ERF 222 Study Guide 2023

Study Guide
Department of Private Law
Law of Succession: ERF 222
July 2023
Table of Contents
SECTION A: GENERAL ORGANISATION ............................................................... 4
1 Welcome .......................................................................................................... 4
2 Educational approach ....................................................................................... 4
3 Responsibilities of the student .......................................................................... 6
4 Notional hours .................................................................................................. 7
5 Lecturers and consultation times ...................................................................... 7
6 Study material and purchases .......................................................................... 8
7 Grievance procedures ...................................................................................... 9
8 Assessments, sick tests and perusal .............................................................. 10
9 How to use the study guide ............................................................................ 11
10 Module pacer/Weekly plan............................................................................ 12
11 Application of UP curriculum drivers .......................................................... 14
12 Plagiarism ................................................................................................... 17
13 Support services ......................................................................................... 18
SECTION B: STUDY COMPONENT ....................................................................... 21
Syllabus Theme 1: Introduction, definitions and background ............................ 21
Study Unit 1.1 Background ................................................................................. 21
Study Unit 1.2: Vesting of the rights of beneficiaries with regard to assets of the
estate – An introduction ........................................................................................ 22
Study Unit 1.3: Requirements for succession: ...................................................... 23
The testator must be dead ................................................................................ 23
The beneficiary must be alive at the time of delatio .......................................... 23
Beneficiaries must not be incapable/ unworthy of inheriting .............................. 24
Syllabus Theme 2: ............................................................................................ 24
Study Unit 2.1: Definition and terminology ............................................................ 24
Study Unit 2.2: Rules of the Law of Intestate Succession ..................................... 25
Study Unit 2.3: Adopted children .......................................................................... 26
Study Unit 2.4: Children born out of wedlock; artificial fertilisation and surrogate
motherhood agreements ....................................................................................... 26
Study Unit 2.5: Renouncement by an intestate heir .............................................. 26
Study Unit 2.6: Unworthiness of an intestate heir ................................................. 27
Study Unit 2.7: Law of Intestate Succession and Customary law ......................... 27
Syllabus Theme 3: The Law of Testate Succession ......................................... 28
Study Unit 3.1: General principles, wills, codicils, any other testamentary writing
.......................................................................................................................... 28
Study Unit 3.2: Testamentary capacity ................................................................. 29
Study Unit 3.3: Formalities in the execution of wills ......................................... 30
Study Unit 3.4: The court's power to declare a will valid ................................... 32
Study Unit 3.5: Formalities in amendment of a will ............................................ 33
Study Unit 3.6: Revocation and revival of wills .................................................. 33
Study Unit 3.7: Capacity to inherit ..................................................................... 34
Syllabus Theme 4: Freedom of testation and the content of wills .................... 35
SECTION A: GENERAL ORGANISATION
1 Welcome
Dear Students,
It is with great joy that we welcome you to the module Law of Succession 222 (ERF 222). We
hope and trust that you are all well after an eventful first semester! Please be assured that
we carry your best interests at heart and will do our best to guide you through this module.
We are, however, to a large extent, dependent on your goodwill and positive attitude. Please
note that we are here for you and as such ask that you be free to contact any of us when you
have any queries regarding the module. We are all in this together. As such, we wish you the
very best with the semester.
Ms Kgopotso Maunatlala (Course coordinator & Lecturer)

Ms E Rinaldi (Lecturer)
Ms Mansah Amoah (Academic Associate)
2 Educational approach
(a) Law of Succession 222 will predominantly be offered face-to-face in 2023 while
provision will also be made for hybrid and blended learning (see point ‘e’ below).
(b) The University of Pretoria ascribes to a flipped-learning methodology which requires

