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Textbook = The Law of Succession in South Africa (4th edition) by Juanita Jamneck, Christa R...
LAW OF SUCCESSION Notes by Mieke Schwartz
IURI 313 079 439 4224
STUDY UNIT 1
Explain the Scope and Application of the Law of Succession in SA
• Person dies = leaves behind “deceased estate” which must be distributed among his heirs
• Rules of law (material rules) of succession determines:
o How deceased person’s estate must be distributed to the heirs
o Who the heirs are (beneficiaries)
o Extent of the benefits (inheritances/legacies) the heirs must receive
o Rights + duties the interested persons may have in the deceased’s estate
o Describes the formal rules for the administration process of deceased estate
• Succession takes place in 3 ways:
1. In accordance with a valid will (testamentary succession / successio ex testament)
2. Through operation of the law of intestate succession in the absence of a valid will
(successio ab intestato / successio legitima)
3. I.t.o a contract or agreement (successio ex contractu / pactum successorium)
• Several Acts (p. 2 in textbook provides a list, but will be referred to below where applicable)
Where does the Law of Succession fit in Within the SA Legal System
• Material rules of law of succession (common and customary law) = private law
• Administration of estates = body of formal rules describing the process by which a
deceased estate is liquidated
o Master of the High Court is involved in the process, but the rules still operate in the
private sphere
Nature of Law of Succession Reference to SA’s Mixed, Pluralistic System
Testate Succession
• Roman Law:
o Private property rights + right to dispose one’s private holdings through a will
(testamentary bequest) were known
o Testate succession played important role = disgrace to die intestate
o Institution of heir = validity requirement for a Roman will
o Roman testator had to bequeath specific portion of his estate to close relatives
(legitimate portion)
• Roman-Dutch law has elements of Germanic + Dutch Law:
o Institution of heir as a validity requirement disappeared in Roman-Dutch law
o Kept legitimate portion rule
1
,LAW OF SUCCESSION Notes by Mieke Schwartz
IURI 313 079 439 4224
• SA inherited several testamentary forms from Roman and Roman-Dutch Law:
o But different provinces in SA = promulgated legislation based on English Wills Act
known is known as an “underhand” or “statutory will”
o Certain old testamentary Roman + Roman-Dutch law forms were still acknowledged
o Legitimate portion repealed in the 19th century
• 1953 = SA legislator revoked provincial legislation on wills, testamentary forms, formalities
o Established SA law through the Wills Act = came into operation on 1 January 1954
• Wills Act = revoked previous statutory and common law testamentary forms
o Today, only one testamentary form = “underhand” or “statutory will”
• Although testate law of succession is mainly inspired by Roman-Dutch law, English law also
influenced testate law of succession, especially in the interpretation and execution of wills
Intestate Succession
• SA law of intestate succession has its origins in the former province of Holland
o 2 systems of intestate succession:
§ Aasdomsrecht = north-Holland
§ Schependomsrecht = south-Holland
• Differences in 2 systems = conflict in SA regarding right of surviving spouse to inherit
intestate, but this his changed in 1988 = Intestate Succession Act came into operation
• Intestate Succession Act = sets out current rules of intestate succession
o Intestate succession was modified by the Recognition of Customary Law of
Succession Act (RCLSA) to provide for circumstances where deceased lived under a
customary law system
Conclusion à modern SA law of succession is mixed:
• Origins = Roman-Dutch and English law
• Pluralistic = elements of Western and African customary law
What is Meant with the “Dual Nature” of the Law of Succession
• Colonialism impacted the development of law of succession
• Customary law only received recognition after Britain’s 2nd occupation
• British followed policy of non-interference with customs of indigenous people if customs
were not against the principles of public policy and natural justice
• Territories regulated the application of customary law through their own legislation
• 1927 = colonial laws consolidated into Black Administration Act (BAA) that managed
indigenous affairs
• Constitutional era came = little of BAA remains as it did not survive constitutional scrutiny
• Modern SA law thus a mixed, pluralistic system:
o 1) Roman-Dutch law as influenced by English law adapted by legislation and court
decisions (common law)
o 2) Indigenous laws (customary law)
• SA law of succession thus a dual system that consists of 2 main branches:
o Common law of succession = testamentary and intestate succession
o Customary law of succession = only intestate succession rules
• Common law + customary law as equal status, 4 issues arises:
o Customary law must be compatible with Constitution + is amendable by legislation
o Decision as to which law (common or customary) is applicable to a particular estate
is made by applying choice of law rules derived from statute or judicial precedent
2
,LAW OF SUCCESSION Notes by Mieke Schwartz
IURI 313 079 439 4224
o Because customary law is not a single, unified system of law, but consists of laws of
various traditional communities in SA, section 1(3) of Law of Evidence Amendment
Act provides specific rules for dealing with conflict between customary laws
o Differences between common and customary succession laws are primarily based
on societal and economic considerations
§ Customary law of succession = wants to preserve family unit and
community after death of deceased
• Heir steps into deceased’s shoes + acquires all rights and obligations
regarding certain property
§ Common law of succession = regulate and transfer deceased’s wealth and
allow deceased more freedom to dispose of his property as pleased
Which branch of law to apply – Choice of Law rules?
