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pvl2602-summaries-summary-law-of-succession.
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- University Of South Africa (Unisa)
pvl2602-summaries-summary-law-of-succession.
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1LAW OF SUCCESSION
STUDY UNIT 1
INTRODUCTION:
• Forms part of Private Law
• Comprises legal rules that determine what happens to a person’s estate after his
death.
• Rules of succession identify the persons entitled to succeed the deceased (the
beneficiaries) and the extent of the benefits (inheritance / legacies) they are to
receive.
• Also includes the rights and duties of the beneficiaries & creditors may have over
deceased estate.
• Succession takes place in 3 ways:
1. Accordance with a valid will – testamentary succession or succession ex
testament.
2. Through operation of the law of intestate succession in the absence of a valid will
– succession ab intesto / succession legitima
3. Law of Suc also includes rules describing the administration process of deceased
estates – Formal Rules.
LAW OF SUCCESSION IN THE LEGAL SYSTEM:
• Material Rules of law of Suc:
- What becomes off a person’s estate after death;
- What beneficiary will inherit;
- Determine rights / duties that persons may have in deceased estate.
• Formal rules:
- Describes process by which deceased estate is liquidated, aka – administration of
estate.
SUCCESSION TERMINILORGY – NB
Pg. 7 – 14
GROUND RULES FOR SUCCESSION
Few ground rules that must be adhered to;
1. PERSON MUST HAVE DIED:
• Common + Customary Law – prerequisite for succession, owner of estate must have
died.
• Cust Law: succession to status positions happens only once family head died.
Estate Orpen v Estate Atkinson:
• The Atkinsons, Mr + Mrs, massed their estate in a joint will and had only 1 child.
• Mr Atkinsons will stipulated;
Page 1 of 51
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o On his death, (died 1st), estate must be handed over to executor of the
estate and they would act as trustees (thus trust formed on death).
o Mrs Atkinson and daughter, Mrs Orpin, would receive income of trust in
equal parts.
o Aka – income beneficiaries
o Should mom/daughter die, the other receives whole of trust.
o Should daughter die, the trust (corpus) would go to her children in equal
shares, subject to usufruct of Mrs Atkinson (should she still be alive).
o If daughter has no children, daughter can designate person inherit will
and 20% of corpus would go to that person (this case, the husband).
o Daughter received “power of appointment” form parents’ will.
• Daughter died 1st, then father, then spouse.
• Legal question: whether the exercise of Mrs Orpen “power of appointment”
in favour of Mr Orpen ito her fathers will was valid, and
• Whether her spouse’s deceased estate had obtained vested rights with
regard to the 20% trust capital bequeathed to him, regardless of the fact that
she died before her father.
• Court held: Mr Orpen’s estate had no right to the 20% trust capital.
• Mrs Orpen obtained her right to power of appointment upon the death of
her father only.
EXCEPTIONS TO RULE:
a) COURT PRONOUNCES A PRESUMPTION OF DEATH & MAKES AN ORDER FOR THE
DIVISION OF THE ESTATE:
• Onus is on the person who alleges he is dead.
• Person has disappeared with no body: difficult to prove.
• Only once court makes presumption of death order, can the person’s estate be
administered.
• Customary for court to order that the estate of the person presumed to be dead,
should be distributed amongst his heirs, subject to the provision of security that
the estate can be returned to him, should he reappear.
• Factors court takes into account;
- Length of time person has been missing
- Age
- Health
- Status in society
- Circumstances surrounding disappearance
b) ESTATE MASSING:
• Entire/part of estates of various testators are consolidated into a single economic
unit for testamentary disposal.
• Surviving testators estate dissolves upon death of the other testator.
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c) NUMBER OF PEOPLE KILLED IN SAME ACCIDENT – COMMORIENTES:
• Difficult to prove who died 1st for purpose of determining beneficiaries, especially if
family members involved.
• RULE: no presumptions of persons predeceasing each other or of simultaneous
death.
Ex Parte Graham:
• Mother & adopted son died together in a plane crash.
o Mother left son: “all my estate remaining at the time of the death of my
father and mother”
Also certain immovable property be transferred immediately in the name of
my son, subject to right of her parents to remain in the house for rest of their
lives.
o Should son predecease mother, the whole estate must succeed
unconditionally to her mother.
• Registrar refused to transfer immovable property to mother, without court order
declaring adopted son predeceased mother or died simultaneously with testatrix.
• Court came to the conclusion that no presumption as to which of the 2 people
predeceased the other.
• Question as to who died 1st depends on facts or circumstances of each case
individually.
• This case: conclusion – died simultaneously.
2. TRANSFER OF RIGHTS / DUTIES WITH REGARD TO ASSETS AND / OR STATUS OF
DECEASED:
• Somebody must take the place of the deceased testator with regard to ownership of
his assets and / or
• Customary Law – with regard to status.
• Common Law: transfer of rights/responsibility which belonged to deceased.
• Customary Law: depends on type of property and status of deceased
• Ground rule linked to dies cedit and dies venit.
3. BENEFICIARY SHOULD AT THE TIME OF DIES CEDIT BE ALIVE OR HAVE BEEN
CONCEIVED:
• Transfer of rights/responsibility is prerequisite for succession.
• Where beneficiary predeceased when the bequeathed benefit vests, there can be no
succession, except if the deceased made provision in his will or ANC for predeceased
of the beneficiary or in circumstance mere ex lege substitution applies.
• EXCEPTION: beneficiary has been conceived, but not yet born when the bequeathed
benefit vests.
• Unborn child has no rights or duties – nascitirus fiction applies, and the vesting of
bequest is held until child is born alive.
• Nascitirus fiction: codified in the testate law of succession by Sec 2D(1) of the Wills
Act.
Page 3 of 51
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4. BENEFICIARY MUST BE COMPETENT TO INEHRIT
STUDY UNIT 2
INTESTATE SUCCESSION
INTRODUCTION
Law of intestate succession or succession ab intestate
- The law of intestate succession comprises the legal rules or legal norms
that determine how succession should take place in cases where a
testator fails to regulate succession on death by way of a valid will or a
pactum successorium contained in an ANC.
• 2 Laws apply:
1. Intestate Succession Act – deceased lived under common law system.
2. Reform of Customary law of Succession Act – deceased lived under Cust Law.
BASIC CONCEPTS:
Pg. 22 – 23.
WHEN DOES PERSON DIE INTESTATE:
1. Without leaving a will at all.
2. Having executed a valid will, which has subsequently become wholly or partly
inoperative for some reason.
3. With a valid will that fails to dispose of all the deceased’s assets.
4. Leaving a document purporting to be a will, but which does not comply with the
formalities for wills and is ito condone ditto Sec 2(3) of Wills Act.
VESTING OF AN INTESTATE INHERITANCE:
When a person dies partially intestate:
Harris v Assumed Administrator Estate MacGregor:
• Deceased executed a valid will in 1941 and died 1943.
• Will stipulated:
o Estate goes into trust, of which the wife will be income beneficiary.
o On wife’s death, the trust capital was to be paid to the children born of their
marriage.
o No children and upon death of wife – capitol of trust must go to deceased’s
brother.
o If brother predeceased appellant, the capital of the trust was to pass to his
brother’s children, if any.
• Deceased died with no children, brother died in 1979, leaving no children (only wife
is still alive)
• No provision made in will for this contingency, and the result was that there was
intestacy as regards the devolution of the trust capital.
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