students to come prepared to class, engage during lecture/class slots and allows the
students the opportunity to consolidate their knowledge and organise it into meaningful
hierarchical patterns after class.
(c) In respect of the “prepare” phase, the Law of Succession 222 Study Guide stipulates a
clear, weekly work schedule so that students can keep up with the extent of the work for
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© 2023 University of Pretoria
each week independently. Students are encouraged and empowered in their
preparation for an upcoming class by providing them with detailed source references
and study objectives pertaining to different study units (topics) in advance. We will also,
in advance, inform you on ClickUP what work to read in preparation for class.
(d) During the “engage” phase in class (whether face-to-face or online), we will address the
important aspects, explain concepts and focus on some of the practical exercises and
important study objectives. We will evoke and encourage discussion as far as possible.
We will engage students through inquiry-led education. Hence, students are encouraged
to come to class prepared, so that they may better understand the work and ask those
questions related to the work that will improve their understanding and comprehension
of the work.
(e) From time to time we will provide online lectures which will be made available in the
form of narrated PowerPoint slides. This is in line with the Hybrid learning approach.
Blackboard Collaborate sessions may be scheduled occasionally, if necessary.
(f) A definite and calculated “consolidate” phase will be implemented. Tutorial type
questions that are problem-based will be discussed on a weekly basis. By this means
you are enabled to revise the provided material (textbook chapters; legislation; case law;
journal articles) and lectures by applying the theoretical principles to a set of facts based
on the week’s work. We will also open a Discussion Forum on ClickUP where you can
discuss these questions among yourselves. No question is stupid! So do not be afraid
to ask questions, especially in tutorials or on the discussion forum, as this may help
other students as well.
(g) The aspects covered in the in-person face-to-face lectures, the narrated slides, the
corresponding pages in the textbook, the Study Objectives (below), and the Sources in
the Source References to each Study Unit, must be studied for assessment purposes.
(h) The textbook, even though a student’s textbook is still very comprehensive. Without
detracting from our high academic standard, we will mainly focus on the most important
aspects pertaining to this branch of law. Any aspect or case law that appears in the
textbook in relation to certain Study Units or topics that are NOT addressed in the
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lectures/slides can simply be read through and you will NOT be assessed on such
aspects or cases. The lectures may deviate from the sequence of the topics
followed in the textbook.
(i) Each Syllabus Theme or Topic is divided into Study Units with Study Objectives (see
below). The sources provided in the Source Reference with regard to each Study unit
must be studied in order to answer the study objectives. The study objectives as such,
are NOT assessment/examination questions but merely a guide. The lectures and
narrated PowerPoint slides will focus on these Study Objectives.
(j) Assessments will relate to authentic problem-solving scenarios (see par 8(b) below).
(k) Lecturers can be contacted via e-mail at any time, but you will receive a response
during their consultation times as provided herein. You can also make use of the
Discussion Board Platform on ClickUP. E-mails must be polite and specific (consult
the UP-email etiquette guide).
https://clickup.up.ac.za/ultra/courses/_162187_1/cl/outline?legacyUrl=%252Fwebapps
%252Fblackboard%252Fexecute%252Fnautilus%252FnotificationResponse%253Fact
ion%253Ddispatch%2526userId%253D_876245_1%2526courseId%253D_162187_1
%2526sourceId%253D_609160_1%25257Cblackboard.data.announcement.Announc
ement%2526parentId%253Dnull%2526sourceType%253DAN%2526eventType%253
DAN_AVAIL
(l) We propose to continue our effort to help you to explore the discipline/field and
understand it; use study methods appropriate to the discipline field; understand the
legitimate ways of adding to knowledge in the field of the Law of Succession; question
theory and practice; make the connections; see the patterns; apply flexibly what is learnt
within specific contexts or in solving specific, open-ended problems; and generate new
questions and new knowledge. As dedicated lecturers, we are confident that we will be
able to meet these expectations in respect of our lecturing responsibilities.
3 Responsibilities of the student
(a) Do prior reading of material provided in the Source Reference to each Study Unit
in preparation for lectures.
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(b) Attend the face-to-face lectures and listen to the narrated PowerPoint slides.
(c) Study the relevant case law and other study material, including relevant
legislation.
(d) Work through the provided Study Objectives.
(e) Attend all tutorials
(f) Work through the tutorial exercises and participate in tutorials.
(g) Ask us when you don’t understand something.
(h) Work throughout the semester, study hard and complete the required
assessments.
4 Notional hours
Manage your time effectively. The number of credits allocated to a module give an indication
of the volume of learning required for the completion of that module and is based on the
concept of notional hours. Given that this module carries a weight of 15 credits, it follows that
you should spend an average of 150 hours of study in total on the module (1 credit= 10
notional hours). This includes time for lectures, tutorials, reading the textbook and other
prescribed material, and preparation for tests/assessments and the writing of tests
themselves. This means you must spend approximately 10 hours per week on this module for
the 14 weeks it is presented.
5 Lecturers and consultation times
5.1 Please note that you should refer ALL the ERF 222 queries regarding classwork to the
the following email: lawofsuccessionup@gmail.com
No email should be addressed to the personal email addresses of the lecturers and the
academic associate. In your email please include the following:
Subject: Topic of query, lecturer being addressed
e.g. Calculation of stipes, Ms Maunatlala
7
Role & Office No. Name Consultation Times
Lecturer (Course coordinator) Ms Kgopotso Maunatlala Mon: 10:30 – 13:30

Wed: 09:00 – 11:00
Law 4-13
Fri: 11:30 – 12:30
Lecturer Ms. Elisa Rinaldi Mon: 10:00 – 13:00

Law 4-27 Tue: 14:00 – 16:00
Fri: 11:00 – 13:00
Academic Associate Mansah Amoah Mon: 12:00 – 13:00
Law 1-29 Thurs: 12:00 – 15:00
5.2 All tutorial queries should be addressed to the academic associate on ClickUP
Blackboard Collaborate. There will be a weekly tab opened for each tutorial topic under
which you may ask questions.
6 Study material and purchases

a) Jamneck, Rautenbach (eds.), Paleker, Van der Linde and Wood-Bodley: The Law of
Succession in South Africa 3rd ed. (2017) Oxford University Press.
It is available in both hard copy and E-book format. Both formats may be purchased from
the following:
Book shops offering delivery within lockdown
i. Oxford website: www.oxford.co.za/72-how-to-order-an-e-book-online
• Itsi (https://store.it.si/za/)
• Snapplify (www.snaplify.com)
• Hard copy ISBN: 9780190429167
• E-book ISBN: 9780190432638
In the Source Reference to each Study Unit, we will provide the pages of the textbooks,
for your convenience.
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Please note: the lectures and slides will to a large extent be a detailed discussion of the
content of the module.
b) De Waal and Schoeman-Malan Law of Succession 5th ed. (2015) Juta (Recommended but
not prescribed).
7 Grievance procedures
All issues should be reported in writing, providing details of the complaint or issue. First, raise
the complaint or issue with the class representative (to be announced and voted for via a
ClickUP poll) or lecturer(s) concerned. The primary function of the class representative is to
serve as a two-way communication channel between the class and the lecturer(s). The class
representative will consult with the lecturer(s) and provide you with feedback from the
lecturer/s. If the matter, however, remains unresolved you should consult the module
coordinator (Ms. Maunatlala).
Where the coordinator is unable to or fails to resolve the matter, you should consult the Head
of the Department, Professor Steve Cornelius (steve.cornelius@up.ac.za). Should the matter
remain unresolved, you may approach the Student Advisory and thereafter, the Deputy Dean
of the Faculty, Professor Charles Maimela (charles.maimela@up.ac.za).
Failure to follow the procedure above may result in unnecessary delays.
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8 Assessments, sick tests and perusal
(a) The semester mark comprises of the following assessment opportunities:
Date & Venue Weighting
• Assessment on Intestate Succession • TBA 20%

• Online
• Semester test 1 (sit-down) • 24 August 30%
• Centenary 1-6
• Semester test 2 (sit-down) • October 30%

• Thuto 1-1; 1-2 & 3-1
• Assessment on Administration of • TBA 20%

Estate (students who are registered to • Online
write the tentamen for credits should
write this assignment)
Assessments will be focused on problem-solving and practical application of the relevant legal
principles. Guidance on how to approach these types of questions will be dealt with in the
lectures and weekly tutorials.
(b) Level and approach to test and examination questions
HEQF 40% - knowledge of a field of 60% - analysis of

discipline, understanding and knowledge in a specific
LEVEL 6
knowledge of application etc context, etc.
60% > of the questions will therefore relate to analysis and application of knowledge.
(c) Arrangements regarding Sick tests and perusal will be communicated.

