• What is the law of succession? What are the three types of succession?
• What differentiates testate succession from intestate succession?
• What is the purpose of the rules of succession?
• What is the difference between common law of succession and customary law of
succession?
• ...
LAW OF SUCCESSION
Learning Unit 1: Introduc:on to The South African Law of Succession
Theme 1: A General Introduc4on of the Law of Succession and The Dual Character of the
Law of the Law of Succession
LO1: Explain the nature of the Law of Succession and define it;
1.1 GENERAL
When a person dies
- everything that remains of his or her assets after debts,
- other obligations and administrative costs have been reclaimed passes by
inheritance to people qualified to succeed the person
Rules that determine who the deceased beneficiaries are and what they receive?
The rules of the law of succession determine
- how the qualified beneficiaries are identified
- how the scope of the respective benefits is established.
What is the formal defini4on of the law of succession?
- The law of succession is the totality of the legal rules
- which control the transfer of those assets of the deceased
- which are subject to distribution among beneficiaries, or those assets of another
over which the deceased had the power of disposal.
LO2: Evaluate where the Law of Succession falls into the whole system of Law;
Where would you classify the law of succession in the SA legal systems?
- Viewed objectively,
- the law of succession, with the law of things, the law of obligations and intellectual
property law,
- constitutes part of the law relating to patrimony,
- which is a subdivision of private law.
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,Principles and rules pertaining to other parts of the law rela4ng to patrimony thus oNen
have a bearing on the law of succession.
Law of succession fulfils an important economic func4on
- regulates transfer of wealth upon a person’s death
- supported by the principal freedom of testation
- freedom of testation = person may within certain limitations, decide on the
distribution of their assets at time of persons death
Law of succession also fulfills a social func4on
- maintaining and protecting the family as a social unit
- influenced by social trends and other developments affecting the family
- examples = higher divorce rate, increase in nr of cohabiting relationships, recognition
of prev unprotected relationships, and advance techniques regarding fertilization
and births
- developments = directly related to the provisions in the constitution
- limitations on freedom of testation based on economic considerations, there are
also important limitations related to the social function of the law of succession
LO3: Explain what the legal posiFon is in respect of deceased’s estates;
1.6 LEGAL POSITION IN RESPECT OF THE DECEASED ESTATE
Does the ownership of bequeathed assets pass immediately to the beneficiaries upon the
death of the testator?
No.
In terms of the law of succession a beneficiary thus never becomes owner of inherited
assets immediately upon the death of the deceased.
This stems from our system of the administra4on of estates that replaced the common-law
system of universal succession (successio in universitatem).
What does the principle that ‘ownership of bequeathed assets does not pass immediately to
the beneficiaries upon the death of the testator’ thus mean?
It confirms that succession is thus in itself not a mode of acquiring ownership.
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, What does the beneficiary receive upon the testator’s death if he does not immediately
receive ownership of the bequeathed assets?
- The beneficiary only obtains (if vesting of rights has already occurred) a claim
(personal right) against the executor of the deceased estate.
- The content of this right is that, upon completion of the process of administration of
the estate, the executor must transfer the bequeathed assets to the beneficiary
(assuming obviously that the liabilities of the estate do not exceed its assets).
When will the beneficiary then become the owner of the assets bequeathed to him?
Only upon the proper transfer of the assets according to the rules of the law of property by
the executor will the beneficiary then become the owner of the assets bequeathed to him.
Who then owns the assets of the estate in the period between the death of the deceased
and the transfer of the assets to the beneficiaries by the executor? Provide a detailed
explana4on of the different views in law and state which is best suited for our purposes?
- There is no unanimity in law.
In Greenberg v Estate Greenberg the Appellate Division explicitly refrained from giving a
decisive answer.
There are different possibili4es in this regard.
- Firstly: The beneficiary does not immediately become the owner of the assets upon
the death of the deceased.
- Secondly, the theory has been put forward that the deceased estate is a juristic
person that can itself be the owner of the assets of the estate. This has been
rejected AD.
- Thirdly, there is the possibility that the executor of the deceased estate becomes the
owner of the assets in his or her official capacity. There is also support for this view
in case law.
Yet this view should not be taken too far and the following statement by the court in Van
den Bergh v Ccetzee should s4ll be borne in mind:
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