Class notes
Law of Succession 273 Notes
- Course
- Law Of Succession 273
- Institution
- Stellenbosch University (SUN)
These comprehensive succession notes include lecture notes, textbook information, and case summaries for the whole year.
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Private Law 273 Notes: Law of SuccessionTopic 1: Introduction
1.1 Aims and Objectives of the Law of Succession:
● What is the law of succession:
○ Legal rules which regulate the devolution of a deceased person’s estate upon one or
more persons; what to do with the property, who gets the property and how we get
the property to them.
○ The rules of the law of succession identify the persons entitled to inherit
(beneficiaries) and the extent of the benefits (inheritances or legacies) they are to
receive. The succession rules also determine the rights and duties that persons, e.g.
beneficiaries and creditors, may have in the deceased’s estate.
○ Succession may take place in three ways:
■ Testate succession: in accordance with a valid will, largely governed by the
Wills Act and Administration of Estates Act (successio ex testamento).
■ Intestate succession: through the operation of the law of intestate succession
in the absence of a valid will, largely governed by the Intestate Succession
Act (successio ab intestato or successio legitima).
■ In terms of a contract or agreement (successio ex contractu or pactum
successorium).
○ The law of succession also includes rules describing the administration process of
deceased estates.
● Law of succession in the legal system:
○ The material rules of the law of succession (common law and customary law rules)
operate in the private sphere.
○ The formal rules describing the process by which a deceased estate is liquidated are
referred to as the administration of estates. The administrative process is intricate,
and an executor plays a very important role.
○ It’s a fairly sterile and formalistic system, but protects the interests of the people left
behind, and has a social and economic benefit to society (De Waal).
○ The law of succession has a dual character, as the rest of our legal system does, due
to the pluralism of Roman-Dutch common law and customary law. From this, choice
of law rules or interpersonal conflict of law sometimes have to be used to determine
which law is applicable.
● The law of succession affects the following:
○ Extended family
○ People who choose not to marry (only changed last year)
○ Same-sex couples (law has recently changed to include same-sex couples as
spouses)
, ○ Extramarital children:
■ S 1(2) of the ISA provides that “illegitimacy shall not affect the capacity of one
blood relation to inherit the intestate estate of another blood relation.”
■ Thus, irrespective of the circumstances under which a child is conceived, any
child has the capacity to inherit intestate from both parents and their
relations.
○ Adopted children:
■ S 1(4)(e) of the ISA states that an adopted child is deemed to be a
descendant of their adoptive parents and not their natural parents; the rights
and obligations that may have existed in the biological relationship are
terminated.
■ There is no differentiation between adopted and biological children (as they
would not inherit from their biological parents).
○ More than one spouse
● Difference between testate and intestate succession:
○ Testate: where there is a valid will, or an invalid will which is condoned in terms of s
2(3) of the Wills Act (one has to apply to court for a will to be declared valid in such a
way).
○ Intestate: there is no will, or someone dies leaving an invalid will which cannot be
condoned in terms of s 2(3) of the Wills Act .
○ Partial intestacy: not everything someone owns is stipulated in their will; the rules
must be considered.
1.2 Death and Survivorship:
● There are a few requirements (basic ground rules) that must be fulfilled before the rules of
succession can come into operation, including death and survivorship.
Death: (a prerequisite for succession)
● Legal definition of death:
○ Traditional approach: someone is considered legally dead when their heart and lungs
stop working; not followed anymore.
○ Modern medical approach: someone is considered legally dead when their brain
stops working.
● S v Williams 1986:
○ Mr WIlliams had shot the victim in the neck; she was placed on a ventilator but was
brain dead; the ventilator had to be switched off, but Mr Williams attorney argued that
the gunshot had not killed the victim, the doctor who switched the ventilator off had
killed the victim; the court said that once brain activity ceased, she was considered
legally dead.
, ○ When a person is kept alive by means of a respirator, its eventual disconnection is
not, in legal terms, the cause of death.
● General rules and exceptions:
○ The general rule is that the person must have died.
○ Exceptions:
■ The court awards a presumption of death order with an order for the division
of the estate; those alleging the person is dead have to prove it. This order is
often subject to the provision of security that the estate can be returned to
him or her should they reappear.
■ Estate massing: the entire estates or part of the estates of various testators
are consolidated into a single economic unit for the purpose of testamentary
disposal; the effect of estate massing is that the surviving testator’s estate
devolves according to the will of the first-dying while he or she is still alive.
● a married couple both own the house and own separate property, but
they decide to join their properties in one economic unit; in their joint
will, the husband states the property will go to the children if he dies
but the wife is still alive; wife is still cared for.
■ Commorientes >>
● Commorientes:
○ This applies when a number of people are killed in the same disaster (e.g. car or
plane crash), and the question to investigate is who died first in order to choose
beneficiaries, especially if the victims are family members.
■ Common law presumptions: if family members die, it would be automatically
assumed that the child died first - this is no longer applicable.
■ English law presumption: the older person died first, the reasoning being that
a younger person is more likely to survive - this is also no longer applicable
(neither look at the evidence).
○ General rule today: if the sequence in which people died cannot be established, there
is no presumption of persons predeceasing each other or simultaneous death.
■ The evidence needs to be examined (eye-witnesses, autopsy etc); in such an
instance, _ time of death.
■ If it cannot be determined who died first, looking at the evidence, they are
considered to have died at the same time (last resort).
○ Ex Parte Graham 1963 (4) SA 145 (D):
■ Facts: The testator left her estate to her adopted son, and the transfer of
certain immovable property into the name of her son. The will provided that,
should the son predecease the testator, then the whole estate was to go to
her mother. The testator and son were then both killed in an aeroplane crash
in which all the passengers and the crew died. The Registrar of Deeds
, wanted an order of the court declaring that the adopted son died before or
simultaneously with the testator before the immovable property could be
transferred to her mother.
■ Legal issue: there was an application for a declaration that the testator and
her adopted son died simultaneously.
■ Finding: the question of who died first is a question of fact depending on the
circumstances of each case; in this case, the evidence was such that no
other conclusion than one of simultaneous death could be reached.
■ Point: there is no presumption as to which of two people, who died in the
same accident, predeceased the other.
○ Greyling v Greyling 1978 (2) SA 114 (T) > clause in a will dealing with simultaneous
death:
■ Facts: a husband and wife died in a car accident, but the husband died later
in an ambulance; the joint will give three scenarios:
● If the husband died first, son A would inherit all the property and
farming equipment, while the wife received the residue of the estate
and have usufruct of the immovable property.
● If the wife died first, the husband would inherit everything.
● If they died simultaneously, son A would inherit all the property and
farming equipment, and the residue of the estate would be split
among the other children.
■ Legal issue: whether the estate should devolve in accordance with the wife
predeceasing the husband or if it should be treated as a simultaneous death.
■ Finding: the court looked at the words “to die simultaneously”, and found that
they did not have to die at the exact same time; it means to die as a result of
a single incident, irrespective of the exact time of death.
■ Note: Greyling can only apply when there is a joint will with a clause to die
simultaneously.
- Example Question
- Answer
Survivorship:
● General rules:
○ Survivorship is a precondition to inheriting.
○ There must be somebody on whom the rights (or responsibilities) can devolve, thus
the beneficiary must be alive or at least have been conceived.
● Exception: nasciturus fiction, which allows an unborn child to receive and inherit.
○ Ex parte Boedel Steenkamp 1962: forms part of common law
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