An announcement will be made on ClickUP.
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(d) Ratio of semester and examination marks for purposes of final mark (in relation to
students who are not eligible for promotion as per par. e)
Semester mark: 50%
Examination mark: 50%
In order to pass, a student’s final mark (the average of the semester mark and the
examination mark) must be at least 50% and the examination mark not less than 40%.
In other words, if you receive 75% as a semester mark but 39% for the exam, that is a
fail.
A semester mark of 40% is required for examination entrance.
9 How to use the study guide
9.1 This study guide is divided into various syllabus themes or topics, namely:
a) Introduction, background, definitions

b) The Law of Intestate Succession
c) The Law of Testate Succession
• General principles
• Testamentary capacity
• Formalities in the execution of wills
• Revocation and revival of wills
• Capacity of a beneficiary to benefit
d) Freedom of Testation and the Content of Wills

• Pure bequest; Conditions; Time clauses; Modus; Massing of estates;
Substitution, Usufruct, Trust
• Accrual (common law)
• Collation
• Interpretation and rectification of Wills
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e) Succession by contract (Pactum Successorium)
f) Administration of Deceased Estates
Each Syllabus Theme or Topic is divided into Study Units.
9.2 The work, which must be studied with regard to each Study Unit, is indicated under the
title "Source References". The lecturer may supplement the Study Objectives and
learning content during lectures. Older cases not available on the internet will be
discussed in the lectures.
9.3 Each Study Unit contains Study Objectives that you should strive to master.
9.4 In order to master the Study Objectives, the following approach is recommended:
a) The Study Objectives of each study unit as well as the study content as stated in the
Source References must be read through before each lecture.
b) Attend the face-to-face lectures and “engage” in class.
c) Test yourself afterwards, making use of the Study Objectives.
10 Module pacer/Weekly plan
Date Topic Lecturer

24 July 2023 - 28 July • Welcome Ms K Maunatlala
2023 • Study guide
• Introduction and basic concepts
31 July – 4 August 2023 • Intestate Succession Ms K Maunatlala
7 & 8 August 2023 • Intestate Succession Ms K Maunatlala
11 August 2023 • Intestate Succession Ms K Maunatlala
14 & 15 August 2023 • Law of Testate Succession Ms E Rinaldi

• General concepts
• Testamentary capacity
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16 & 18 August • Factors influencing free testamentary Ms E Rinaldi
expression
21 & 22 August • Formalities of the execution of wills Ms E Rinaldi
24 August 2023 Semester test 1 17:30 – 19:00

25 August - 1 September • Formalities for the execution of wills Ms E Rinaldi
continue
• Court’s power to condone: S2(3)
• Amendment of wills
4 -13 September • Revocation Ms E Rinaldi

• Capacity to inherit
• Freedom of testation
• Influence of the Constitution
• Delegation of testamentary power
26 - 29 September • Content of Wills Ms K Maunatlala
2 - 6 October • Content of Wills continue Ms K Maunatlala

• Common law accrual
• Collation
9 -11 October • Interpretation Online

• Rectification
13 October • Semester test 2 17:30 – 19:00
16 – 31 October • Administration of Deceased Estates Ms K Maunatlala
02 November • Assignment 2 – Administration of estates Online
03 – 08 November • Possible Revision Class TBA
Final Exam
25 November 2023
13
11 Application of UP curriculum drivers
ERF 222 addresses curriculum transformation by incorporating the University of Pretoria’s

drivers of curriculum transformation. The extracts in the left-hand column of the upcoming
table stem from the document Work Stream on Curriculum Transformation at the University
of Pretoria Reimagining Curricula for a Just University in a Vibrant Democracy, which sets out
the curriculum transformation objectives that affect the approach of the ERF 222 course. In
the right-hand column of the table, you will find references to some – but not all – of the
manners in which ERF 222 strives to incorporate the specific drivers into its curriculum:
CURRICULUM TRANSFORMATION DRIVERS ERF 222
Responsiveness to social context The nature, philosophy and principles of the

o A transforming curriculum is one that Law of Succession within the South African
registers and is attuned to local and global constitutional, legal, social and economic
contexts, histories, realities and problems. milieu are dealt with, wrt –
o A transforming curriculum acquires
concreteness, relevance and purpose by
o The development of the Law of
being located within a specific social,
Succession from its pre-constitutional
economic, environmental, intellectual, political
roots to contemporary South African
and legal context. Questions concerning
sources that provide the framework for
development, social justice and globalisation,
this field of law;
among other issues, should be central to
teaching and research.
o The social and economic function of
the Law of Succession in society is
appraised;
o The needs of the contemporary society
when it comes to Law of Succession
jurisprudence by dealing with the need
to apply public policy considerations to,
for example freedom of testation;
o Due to the dual character of the Law of
Succession, which has both common
law and customary law application, the
course touches on the differences
14
between these two branches of
succession, where special mention of
The Reform of Customary Law of
Succession and Regulation of Related
Matters Act is made;
o With possible future careers and the
potential future roles of the student in
society in mind, dealing with the most
important aspects of the Law of
Succession that an undergraduate
student has to be familiar with.
Epistemological diversity The view and experiences of different
Curriculum transformation is a constant sectors of society is theoretically
encouragement of epistemological diversity. considered by –
Diversifying epistemology means bringing

marginalised groups, experiences, knowledge and Encouraging students to highlight and question
worldviews emanating from Africa and the Global the impact, value and inadequacy of the Law of
South to the centre of the curriculum. It involves Succession to different sectors of society
challenging the hegemony of Western ideas and

paradigms and foregrounding local and indigenous
conceptions and narratives, while recognising the
global context.
Renewal of pedagogy and classroom practices A variety of teaching and learning aims,
Curriculum transformation involves continuously methodologies and approaches is used
rethinking and re-evaluating the ways in which we including –
learn and teach.
This includes responsiveness to and training in new • Emphasis on students taking responsibility
pedagogical methodologies and approaches within for digesting and analysing the learning
disciplines. material, with lecturers
taking the role of learning facilitators;
• Focus on writing and mathematical skills;
• Lecturers are receptive to new modes of
delivery, for example through technological
15
innovations. Emphasis is placed on inquiry-
led teaching and learning;
• Lectures are presented with the aid of MS
PowerPoint slides, which are available to
students via ClickUP.
• In addition, where possible, concepts are
given social relevance and context through
the use of the Discussion Board on ClickUP
and Blackboard Collaborative sessions.
• A hybrid approach is used to conduct
assessments. ClickUP is used for
formative assessments, such as Online
assessments. Written tests are scheduled
for the summative assessments, such as
two Semester tests and the final
examination.
• The course has a strong focus on
application and problem-solving type
questions;
• Emphasis is on equipping students with
skills to contribute to society and be
efficient professionals. Competencies
include Literacy, numeracy,
conceptual/abstract thinking, critical
thinking, problem-solving, communication
and service to society and community.
An institutional culture of openness and critical • The module critically reflects on the
reflection transforming curriculum principles applicable to intestate succession
exhibits an understanding that a ‘hidden curriculum’ and freedom of testation versus
can be found in the spaces, symbols, narratives and Constitutional principles and public policy;
embedded practices that constitute the university and, • Building on and challenging existing views
in the diversity, or lack thereof, of the staff and student and dogmas, such as the public/private
cohort. divide regarding discrimination in wills and