• Duality of SA legal system leads to conflicting rights/obligations Choice of Law
rules
• When this happens = court must apply “choice of law rules” or
“interpersonal conflict of laws” to determine which law is applicable TESTATE LAW
OF
INTESTATE
LAW OF
• Choice of law rules can be derived from statute + judicial precedent SUCCESSION SUCCESSION
Testate • Prior to 1994 = common law and customary law kept separate each with their
Law of own statutes
Succession • Section 23 of BAA = prohibited black persons from disposing certain property
through a will: (a) moveable house property, (b) quitrent land
(deceased • Could dispose of (a) family property, (b) other immoveable property that is not
died with a house property by means of a will = common law testate succession applied
valid will) TODAY
• If there is a valid will + no provision indicating applicable law = common law of
testate succession applies
• Armchair evidence rule = court places themselves in testator’s shoes to
determine his intention at time will was drafted
o Common law principle = documents must be read considering the
circumstances that existed at the time of drafting it
o Customs/culture of testator = factors court take into account
Intestate • Prior to 1994 = Section 1(4)(b) of the Intestate Succession Act: Estate subject
Law of to section 23 of BAA (i.e. intestate estates of black persons), fell outside the
Succession provisions of the Intestate Succession Act
(deceased • Intestate estates had to devolve according to rules laid down in special
died without regulations under BAA based on inter alia the form of marriage and
a valid will) matrimonial property system
• If deceased concluded a civil marriage in community of property (in CoP) =
estate devolve according to common law
• Deceased concluded customary marriage = customary laws would have
applied
3
, LAW OF SUCCESSION Notes by Mieke Schwartz
IURI 313 079 439 4224
TODAY
Bhe v Magistrate, Khayelitsha case
® CC made major changes to the choice of law rules to be applied to
intestate estates of persons living under customary law
® Court declared unconstitutional and invalid:
o Section 1(4)(b) of Intestate Succession Act
o Section 23 of BAA and regulations under this section
® Court ordered = from 15 October 2004 the Intestate Succession Act should
apply to all intestate estates, irrespective of the culture of the deceased
® SA must have unified system of administration of estates under Master’s or
magistrates’ office’s supervision depending on value of estate, not race of
deceased
• Customary law now only applies if chosen by freedom of testation (clause)
• 2009 = RCLSA (commenced 2010): estate of any person who is subject to
customary law that does not devolve i.t.o a will, must devolve according to the
Intestate Succession Act read with the RCLSA
o Disputes = RCLSA provision giving Master of High Court jurisdiction
Illustrate how the Law of Succession Relates to Other Fields of Law
1. Private International Law
• Person with foreign nationality executed will in SA OR South African executed will in
another country = will law of country where will was executed OR law of country where
testator was domiciled apply when executing the will?
• In SA = no unified code dealing with private international law of succession + applicable
rules found in common law and different legislation read together
• Intestate succession
o Movables = law of country where deceased was domicile
o Immovables = law of country where property is situated
• Testate succession
Statute
o Formal validity of wills = section 3bis of the Wills Act
o Section not retrospective = applies only to testator who died after 3 Dec 1970
o Act says will must comply with formalities of at least one of the following country’s
legal systems to be valid in SA law:
§ Movables
NB = country • Country where will was executed
where person died • Country where testator was domiciled or habitually resident at either
irrelevant (not time of execution of the will or death
listed in section)
3bis • Country where testator was citizen at time of execution of will or death
§ Immovables = any of above OR law of country where property is situated
Common Law = applies if testator died before 3 December 1970
§ Movables = Law of country where will was executed
§ Immovables:
o Law of country where property is situated, or
o Law of country where will was executed, and
o Possibly law of country where testator was domiciled
2. Law of Evidence
• Law of Evidence Amendment Act – section 1(3) = provides rules for dealing with conflict
between different customary laws
4
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