Chapter Two

Intestate Succession
A person
can die

Wholly Partially Intestate Wholly

Testate Partially Testate Intestate

When does a Person Die Intestate

Having executed a valid will, which

has subsequently become wholly of
partially inoperative

With a
valid will Intestate Succession
that fails to Act is applied to an
When no
dispose of estate in the
will has
ALL of the following instances
been left
deceaseds
assets

Leaving a document that purports to be a will

but does not comply with the formalities or is
not condoned in terms of Section 2(3) of the
Wills Act
 Where a deceased dies
without any will at all
their intestate estate
When a Testator dies leaving a Valid will vests on the date of their
which took effect on date of death, and death when their
at a later time became inoperative intestate heirs have been
(wholly or partially) their estate vests on determined
the date when it first became factually
certain that their will was inoperative.
Intestate heirs would be determined at
date of Intestacy not date of death

Harris v Assumed
Administrator , Estate
McGregor
Tackles the issue of Vesting of
Rights.

The deceased executed a will in 1941

Deceased died in 1943
Testator bequeathed his estate to his wife
On her death the estate was to go to the children born of the marriage
Should there be no children born then on the wife’s death, the estate to
go to deceased brother. Should brother predecease the testator then
the estate shall go the brothers children.
The brother predeceased the Wife leaving no children. As a result
Intestacy occurred.
If it was determined that intestacy was at date of death then the
deceased Mother would benefit and if it was determined that intestacy
occurred at date of Brothers death then the Wife’s estate would benefit.

Applying Harris to Four instances of Intestacy

*No Will: Date of Death/Date L&D Account Lodged with Master
*Subsequent Invalid will(Whole or partial): Date of first Factual Determination of Invalidity
*Valid will that does not dispose of ALL Assets: remaining assets will devolve according to intestate Succession Act
*Document that purports to be a will but not compliant with formalities: Date of death/ Date L&D account Lodged with
Master
 If a child is determined to be
Are deemed to be the
extramarital after
child of the adoptive
application of s40 of Child
parents and not the
Status Act then that child
natural parents. Adoption
will only be capable of
terminates all legal rights
inheriting from the mother
between child and natural
and her relatives and not the
parents.
father.

Children born from artificial

Adopted Children
Insemination

Nasciturus
fiction.
Child must
Capacity to Only
Company
CC or

Inherit
Unborn Juristic
be natural persons
conceived Children
persons cannot
at date of inherit
vesting.
Intestate

Extramarital, Adulterine and Children born of a surrogate

Incestuous Children arrangement

If a surrogacy agreement is
All children conceived deemed to be invalid then the
under any child born will be deemed to be
circumstance can the child of the surrogate and
inherit from both will only be eligible to inherit
parents and their from the mother and her relative
only.
relations.