trusts;
• Encouraging students to take responsibility
and engage with the Faculty Student
16
Advisor and to access other university
student programmes.
12 Plagiarism
Plagiarism is a serious form of academic misconduct. It involves both appropriating someone
else’s work and passing it off as one’s own work afterwards. Thus, you commit plagiarism
when you present someone else's written or creative work (words, images, ideas, opinions,
discoveries, artwork, music, recordings, computer-generated work, etc.) as your own. Only
hand in your own original work! Indicate precisely and accurately when you have used
information provided by someone else. Referencing must be done in accordance with a
recognised system. Indicate whether you have downloaded information from the Internet. For
more details visit the following websites:
https://www.up.ac.za/en/about-up/article/2013215/why-learnabout-plagiarism.
Please download a QR code reader on your cell phone. To download a QR code reader open
your mobile app store (App Store, Google Play or Windows Marketplace) and search for QR
code readers. How do I avoid overstepping plagiarism? The mark
Why learn about/ What is plagiarism?
plagiarism?
17
13 Support services
Please download a QR code reader on your cell phone. To download a QR code
reader open your mobile app store (App Store, Google Play or Windows Marketplace)
and search for QR code readers.
(a) Safety in the evening and emergencies

• For any safety or emergency-related matters, e.g. if you need a security officer
to accompany you from your residence to campus, phone the Operational
Management Centre (details at the back of your student card).
• The 24-hour, multi-disciplinary UP Crisis Line offers professional and confidential
support to victims of crime in times of trauma. For assistance and immediate
action, phone the UP crisis Line on 080 000 6428.
• Hatfield residence students: From 18:00 till 06:00 security officers are available
to escort you (on foot) to and from your residence or campus anywhere east of
the Hatfield Campus through to the Hillcrest Campus.
(b) E-learning support

• Report a problem you experience to the Student Help Desk on your campus.
• Visit the open labs in the Informatorium Building or IT labs on your campus to report
problems at the offices of the Student Help Desk.
• Approach the assistants at the help desks—campus specific (for example:
adjacent to the Student Computer Laboratories in IT Building, NW2, CBT or Aldoel
Building IT labs, etc).
• Call 012 420 3837.
• Email studenthelp@up.ac.za
(c) Other support services:
Think carefully before www.up.ac.za/fly@up email:
18
dropping modules (after the fly@up.ac.za
closing date for amendments or
FLY@UP: cancellation
of modules).
The Finish
Make responsible choices
Line is
with your time and work
Yours consistently.
Aim for a good semester
mark. Don’t rely on the
examination to pass.
Academic support for https://www.up.ac.za/disabilityunit

students with learning
disabilities: Assistive 012 420 2064
technological services du@up.ac.za
Facilitation of test and email: examination accommodations Test
and
Disability Unit
exam concession applications
Accessible study venues and
a computer lab Referrals for
recommended textbooks in
electronic format
Student Provides counselling and therapeutic

Counselling support to
Unit students
012 420 2333
Also: Please make use of the Undergraduate Faculty Student Advisor Ms Farhana
Hassan (Farhana.hassan@up.ac.za) in this regard!
012 420 5233 Promotes and
Student assists students 012 420 3423 with health and wellness
Health
Services
careerservices@up.ac.za 012
Provides support for UP
The Careers
420 2315
Office
students and graduates as they prepare for
their careers
24-hour Operational 012 420-2310
Department of Management Centre Security 012 420-2760
Services 24-hour Operational Manager
Crisis Line 083 654 0476 0800 006 428
19
012 420 2371/4001
Enquiries concerning studies,
Department of Roosmaryn Building, Hatfield
accommodation, food, funds,
Student campus
social activities and personal
Affairs
problems
Centre for
Sexualities, Identifies and provides training
AIDS and of student peer counsellors
Gender
012 420 4391
Fees and http://www.up.ac.za/enquiry

Funding www.up.ac.za/fees-andfunding
012 420 3111
012 420 3051

studenthelp@up.ac.za
IT Helpdesk For student IT-related queries
20
SECTION B: STUDY COMPONENT
Syllabus Theme 1: Introduction, definitions and background

Study Unit 1.1 Background
Source references:
Jamneck et al 1-23; De Waal and Schoeman-Malan 1-3; Bhe v Magistrate, Khayelitsha 2005
1 SA 580 (CC)
Study objectives:
After studying this study unit, you should be able to:
1. Define the Law of Succession
2. Differentiate between testate and intestate succession
3. Review the manner (ways) in which succession take place
4. Reflect on the “Dual Character” of the Law of Succession and take note of The
Reform of Customary Law of Succession and Regulation of Related Matters Act
11 of 2009 (See Appendix C to the Textbook in Jamneck et al). This Act will be
discussed in more detail in the Study Unit Theme dealing with Intestate Succession
5. Differentiate between the Law of Succession and Administration of Deceased Estates
6. Indicate how you would classify the Law of Succession as part of the objective law
7. Be able to discuss the purpose and importance of the Law of Succession in its broader
social context
8. Define the following concepts (See Terminology Jamneck et al 10):
• Deceased
• Testator
• Freedom of testation
• Estate
• Will
• Codicil
• Beneficiary (legatee distinguished from an heir)
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• Executor
• Delatio, dies cedit and dies venit (see Study Unit 1.2 below)
Please note that you will not be assessed on definitions as such. Knowing and
understanding these concepts merely serve as background to the module.
Study Unit 1.2: Vesting of the rights of beneficiaries with regard to assets
of the estate – An introduction
Terms: Delatio; dies cedit; and dies venit
Source references:
Jamneck et al 144 (see slides); De Waal and Schoeman-Malan 7-10; Harris v
Assumed Administrator, Estate MacGregor 1987 3 SA 563 (A) (with regard to moment
of vesting in Intestate Succession); Greenberg v Estate Greenberg 1955 3 SA 361 (A);
Wessels v De Jager 2000 4 SA 924 (SCA).
Study objectives:
(a) This aspect of vesting and enforcement of rights is also covered in Study Unit 4.
(b) After studying this study unit theme, you should be able to:
1. Explain and distinguish between the abovementioned terms

