LAW OF SUCCESSION
Learning Unit 4 : Capacity to inherit and Contents of a Will
Theme 1: The General Statutory provisions regarding the capacity of certain categories of
beneficiaries to inherit in terms of intestate succession and testate succession
• All persons who live at delatio (falling open of the estate), regardless of whether they have
capacity to act or not, are capable of being testate and/or intestate heirs.
• If it’s alleged that a person does not have the capacity to inherit – burden of proof lies with
the person who makes the allegation.
• The capacity to inherit must exist at the time of vesting of rights and at the moment that
the beneficiary accepts the benefit.
• Beneficiaries who can inherit, are invested with testamenti factio passiva.
• The question of whether an intestate heir has the capacity to inherit or not is usually
answered with reference to the moment of the deceased’s death if the deceased dies
intestate.
• If testator leaves a valid will, the beneficiaries with the capacity to inherit are determined
upon the death of the testator unless the falling open of the estate and vesting of rights are
postponed.
• If circumstances arise where it is no longer possible to give effect to the will, with the result
that intestate succession must take place, the heirs with the capacity to inherit are
determined with reference to the time when the will became inoperative.
• There are a number of common-law and statutory exceptions to the general rule that all
persons may inherit; these exceptions may mean that a person is not entitled to an intestate
inheritance or to take a testamentary benefit.
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,LO1: Discuss whether the following categories of children, have the capacity to
inherit from a deceased’s estate:
The unborn child:
Rule = a person must be alive at the time of the falling open of the estate is subject to a few
exceptions.
Common law – a child who is in ventre matris (that is conceived but not yet born) may be
presumed alive for the purposes of a benefit (intestate or testate) if he/she is later born alive
and the bequest is to his/her advantage.
The position in the law of testate succession now confirmed in legislation.
Section 2D(1)(c) of the Wills Act 7 of 1953 provides that, in the interpretation of a will, unless
the context indicates otherwise –
... any benefit allocated to the children of a person, or to the members of a class of persons,
mentioned in the will shall vest in the children of that person or those members of the class
of persons who are alive at the time of the devolution of the benefit, or who have already
been conceived at that time and who are later born alive.
It is possible to make provision by means of a testamentary bequest for a person who has
not been born or not even conceived.
A fideicommissary bequest that extends over several generations is an example of such a
possibility.
Children of unmarried parents and adopted children:
• Although children of unmarried parents not qualified in terms of common law to
inherit from father’s intestate estate,
• but could inherit from mother,
• current position of these children as intestate heirs is regulated by section 1(2) of the
Intestate Succession Act 81 of 1987.
According to this provision, if child’s parents are not married does not affect the capacity of
one blood relation to inherit from another blood relation.
Children of unmarried parents include adulterine children and incestuous children.
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,Children of unmarried parents can be their parents’ or anyone else’s testate beneficiaries, if
the child has been nominated as beneficiary in the will. There is no distinction made between
the law of intestate and testate succession as far as this matter is concerned.
In terms of the law of intestate succession an adopted child is regarded for all practical
purposes as the natural child of his/her adoptive parents. The adopted child and his/her
adoptive parents as well as their blood relations can thus be one another’s intestate heirs.
An adopted child can be the testate beneficiary of his/her adoptive or natural parents or
anyone else, if he/she is included in the will concerned as a beneficiary. In the law of testate
succession problems of interpretation can arise in benefiting the children of unmarried
parents and adopted children.
The following rule of interpretation in section 2D of the Wills Act is aimed at addressing these
kinds of problems:
2D(1) in the interpretation of a will, unless the context otherwise indicates-
a. An adopted child shall be regarded as being born from his adoptive parent / parents
and , in determining his relationship to the testator or another person for the
purposes of a will, as the child of his adoptive parent / parents and not as the child of
his natural parent or parents or any previous adoptive parent , except in the case of a
natural parent who is also the adoptive parent of the child or who was marred to the
adoptive parent of the child concerned at the time of adoption;
b. The fact that any person was born out of wedlock shall be ignored in determining his
relationship to the testator or another person for the purposes of a will;
c. Any benefit allocated to the children of a person, or to the members of a class of
persons, mentioned in the will shall vest in the children of that person or those
members of the class of persons who are alive at the time of the devolution of the
benefit, or who have already been conceived at that time and who are later born
alive.
(2) in the application of this section ‘will’ means writing by a person whereby he disposes of
his property or any part thereof after his death.
These provisions will have the effect that, unless the contrary should be evident from the
contents of a will, children of unmarried parents and adopted children are included when a
provision in a will refers to the ‘child’ or ‘grandchild’ of a person. In the case of class
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, bequests to adopted children and children of unmarried parents are included. The clear
indication in the section that a testator can still decide in his/her will on benefiting children in
this category means that this section should not be viewed as a restriction on the principle of
freedom of testation.
Class bequests:
In the case of class bequests it may not be clear which persons from the class may inherit
and when the class should be closed. As indicated, section 2D(1)(c) also regulates the
position in respect of class bequests.
It often happens that a testator designates, for example, his/her brother’s children, his/her
nephews or his/her grandchildren as beneficiaries.
In Els v Els, where the testator left a third of his assets to his grandchildren, the court
decided that the class would close only when the son can no longer conceive children.
Section 2D(1)(c) did not apply to the facts in the Els case.
In terms of section 2D(1)(c), if a bequest to a class is at issue, only those persons will inherit
who are alive (or who have already been conceived and are later born alive) at the time of
the devolution of the benefit. According to the provision the class will accordingly close at the
time of the falling open of the estate.
The rule of interpretation in section 2D(1)(c) will apply only in a case of doubt regarding
when the class closes. Nothing thus prevents a testator from making express provision for
members of a class who will be conceived or born at a later stage
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