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Summary of the textbook for Law of Succession (PVL2602).
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- University Of South Africa (Unisa)
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PVL2602 Law of SuccessionLU 1 Introduction
When someone dies, he or she leaves behind an estate, referred to as the ‘deceased
estate’.
These rules identify the persons entitled to inherit (the beneficiaries) and the extent of
the benefits (inheritances or legacies) they are to receive.
Succession may take place in three ways:
1.in accordance with a valid will, that is, testamentary succession or successio ex
testamento
2.through the operation of the law of intestate succession in the absence of a valid will,
that is, successio ab intestato or successio legitima
3. in terms of a contract or agreement, that is, successio ex contractu or pactum
successorium
The material rules of the law of succession (both the common law and customary law
rules) operate in the private sphere. Thus, private law.
The administration of estates: The formal rules describing the process by which a
deceased estate is liquidated.
South African law of succession consists of two main branches –
A) the common law of succession that comprises testamentary and intestate succession
rules
B) the customary law of succession that comprises only intestate succession rules.
,While the common law and customary law have equal status in the South African legal
system, there are four issues that must be considered when looking at the two branches
of succession law:
1. Customary law is subject to two provisos,
namely it must be compatible with the Constitution,
and it may be amended by means of legislation.
2. The decision as to which law (common or customary) is applicable to a particular
deceased estate is made by applying choice of law rules that can be derived
from statute or judicial precedent.
3. Because customary law is not a single, unified system of law, but comprises the
different customary laws of the various traditional communities in South Africa,
section 1(3) of the Law of Evidence Amendment Act provides certain rules for
dealing with conflict between the different customary laws. Although a
discussion of these rules is beyond the scope of this book, the differences
between the various customary laws must be kept in mind when deciding which
customary laws will be applicable to a particular deceased estate.
4. The differences between the common and customary laws of succession are
mostly based on societal and economic considerations. On the one hand, the
main purpose of the customary law of succession is the preservation of the family
unit and the community after the death of the deceased. For this reason, the heir
steps into the shoes of the deceased and acquires all the deceased’s rights and
obligations. On the other hand, the common law of succession rules are
designed to regulate the transfer of the wealth of the deceased and they allow
the deceased more freedom to dispose of his or her property as he or she
pleases.
Choice of law rules
The duality of the South African legal system inevitably leads to situations where
persons are subject to overlapping or conflicting rights and obligations. Whenever this
happens, the courts must apply choice of law rules to determine which law is applicable.
This process forms part of the legal discipline known as the choice of law rules or
interpersonal conflict of laws.
Testate law of succession
Where there is a valid will, the choice of law rules are fairly straightforward.
,Intestate law of succession
Bhe v Magistrate, Khayelitsha
In the landmark case Bhe v Magistrate, Khayelitsha (Commission for Gender
Equality as Amicus Curiae); Shibi v Sithole; South African Human Rights
Commission v President of the Republic of South Africa10 (hereinafter referred to
as Bhe v Magistrate, Khayelitsha unless indicated otherwise), the Constitutional
Court made major changes to the choice of law rules to be applied to the intestate
the estate of any person who is subject to customary law that does not devolve in terms of
a will, must devolve according to the Intestate Succession Act
estates of persons living under a system of customary law. The Court declared
section 1(4)(b) of the Intestate Succession Act, section 23 of the Black
Administration Act and the regulations promulgated under this section
unconstitutional and invalid. Consequently, the Court ordered that, as from 15
October 2004, the Intestate Succession Act had to be applied to all intestate
estates, irrespective of the cultural affiliation of the deceased. The customary law
of succession can now only be applied if so chosen by means of freedom of
testation, in other words, by means of a clause in a will
Private international law (also referred to as conflict of laws or choice of laws) forms part
of a country’s national law and deals with the question of which country’s laws should
be applied if there is some or other connection with another country.
Intestate succession:
Intestate succession to movables is governed by the law of the country where the
deceased was domiciled and to immovables by the law of the country where the
property is situated.
Testate succession:
The formal validity of wills is governed by section 3bis of the Wills Act. In terms of
subsection 4, section 3bis is not retrospective – it applies only to a testator who died
after 3 December 1970. In these circumstances the common law rules will apply.
, In cases where the common law rules do not apply, section 3bis of the Wills Act lays
down that wills have to comply with the formalities of at least one of the following
countries’ legal systems to be valid in terms of South African law:
1. In the case of movables, any of the following –
• the law of the country where the will was executed
• the law of the country where the testator was domiciled or habitually resident
at the execution of the will or at the time of his or her death
• the law of the country where the testator was a citizen at the execution of the
will or at the time of his or her death.
2. Immovables – the law of the country where the property is situated.
NB: Study 1.6 Succession Terminology in pdf!
In both the common and customary law of succession (in the case of property), a
prerequisite for succession is that the owner of the estate must have died.
Estate Orpen v Estate Atkinson
The application of the rule is illustrated in Estate Orpen v Estate Atkinson21 where the
testators, the Atkinsons, massed their estates in a joint will. They had only one child, a
daughter. According to the stipulations of the will, the massed estate would, on the
death of Mr Atkinson, should he die first, be handed over to the executors of the estate
and they would act as trustees (in other words, a trust was created).
From the moment of death of the testator, Mrs Atkinson, also a testator, and the
daughter would receive the income of the trust in equal parts (in other words, they
would be income beneficiaries). Should one of them die, the survivor would receive the
whole of the trust income for the rest of her life. Should the daughter die, the whole trust
(corpus) would go to her children in equal shares, subject to the usufruct of Mrs
Atkinson should she still be alive. The will also stipulated that if the daughter should on
death have no children, 20% of the trust capital (corpus) would go to such person as the
daughter might designate in her will. She therefore obtained a ‘power of appointment’ in
her parents’ will with regard to 20% of the corpus of the trust. The destination of the
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