2. Determine in a simple problem or clause when the estate “falls open” (delatio) and dies
cedit (vesting of rights) thus occurs (see examples in slides)
3. Determine in a given problem when dies venit (moment when acquired right becomes
enforceable) occurs (see example in slides)
4. Evaluate what a beneficiary acquires at most immediately upon the death of the
deceased (slides)
5. Evaluate who the “owner” (who is entitled to the assets?) of the assets is immediately
upon the death of the deceased
6. Critically evaluate whether vesting of rights take place automatically or whether

beneficiary has to adiate/accept the benefit first (slides)
7. Determine the moment of vesting in the event of intestate succession (Harris).
22
Study Unit 1.3: Requirements for succession:
The testator must be dead
Source references:
Jamneck et al 19-23; De Waal and Schoeman-Malan 11-12
Study objective:
After studying this study unit theme, you should be able to:
Explain what effect a court's pronouncement of a presumption of death has on this requirement.
The beneficiary must be alive at the time of delatio
Source references:
Ex parte Graham 1963 4 SA 145 (D); Section 2D(1)(c) of Wills Act; Greyling v Greyling 1978
2 SA 114 (T)
Study objectives:
1. Discuss the position of the unborn foetus, as an apparent exception to the mentioned
requirement (s 2D)
2. Analyse the position of the so-called “commorientes” in the case Ex parte Graham and
the principles set out therein
3. Know and explain the rule of interpretation regarding the determination of beneficiaries
(s 2D)
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Beneficiaries must not be incapable/ unworthy of inheriting
Study objective:
This matter is only briefly discussed here and will be fully dealt with later. (See also
Study Unit 2.6 in relation to the effect of unworthiness in Intestate Succession, as well
as Study Unit 3.7: Capacity to inherit).
Syllabus Theme 2:
Intestate Succession
Study Unit 2.1: Definition and terminology
Source references:
Jamneck et al 25-45; Intestate Succession Act 81 of 1987; Reform of Customary Law of
Succession and Regulation of Related Matters Act 11of 2009
Study objectives:
1. Define “intestate succession”

2. Know when the rules of the law of intestate succession come into operation
3. Understand and explain the following concepts and be able to apply them to a given set
of facts:
• competent heirs
• blood relations, ascendant, descendant
• parental
• per stirpes and representation
• succession per capita
• degree of consanguinity
• child's share
• direct line and collateral line
24
Study Unit 2.2: Rules of the Law of Intestate Succession
Source references:
Jamneck et al 38-50; Section 1 of the Intestate Succession Act; The Reform of
Customary Law of Succession Act 11 of 2009; Daniels v Campbell 2004 5 SA 331
(CC); Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC); Gory v Kolver 2007 4 SA 97
(CC); Govender v Ragavayah 2009 3 SA 178 (D), Hassam v Jacobs NO 2009 (5) SA
572 (CC); Laubscher v Duplan 2017 2 SA 264 (CC), Bwanya v Master of the High
Court 2021 (1) SA 138 (WCC), Wilsnach N.O v TM 2021 3 SA 568 (GP)
Study objectives:
1. Discuss the concept “spouse” and “parent” and “descendant” in section 1, as

amended and developed through case law as a result of the effect of
Constitutional principles, and the Reform of Customary Law of Succession Act
11 of 2009
2. Explain how the estate will be distributed if the deceased is:

• Survived by one or more spouses, but not by descendants
• Survived by descendants, but not by a spouse
• Survived by a spouse or spouses and descendants
• Not survived by a spouse or descendants, but by both parents
• Not survived by spouse or descendants, but by one parent and descendants
of predeceased parent
• Survived only by descendants of parents
• Not survived by a spouse, descendants, parents or descendants of parents,
but by other blood relations
3. Provide an overview of the effect of the Reform of Customary Law of

Succession Act 11 / 2009 on Customary Law of Intestate Succession
25
Study Unit 2.3: Adopted children
Source references:
Section 1(4)(e), Section 1(5) of Act 81/1987
Study objectives:
Explain the position of the adopted child in the law of intestate succession
Study Unit 2.4: Children born out of wedlock; artificial fertilisation

and surrogate motherhood agreements
Source references:
Section 1(2) of the Intestate Succession Act; Section 40(3) and section 297(1)(f) of the
Children’s Act 38 of 2005, VJV and Another v Minister of Social Development and
Another (CCT 94/22) [2023] ZACC 21 (29 June 2023)
Study objectives:
1. Discuss how provision is made for children born out of wedlock as intestate heirs
2. Explain the position of children born as a result of artificial fertilisation and the
effect of surrogate motherhood agreements
Study Unit 2.5: Renouncement by an intestate heir
Source reference:
Sections 1(6) and 1(7) of the Intestate Succession Act; Jamneck et al 43, De Waal and
Schoeman-Malan 33
Study objective:
After studying this study unit, you must be able to:
26
1. Discuss the legal consequences if a descendant repudiates/renounces
his/her benefit
Study Unit 2.6: Unworthiness of an intestate heir
Source references:
Casey v The Master 1992 4 SA 505 (N); Ex parte Steenkamp and Steenkamp 1952
(1) SA 744 (T); Pillay v Nagan 2001 1 SA 410 (C); section 1(7) of the Intestate
Succession Act
Study objective:
1. Appraise the legal consequences if an intestate heir intentionally or negligently
killed the deceased, or a conjunctissimus (see Jamneck et al 12; 113) of the
deceased.
2. Discuss the legal consequences if a beneficiary fraudulently made a will for the
deceased (Pillay)
3. Discuss the effect of s 1(7) of the Intestate Succession Act should a beneficiary
be unworthy/disqualified to inherit
Study Unit 2.7: Law of Intestate Succession and Customary law

