Summary
Summary
- Course
- Law
- Institution
- University Of The Witwatersrand (wits)
Summary of 9 pages for the course Law at wits (Summary notes)
[Show more]
Content preview
UNIT TWO: THE LAW OF INTESTATE SUCCESSION (pg 23 – 46Constitutional Challenges
Background
o Customary law of succession = concerned mainly with preservation of the family unit
o Family head (usually a male) = holds all property as a nominal owner for the benefit of the
family + when he dies, his heir succeeds his assets, rights and obligations + persons formerly
under the deceased’s guardianship fall under the guardianship of the heir who must now
maintain and support such persons
o This male primogeniture meant that women could not inherit and perpetuated a system in
which women were subordinate and subservient
o Men were not always able to fulfill this role and this led to greater hardship for all affected +
discriminated against both men (younger males could not inherit) and women + only
legitimately born children could benefit
Bhe
o s23 of Black Administration Act + customary rule of male primogeniture = unfairly
discriminated and was unconstitutional according to s9(3) and s10 of Const
o Intestate Succession Act = extended to customary law of intestate succession + modified to
take into account polgynous African customary marriages with retroactive effect from 27
April 1994
Daniels v Campbell
o ‘Spouses’ in the Intestate Succession Act and ‘survivors’ in the Maintenance of Surviving
Spouses Act = extended to include parties involved in monogamous Muslim marriages
Gory v Kolver
o The failure of s1(1) of the Intestate Succession Act to include permanent same-sex life
partnerships within the ambit of surviving spouses was inconsistent with the rights to
equality and dignity in s9 and s10 of the Const, respectively
o This was extended to include such partnerships + also had retroactive effect such as in Bhe
Order of Succession (all sections referred to below are taken from the Intestate Succession Act)
Rule 1 – s1(1)(a)
o Deceased is survived by 1 spouse but no descendants = spouse inherits entire intestate
estate i.e. even if the deceased is survived by parents, brothers or sisters, they are excluded
See Figure 2.3
J inherits the whole of R’s estate because he dies intestate
o Deceased is survived by more than 1 spouse but no descendants = spouses inherit entire
estate and is divided equally among them
See Figure 2.4
J, A and S share R’s estate equally
Rule 2 – s1(1)(b)
o Deceased is survived by a descendant/s but not by a spouse/s = descendant/s inherit entire
estate equally among them and representation is a possibility
, See Figure 2.5
R’s predeceased wife does not inherit but his 3 children inherit in equal
shares per stirpes
B, O and M all get one third BUT B is predeceased so his share is divided
amongst his children, W and L in equal shares (one sixth each)
NOTE: same would apply if any one of the heirs was born as a result of
surrogacy, illegitimacy or was adopted etc (see earlier exceptions)
s1(6) of the Intestate Succession Act = if a child of the deceased is
predeceased, disqualified from inheriting or renounces their inheritance, that
child’s share passes equally to their descendants i.e. it is representation ex
lege (by operation of law) and continues ad infinitum e.g. see B, W and L in
this example
Rule 3 – s1(1)(c)
o Deceased survived by 1 spouse and descendant/s = surviving spouse inherits whichever is
greater: either the child’s portion/share OR an amount fixed at the time by the Minister of
Justice and Constitutional Development (currently R125 000) i.e. the descendants will then
inherit the residue (if any) of the intestate estate
Calculation of the child’s portion:
VALUE OF ESTATE ÷ (NUMBER OF CHILDREN ALIVE + NUMBER OF
PREDECEASED CHILDREN IF THEY HAVE SURVIVING DESCENDANTS + NUMBER
OF SPOUSES))
The share inherited by the spouse is unaffected by the amount they may
receive as a result of matrimonial property laws i.e. that amount (if any) is
first deducted from the overall estate, then liabilities are paid and then the
child’s portion is calculated
See Figure 2.6
Example 1
o A and P = married in community of property (ICOP) and the joint
estate is worth R400 000
o P receives half the joint estate according to matrimonial property
rules before anything else occurs i.e. R200 000
o Calculate child’s share with R200 000
R200 000 ÷ (T + M + C + P) i.e. R200 000 ÷ 4 = R50 000
R50 000 is less than R125 000 (less than the child’s share) so P
gets a further R125 000L
This leaves R75 000 which is divided equally between T, M and
C i.e. R75 000 ÷ 2 = R25 000 each
However, since T is not alive, his share is divided equally
between his descendants, E and D i.e. they receive R12 500
each
Example 2
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller youtuners. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R50,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
51036 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 15 years now