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Law of Succession Test 1: Questions
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Outline the basic function of the law of succession.
Outline the basic function of the law of succession.
The LoS can be defined as the totality of legal rules which control the transfer of those assets of the deceased which are subject to distribution among beneficiaries OR those assets of another which the deceased had the power of disposal.
There are various alternatives with regards to what could happen to your assets when you die, namely they can be destroyed, given away or the State could get everything. All three of these alternatives, however, are socially destructive.
The basic function of the LoS is to carry on social order, to serve as an incentive to work hard and foster individual responsibility, and serves as a mechanism by which the individual can exercise their own freedom (freedom of testation).
The LoS is further influenced by social factors such as family, indigenous communities, wealth, age, changes in society like divorce rates, cohabitation, artificial insemination etc. as well as various economic factors such as changes in the nature of wealth, for example the shift to financial assets and human capital rather than just land for example.
(c) In Union Government (Minister of Finance) v Olivier 1916 AD 74 90 the court declares: “In determining who are the heirs ab intestato [the intestate heirs] of a deceased person regard must be had to the date of his death.” Explain and qualify this statement with reference to the decision in Harris v Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A).
(c) In Union Government (Minister of Finance) v Olivier 1916 AD 74 90 the court declares: “In dete...
(c) In the Harris case the court made it clear that the statement quoted from the Union Government case is correct, but was only meant to cover the situation where the deceased had died intestate (thus without a valid will). In the Harris case, the testator did not die intestate, but with a valid will that became inoperative at a later stage. In the Harris case, the intestate heirs were therefore not determined at the testator’s death (1943), but later when his will became inoperative (1979). On that interpretation, the spouse was thus the only heir, based on the legislation then applicable.
E dies intestate and she is survived by the following persons:
(a) her mother M;
(b) her sister A;
(c) her half-brother B (B was born of a previous marriage between E’s predeceased father P and X); and
(d) her half-sister C (C was also born of the previous marriage between E’s predeceased father P and X).
Explain with detailed motivation how E's intestate estate will be distributed if you also take the following information into account:
(a) E’s intestate estate amounted to R1,2 million.
E dies intestate and she is survived by the following persons:
(a) her mother M;
(b) her sister A;
...
E is not survived by a spouse, descendants or parents, but by one parent and the descendants of a predeceased parent. S 1(1)(d)(ii) of the Intestate Succession Act 81 of 1987 is thus applicable. (NB: see the remark regarding section numbers at question 2 above.) E’s estate thus divides into two halves and:
• M inherits ½ of the estate = R600 000.
• The descendants of the predeceased P inherit the other ½ of the estate per stirpes by representation. A, B and C thus each inherits ⅙ (thus ⅓ of P’s ½) = R200 000 each.
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