Source references:
Jamneck et al 39 and 265-268; wrt the Reform of the Customary Law of Succession
Act 11/2009; Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004]
ZACC 17
Study objective:
After studying this study unit theme, you should be able to: Discuss the general
principles and effect of the above-mentioned Act on Intestate succession (Slides)
27
Syllabus Theme 3: The Law of Testate Succession
Study Unit 3.1: General principles, wills, codicils, any other

testamentary writing
Source references:
Jamneck et al 47-56; De Waal and Schoeman-Malan 53-57; Section 1 and 2(1)(a) of
the Wills Act; Ex parte Davies 1957 3 SA 471 (N); Oosthuizen v Die Weesheer 1974
2 SA 434 (O) (slides); Bosch v Nel 1992 3 SA 600 (T); Sterban v Dixon 1968 1 SA 322
(C); see the example of a will in Jamneck et al xxvi-xxvii
Study objectives:
1. Define the Law of Testate Succession
2. Describe the terms “will”, “codicil” and “any other testamentary writing” (S1)
3. Understand the basic prerequisites for the validity of a will gathered from the
definition of a “will”:
(a) Animus testandi and
(b) Testamentary capacity
(c) Volition (free expression of own free will as discussed above)
(d) Formalities S 2(1)(d) Wills Act
4. Explain whether the doctrine of “incorporation by reference” is recognised in our

law. In other words, appraise the requirements if the testator refers to another so
called “testamentary writing” in his/her will (see slides!) (Ex parte Davies and
Oosthuizen)
5. Distinguish between single will, joint and mutual wills
6. Understand the concepts adiation and repudiation and have a basic
understanding of the doctrine of election (discussed in more detail later in relation
to estate massing (Jamneck et al 156-160; see Study Unit 4.2.1 below)
28
Study Unit 3.2: Testamentary capacity
3.2.1: Requirements for formal testamentary capacity
Source references:
Jamneck et al 59-63; De Waal and Schoeman-Malan 38-44; section 4 of the Wills Act;
Essop v Mustapha and Essop 1988 4 SA 213 (D); Geldenhuys v Bornman 1990 1 SA
161 (EC); Spies v Smith 1957 1 SA 539 (A); Harlow v Becker 1998 4 SA 639 (D);
Thirion v Meester 2001 4 SA 1078 (T); Katz v Katz [2004] 4 All SA 545(C)
Study objectives:
1. Name and explain the formal requirements for testamentary capacity with
reference to section 4 and case law
2. Discuss the possible causes of mental “incapacity”

3. Explain the test or question in determining mental incapacity (slides)
4. Discuss the factors a court will look at in determining mental in capacity (Spies,
Katz)
5. Indicate and explain whether or not the following people have testamentary
capacity:
(a) Person under influence of alcohol; drugs
(b) People suffering from mental illness
(c) Old people; people who are ill; people who consumed medicine OR a
combination of these
(d) Deaf people
(e) Visionally impaired
(f) Illiterate people
6. Discuss the onus of proof and the relevant point of time for the determination of
testamentary capacity with reference to case law (Essop case and Geldenhuys
case)
7. Apply the relevant principles to a set of facts
29
3.2.2: Factors influencing free testamentary expression
Source references:
Jamneck et al 50-51; De Waal and Schoeman-Malan 44-47; Harlow v Becker 1998 (4)
SA 639 (D); Spies v Smith 1957 1 SA 539 (A); Kirsten v Baily 1976 4 SA 108 (C);
Thirion v Meester 2001 (4) SA 1078 (T); Katz v Katz [2004] All SA 545 (C)
Study objectives:
1. Explain, with reference to case law, what the factors are that can influence the
free expression of a testator's wishes as well as the legal consequences
2. Define undue influence (Spies)
3. Explain what does NOT constitute undue influence (Spies)
4. Discuss the factors a court takes into consideration in determining whether there
was undue influence (Spies)
5. Indicate and explain, with reference to case law, the interaction (Kirsten v Bailey)
between testamentary capacity (s4) and undue influence (slides) 6.
Discuss whether mere allegations of undue influence is sufficient (Katz)
Study Unit 3.3: Formalities in the execution of wills
Source references:
Jamneck et al 65-76; De Waal and Schoeman-Malan 53-67; Sections 1 and 2(1)(a) of
the Wills Act; Kidwell v The Master 1983 1 SA 509 (OK); Liebenberg v The Master
1981 1 SA 318 (W); Thaker v Naran 1993 4 SA 665 (N); Karani v Karani [2018] 1 All
SA 156 (GJ) (critical appraisal)
Study objectives:
(Your point of departure must be the position which has applied since 1 October
1992.)
1. Understand the concept “execution” of a will

2. Explain what is meant by "sign" and "signature" (section 1)
30
3. Appraise the applicable formality requirements if the testator signs the will with
his own signature
4. Appraise the applicable formality requirements if the testator signs the will with a
mark
5. Appraise the applicable formality requirements if someone else (amanuensis)
signs the will on behalf of the testator as well as the manner in which such a
person must sign
6. Discuss where (on the will) a testator must sign and explain the meaning of "the
end of the will" as used in section 2(1)(a)(i), with reference to the courts'
interpretation thereof in Kidwell v The Master (See Counter Point discussion
Jamneck et al 69)
7. Provide reasons why it is important for the valid execution of a will to distinguish
between a "mark" and an (other) "signature"
8. Appraise the requirements for a person to be a competent witness (s 1)
9. Explain:
(a) The purpose of the attestation of a will by witnesses; and
(b) The function of an attestation clause (Sterban)
10. Answer the question as to where the witnesses must sign with reference to
sections 2(1)(a)(iii) and 2(1)(a)(iv) as amended (Liebenberg v The Master)
11. Explain the legal position if all the pages of a will are not signed by the same
witnesses
12. Appraise the legal position if some pages of a will are properly executed and
others not, with reference to Kidwell v The Master and section 2(3) of the Wills
Act (can a will be “partially” valid?)

