PVL2602 – 2022
LAW OF SUCCESSION
Learning unit 1 Introduction
The law of succession prescribes the legal rules that determine what should happen to a person’s
estate after his or her death. Succession may take place:
according to a will (testate succession),
according the operation of the law of intestate succession, in the absence of a valid will, that
is, successio ab intestato or successio legitima,
or in terms of a contract or agreement (pactum successorium).
In terms of section 1 of the Wills Act, a testator is required to sign his or her will. The testator can do
this by means of his or her signature, initials, the making of a mark or by using an amanuensis
(someone signing on his or her behalf). If, however, he or she uses the last two methods (mark or
amanuensis), a certificate by a commissioner of oaths has to be attached to the will.
Accrual is only relevant to testate succession and the order of succession in the absence of a valid
will is only relevant to intestate succession.
1.2 Law of succession in the legal system
The formal rules describing the process by which a deceased estate is liquidated are referred to as
the administration of estates.
Although the office of the Master of the High Court (which is a public office) is involved in the
process, the rules still operate in the private sphere. Therefore, the law of succession forms part of
the private law.
The Romans regarded it as a disgrace to die intestate. Therefore, testate succession, in contrast to
intestate succession, played a dominant role in Roman law. In 1953, the South African legislator
intervened and revoked all the provincial legislation with regard to wills, testamentary forms and
formalities and consolidated South African law by means of the Wills Act 7 of 1953. This Act came
into operation on 1 January 1954. the Wills Act revoked all the previous statutory and common-law
testamentary forms. Today there is only one testamentary form, and that is the underhand or
statutory will.
It can be maintained that the modern South African law of succession is both mixed (with its origins
in Roman-Dutch and English law) and pluralistic (with elements of Western and African customary
law).
1.3 Dual character of the law of succession
There was no recognition of customary law during the early period of occupation at first by the
Dutch (1652–1795 and 1803–1806) and later by Britain (1795–1803). Only after the second British
occupation in 1806 did customary law receive some form of recognition. The British followed a
policy of non-interference with the customs and usages of indigenous people. In 1927, the various
colonial laws were finally consolidated in the controversial Black Administration Act that provides for
the management of indigenous affairs. It did not survive constitutional scrutiny and little of the Act
remains today. Modern South African law is thus a mixed, pluralistic legal system. On the one hand,
it is a conglomeration of Roman-Dutch law as influenced by English common law and adapted by
legislation. On the other hand, it consists of a number of indigenous laws, jointly referred to as
customary law.
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Against this background, one can say that the South African law of succession consists of two main
branches – the common law of succession that comprises testamentary and intestate succession
rules and 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 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 is 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.
1.4 Choice of law rules
The relevant choice of law rules can be derived from statute and judicial precedent.
In the past, particularly prior to 1994, the common and customary systems of succession were kept
strictly separate in South Africa. The Black Administration Act prohibited black persons from
disposing of certain property (movable house property and quitrent land) by means of a will. House
property had to devolve according to customary law and quitrent land had to devolve according to
special statutory tables of succession, similar to customary law. The only property that black persons
could dispose of by means of a will was family property and other immovable property not qualifying
as house property. The result was that the intestate estates of black persons were excluded from the
Intestate Succession Act. If a deceased had concluded a civil marriage in community of property, his
or her estate had to devolve according to the common law rules of succession. If, however, he or she
had concluded a customary marriage, the customary succession laws would be applicable.
Testate law of succession:
Where there is a valid will, the choice of law rules is fairly straightforward. Although the concept of a
will is unknown in customary law, it is accepted that a family head can make certain allocations of
property to houses and individuals, and that his deathbed wishes must be respected.
Intestate law of succession
Where a deceased died without a valid will, the choice of law rules is more complex. In the past
regulations promulgated under the Black Administration Act laid down certain choice of law rules if a
person living under a system of customary law died without a valid will.
In the landmark case Bhe v Magistrate, Khayelitshathe Constitutional Court made major changes to
the choice of law rules to be applied to the intestate estates of persons living under a system of
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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.
In line with these developments, the RCLSA was promulgated to modify the customary law of
succession. The President assented to the Act on 19 April 2009 and it came into operation on 20
September 2010.
Administration of estates
Prior to December 2000 when a separate system existed for administering intestate estates
depending on a person’s race. A magistrate administered black persons’ intestate estates, while the
Master of the High Court administered the estates of all other race groups, as well as the testate
estates of black persons.
Moseneke v The Master brought these differences to the fore when the Constitutional Court
declared any legislation that creates different systems of administration on the grounds of race to be
unconstitutional. Since 2004, a unitary system of administration of estates exists for all South
Africans and the choice of law rules only apply to the question of whether a deceased estate must be
administered by the Master or a designated magistrates’ office depending on the value of the estate.
1.5 Private international law of succession
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.
In South Africa, there is no unified code dealing with private international law of succession. The
applicable rules are found in the common law and piecemeal legislation.
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 death.
2 In the case of immovables, any of the scenarios above or the law of the country where the
property is situated (preferred).
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1.6 Succession terminology
Terminology in succession:
Concept Meaning
absolute bequest a bequest that does not contain any conditions.
accrual or the right of accrual (ius accrescendi) the right which co-heirs or co-legatees have of
inheriting the share that their co-heir or co-
legatee cannot or does not wish to receive
ademption a form of tacit revocation of a legacy when a
testator voluntarily alienates the object of the
legacy during his or her lifetime causing the
legacy to fail
adiation the acceptance of a benefit from the estate of a
testator or deceased either under testate
succession or under intestate succession
administration of estates the process, by which a deceased estate is
liquidated by an executor under the supervision
of the Master of the High Court and is divided
among the beneficiaries
amanuensis someone who signs the will on behalf of the
testator
amendment deletion, addition, alteration or interlineation
by the testator. An amendment is distinguished
from rectification, which takes place when a
court adds, deletes or corrects something in a
will because the testator made a mistake.
animus testandi the intention of the testator to make a will
armchair evidence evidence used by the court to place itself in the
position in which the testator was at the time
of the making of the will
ascendants ancestors of the deceased; anybody in the
ascending (upwards) line of relationship
attestation clause a clause that appears at the end of the will in
which it is declared that all the parties were
present and signed in one another’s presence.
beneficiary or beneficiaries the person or persons to whom a testator’s
estate is transferred. Beneficiaries are called
heirs when they receive an inheritance and
legatees when they receive a legacy.
bequeath to dispose of assets by means of a will
capacity to act a person’s capacity to enter into legal acts. The
required age is 18.
child’s portion calculated by dividing the deceased’s estate by
the number of children who have either
survived him or her, or who have predeceased
him or her but have left descendants of their
own, plus the number of surviving spouses
collateral refers to a person who is related to the
deceased because he or she has the same
ancestor as the deceased, for example a full
