospital and even though she was breathing, was put on a
breathing apparatus (ventilator)
• Kept artificially breathing for 48 hours
o No heart activity afterwards
o Trial found
▪ Traditional method standards: moment of death – brain-stem death sets in and was
legally dead before ventilator
▪ Accused found guilty of murder
- Death of a natural person has important legal consequences
o Deceased’s marriage is dissolved
o Payment of his/ her life policies become due
o He/ she ceases to hold any office
o Rules of law of succession come into operation
▪ Inter alia
▪ Ownership of the deceased’s assets vest in the executor/ Master of the High Court
o Moment of death = important
▪ Indicates when the particular individual’s legal subjectivity comes to an end
• Because this moment sets the rules of the law of succession in motion
o It is extremely important to determine the exact moment of death
2. National Health Act 61 of 2003
- Death that ends Legal subject is defined as somatic death
- Because you can still perform transplants
3. Legal consequences of death
- E.G. Important to determine moment of death
- Medical evidence valuable but to address certain problematic issues we have to rely on legal rules
4. Problem areas: legal rules address problems
- As to order of death
- As to fact of death
- Commorientes
1
, Testratrix
- a woman
Commorientes who has
- when many people die in same disaster made a will
o Important to identify the order they died in or given a
▪ In order to establish whether one can inherit from another legacy.
• The reason why
o One person can only inherit from another is he/she s alive at time of
person’s death
- Ex parte Graham
o Woman bequeathed her estate to her adopted son
▪ Father stipulated: if her son died before her then her estate devolved to her mother
▪ The testatrix and her son died in same air crash
▪ The executor applied to the court for a declaratory order that the testatrix and her son
died
• Order was granted and estate was given to the mother
- In English and Roman-Dutch law the problem of commorientes was regulated by way of presumptions
o Solution was artificial
Commorientes
▪ Presumptions did not keep up with reality
- Persons who die
▪ As result
more/ less
• Roman-Dutch law presumptions not recognised
simultaneously in
- Current position of South African law
the same disaster
o When person die in disaster
- E.G. motor vehicle
▪ Presumption they died simultaneously unless contrary is proven
accident
- When a person contends that one of the commorientes survived another
- Earthquake
o Must be proved on a balance of probabilities
- It is common for spouses to appoint each other as heirs in their wills to provide for division of their
estates should they die simultaneously
- Greyling v Greyling
o Husband and wife involved in motor vehicle accident
o Evidence could have led to effect that the husband had lived a short while longer than his wife
o Court decided that the testators intended the word ‘simultaneous’ in joint will to indicate their
death on one occasion due to same disaster
▪ Regardless of time difference between deaths od deceased
o Judgement is in accordance with basic principle of law of succession
▪ A will should be interpreted in accordance with testators’ intention
- Important to determine order in which they died
Proof of death
- Death – normally proved by means of a death certificate
- When a person dies of natural causes
o Certificate is usually obtained from medical doctor
- Medical doctor may issue certificate only after he/she has ascertained that the person is dead either
o He/ she previously treated the person
o He/she examined the body of the deceased
- Certificate contains information regarding the
o Identity of the deceased
o Cause of death
o Certifies that person named therein is dead
- Sometimes a certificate cannot be obtained from a medical doctor
o E.G.
▪ Where the deceased had not previously been treated by the doctor
▪ Medical doctor could not examine the body of the deceased
o The person who is present at death or knows deceased or person arranging funeral
▪ Must give required notification to the Director-General of Home Affairs
- Where the death is a result of/ suspected result of unnatural causes
o Inquest is held
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