13. Indicate the circumstances under which a certificate is required in terms of
section 2(1)(a)(v) and name the people who may act as certifying officers
14. Critically evaluate the content of a section 2(1)(a)(v)-certificate and indicate, with
reference to case law (amongst others In re Jennet if the certificate must follow
the ipsissima verba of the relevant subsection and if the certifier's office must be
mentioned
15. Explain where on the will the certificate must be appended with reference to
section 2(1)(a)(v) as amended
16. Discuss when the certificate must be appended with

reference to section 2(1)(a)(v)(aa) and (bb)
31
17. Discuss the requirements which the commissioner of oaths must meet
18. Appraise the consequences if the commissioner of oaths signed the will in two
capacities, i.e. as witness and as commissioner of oaths
19. In conclusion, and after considering all the formality requirements, distinguish
between the different ways a will can thus be executed according to section
2(1)(a)
20. How should you in practice go about analysing whether a will has been properly
executed or not? (See Jamneck et al 75)
Study Unit 3.4: The court's power to declare a will valid
Source references:
Jamneck et al 78-83; Section 2(3) of the Wills Act; Ex parte Maurice 1995 2 SA 713
(C); Bekker v Naude 2003 5 SA 173 (SCA); Van Wetten v Bosch 2004 1 SA 348 (SCA);
De Reszke v Maras 2006 2 SA 277 (SCA); Van der Merwe v Master of the High Court
2010 6 SA 544 (SCA); Raubenheimer v Raubenheimer 2012 SA 290 (SCA). Also see
some interesting recently decided cases: Osman v Nana [2021] ZAGPJHC 47;
Marshall v Baker 2020 3 SA 463 (WCC); Williams v Hendricks [2021] ZAWCHC 66
Study objective:
After studying this study unit theme, you should be able to discuss and evaluate the
effect of the courts' power of condonation with reference to the abovementioned court
cases. After studying this study unit you must be able to:
1. Critically reflect on the:
• Wording of section 2(3)
• Issues pertaining to the interpretation of section 2(3)
• Required degree of compliance, if any with the relevant section
• The “document” requirement
• The “draft” requirement
• The “partially executed” requirement

• The “intention” requirement
2. Apply the mentioned principles, as interpreted by case law, to a set of facts
32
• In this regard a detailed set of narrated PowerPoint slides will be provided that is
sufficient for assessment purposes. It will also be dealt with in the tutorials
Study Unit 3.5: Formalities in amendment of a will
Source references:
Jamneck et al 76; De Waal and Schoeman-Malan 79-85; Section 1; 2(1)(b) and
2(2) of Wills Act; Smith v Parsons 2010 4 SA 378 (SCA); Taylor v Taylor 2012 3 SA
219 (ECP)
Study objectives:
After studying this study unit, you should be able to:
1. Appraise if any formality requirements must be met with regard to amendments
during the execution of a will executed on or after 1 January 1954
2. Explain the effect of the presumption created by section 2(2)
3. Appraise the formality requirements which must be met with regard to
amendments after the execution of a will executed on or after 1 January 1954
4. Evaluate the legal position if amendments are made without complying with the
formality requirements
5. Critically appraise whether the principles of section 2(1)(b) are applicable or not
with regard to the deletion of the entire will, with reference to case law and the
definition in section 1 of the Wills Act
6. Apply the principles of section 2(3) as set out above, to a set of facts (Slides)
Study Unit 3.6: Revocation and revival of wills
Source references:
Jamneck et al 89-105; De Waal and Schoeman-Malan 88 -109; Le Roux v Le Roux
1963 4 SA 273 (C); Moses v Abinader 1951 4 SA 537 (A); Webster v The Master 1996
1 34(D); Sections 2A and 2B of the Wills Act; Pienaar v The Master [2011] ZASCA
112; Uys v Uys [2008] ZANCHC 306; Sansole v Ncube [2003] JOL 10695 (25);
Wessels v Die Meester [2007] SCA 17 (slides); Law v de Kock 2017 3 SA 62 (WCC);
33
JW v Williams-Asham 2020 4 SA 567 (WCC)
Study objectives:
1. Explain what is meant by a clausula derogativa
2. Discuss the two exceptions to the general rule that a person may not forgo his
competence to revoke
3. Analyse the recognised forms of express revocation
4. Distinguish between an original will, a duplicate original and a copy of a will
5. Briefly reflect on the presumptions which come into operation upon revocation of
a will through destruction
6. Discuss the methods of tacit revocation (execution of subsequent conflicting will
and ademption) (Pienaar v The Master)
7. Appraise tacit/ implied revocation of an earlier will by a later will, in so far as they
are inconsistent with each other. (Pienaar)
8. Appraise and discuss the Court’s power to condone an(attempted) act of
revocation, although this act does not amount to express/tacit revocation as
discussed above (s 2A). (Study Webster v The Master and see the slides for an
explanation of this case!)
9. Analyse the “automatic lapsing” of a will by operation of law (s 2B)
10. Distinguish between conditional revocation and revocation based on an
assumption
11. Discuss the "doctrine of dependent relative revocation" with reference to relevant
case law (Le Roux v Le Roux)
12. Critically appraise whether a will that has been revoked, can be revived, and if it
can, how it can be done
Study Unit 3.7: Capacity to inherit
Source references:
Jamneck et al 107-124; De Waal and Schoeman-Malan 110-124; Section 2D(1) and
Section 4A of the Wills Act; Blom v Brown [2011] ZASCA 54 (31 March 2011); Ex parte
Pretorius [2017] ZAWCHC 11
34
Study objectives:
1. Appraise he legal position and principles of interpretation with regard to the
unborn child; extramarital children; adopted children; class bequests (s 2D)
2. Appraise the legal principles that apply to unworthy persons
3. Discuss a person's capacity to benefit where he hid or destroyed the testator's
will
4. Evaluate the (un)worthiness of persons participating in the execution process to
inherit (S4A; Blom; Pretorius)
Syllabus Theme 4: Freedom of testation and the content of wills
Study Unit 4.1: Freedom of testation; limitations; influence of the

