The document is a set of lecture notes for a course on the Law of Succession in South Africa. The notes explain the nature of the Law of Succession, its place within the broader legal system, and the different types of succession, including testate succession (where a person dies with a valid will)...
LEARNING UNIT ONE - INTRODUCTION TO THE SOUTH AFRICAN
LAW OF SUCCESSION
LO1: Explain the nature of the Law of Succession and de ne it:
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 quali ed to succeed the person. The rules of law of succession determine
how the quali ed bene ciaries are identi ed and how the scope of the respective bene
ts is established.
The law of succession is de ned as: the totality of the legal rules which control the
transfer of those assets of the deceased which is subject to distribution among bene
ciaries, 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:
• It is viewed objectively.
• Constitute parts of the law relating to patrimonial, which is a subdivision of private
law.
• Law succession can only function successfully in a system that recognises the
right to private property, these systems are one in which the economy is based on
capitalist considerations.
• The law of succession ful ls an economic function as it regulates the transfer of
wealth upon a persons death this is supported by the principle of freedom of
testation. (freedom of the station means that a person may within certain
limitations decide on the distribution of the assets at the time of such persons
death).
• It for fold a social function such function is associated particularly with maintaining
and protecting the family as a social unit. (this is why the law succession is in
uenced by the social trends and other developments affecting the family examples
include a higher divorce rates and increase in the number of cohabiting
relationships).
LO3: Explain what the legal position is in respect of deceased s estates:
• A bene ciary never becomes owner of the inherited assets immediately upon the
death of the deceased. this is due to the system of the administration of a states
that replace the common aw system of universal succession. succession is that in
its self not a mould of acquiring ownership. The most that a bene ciary can obtain
upon the death of the deceased if vesting of rights has already occurred is a claim,
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which is a 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 state the
executive must transfer the book with assets to the bene ciary assuming obviously
that the liabilities of the estate do not exceed its assets. Only upon transfer of the
assets will the bene ciary become the owner of the assets.
LO4: Identify the basic requirements for the law of succession:
• A pre-requisite for succession is that the deceased must have died. The only
exception to this rule is a quarter pronouncing a presumption of death and making
an order for the division of the estate. The bene ciaries must also be alive and
competent at the time in which the estate is open for dissolution, unless the
testator has made provisions for the bene ting of person is born later (nasciturus
ction). The nasciturus interests will be kept in temporary suspension until he or she
is born alive at which time the rights can be bestowed onto them.
• If a person dies before the state falls open no rights conversed in him or her. If
people die simultaneously they also not able to inherit mutually from one another.
The current legal position is that the sequence of deaths is a factual question that
must be resolved by means of a medical and other evidence. If there is no
evidence the court will accept that the deceased persons died simultaneously.
LO5: Differentiate between the common law of succession and the customary law of
succession:
Common law of succession are the legal rules that have been incorporated into our
law from the common law, namely Roman-Dutch Law ▶ Customary law of
succession refers to the legal rules of succession that have developed from
customary law of the indigenous people of South Africa
• Section 23 of the Black Administration Act contained a codi ed version of
customary law of succession parallel system, different in concept and in effect, to
that which ows from the Intestate Succession Act, which is designed to apply to all
intestate estates other than those governed by section 23 of the Act.
Customary law is recognised in our law but subject to the Constitution and cannot
be in con ict with it.
• Big distinction between the two can be found in Bhe case: The rules of the
customary law of succession were consequently mainly concerned with
succession to the position and status of the deceased family head rather than the
distribution of his personal assets.
Explain choice of law rules with reference to Bhe v Magistrate Khayelitsha
2005 91) SA 580 (CC.
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