Constitution / constitutional values / public policy; power of
appointment (delegation of testamentary power)
1. Freedom of testation
Source references:
Jamneck et al 125-138, and 199; De Waal and Schoeman-Malan 3-7; Sections 9, 10,
25(1) of the Constitution of the Republic of South Africa 1996; Minister of Education v
Syfrets Ltd NO 2006 4 SA 205(C); Curators, Emma Smith Educational Fund v The
University of KwaZulu-Natal 2010 6 SA 518 (SCA); In re Heydenrych Testamentary
Trust 2012 4 SA 103 (WCC); In re BOE Trust Ltd 2013 3 SA 236 (SCA); King NO v
De Jager 2021 4 SA 1 (CC); Moosa NO v Minister of Justice and Correctional Services
2018 5 SA 13 (CC); Wilkinson v Crawford NO 2021 4 SA 323 (CC)
Study objectives:
1. Explain the principle of freedom of testation
2. Describe some common law limitations on freedom of testation
3. Describe some statutory limitations on freedom of testation
35
4. Discuss the effect of the Constitution on freedom of testation with specific
reference to the following:
• Sections 9, 10 and 25 of the Constitution
• The principles of equality, freedom, human dignity and public policy
5. Provide a critical analysis of the effect of the abovementioned Constitutional
values on freedom of testation with reference to case law. Distinguish between
fair and unfair discrimination (What is your own personal view?)
6. Appraise how “Public Policy” is determined in view of Constitutional values
7. Critically reflect on discrimination in the “private domain” (What is your own

personal view?)
2. Delegation of testamentary power or power of appointment to others
Source references:
Jamneck et al 138-139; De Waal and Schoeman-Malan 47-50; Braun v Blann 1984 2
SA 950 (A)
Study objectives:
1. Indicate and explain the point of departure regarding the exercising of
testamentary power
2. Name and explain (with examples) five exceptions to the general prohibition on
the delegation of testamentary power (See slides)
3. Critically appraise the facts and judgment of Braun v Blann and Botha and
indicate the importance of the judgment with regard to the delegation of
testamentary power
4. Distinguish between the exercise and the delegation of testamentary power and
give examples of each
5. Explain the consequences of an invalid power of appointment
36
Study Unit 4.2: The content of wills
See in this regard the example of a will in Jamneck et al xxvi-xxvii
4.2.1: Absolute bequests; conditions, time clauses(dies); modus; massing

of estates
Source reference:
Jamneck et al 143-160 ; De Waal and Schoeman-Malan 128-140 ; 195-198 ; Webb v
Davis 1998 2 SA 975 (A) ; Section 37 of the Administration of Estates Act 66 of 1965;
Joubert v Ruddock 1968 1 SA 95 (EC), Rhode v Stubbs 2005 5 SA 104 (SCA)
Study objectives:
1. Apply the concepts, dies cedit and dies venit, as discussed earlier (Study unit
1.3) to a specific testamentary institution such as a suspensive condition,
resolutive condition, suspensive dies, resolutive dies, modus etc (See the slides)
2. Explain the terms "inheritance", "heir", “residue”, “pre-legacy”, “legatee” and

briefly indicate what the importance is of distinguishing between them
3. Explain what is meant by a “pure bequest”

4. Distinguish between a bequest made, conditionally or subject to a time duration
(dies), and be able to clarify the distinction with examples
5. With regard to conditional bequests and bequests subject to a time duration, be
able to distinguish between suspensive and resolutive conditions. You must be
able to distinguish between the legal consequences which occur in these two
cases
6. Explain when the conditions will be invalid because they are impossible, contra
bonos mores (against “public policy”) or vague and uncertain
7. Describe and explain the term “modus”

8. Know the general principles which apply to the modus as a legal concept
9. Distinguish the modus from and compare it with condition (Webb)
10. Appraise the nature of the various beneficiaries' rights with regard to modus, with
reference to case law (Webb)
37
11. Explain whether “novation“ of the modus is possible.
12. Explain the concept of “Massing of estates”

13. Name, understand and apply the requirements set out by section 37 of the
Administration of Estates Act with regard to statutory massing of estates
14. Provide four (4) examples of estate massing using different legal institutions
(Jamneck et al 158 and slides)
15. Describe the consequences of the massing of estates in general, with reference
to Joubert v Ruddock, including the rights of the ultimate beneficiaries to the
assets of the first-dying testator as well as to the assets of the survivor
16. Explain the legal consequences of (a) adiation and (b) repudiation by surviving
testator
17. Indicate why massing of estates is regarded as a form of election
4.2.2: Direct substitution
Source objectives:
Jamneck et al 163-164; De Waal and Schoeman-Malan 143-147; Du Plessis v Strauss
1988 2 SA 105 (A); Barnhoorn v Duvenhage 1964 2 SA 486 (A); Moosa NO and Others
v Minister of Justice and Correctional Services 2018 5 SA 14 (CC)
Study objectives:
1. Explain direct substitution
2. Explain the purpose of direct substitution
3. Explain direct substitution by operation of law (ex lege) in view of sections 2C(1)
and (2) of the Wills Act 7 of 1953 and be able to apply these principles to a set of
facts
(See in this regard Table 10.1 in Jamneck et al 166)
38
4.2.3: Fideicommissary substitution (the Fideicommissum)
Source references:
Jamneck et al 169-178; De Waal and Schoeman-Malan 147-161; Sections 6 and 7 of
the Immovable Property Act 94 of 1965; Du Plessis v Strauss 1988 2 SA 105 (A);
Barnhoorn v Duvenhage 1964 2 SA 486 (A); Raubenheimer v Raubenheimer 2012 5
SA 290 (SCA); Erasmus v Estate Late Booysen 2014 4 SA 1 (SCA); Douglasdale Dairy
(Pty) Ltd v Bragge 2018 (4) SA 425 (SCA); King v De Jager 2021 4 SA 1 (CC)
Study objectives:
1. Define fideicommissary substitution
2. Explain the purpose of fideicommissary substitution
3. Describe the requirements for a valid fideicommissum (See Raubenheimer case
with regard to the “intention” requirement and the importance of clear wording)
4. Discuss the limitations which sections 6 and 7 of Act 94 of 1965 places on the
duration of the fideicommissum as well as the acceleration of benefits in view of
Erasmus v Estate Late Booysen
5. Distinguish between an express and a tacit fideicommissum and provide an
example of each
6. Appraise the meaning and effect of a si sine liberis decesserit clause, with
reference to case law (Du Plessis v Strauss)
7. Explain the legal position (rights and duties) of the fiduciary (See Table 10.2
Jamneck et al 176)
8. Appraise the common law and statutory exceptions to the fiduciary's capacity to
alienate
9. Analyse and explain the legal position of the fideicommissary, with reference to
relevant case law (Barnhoorn v Duvenhage) (See Table 10.2 above)
10. Explain the “fideicommissum residui”
11. The influence of constitutional principles on the beneficiaries of a
fideicommissum (King v De Jager)
39
4.2.4: Usufruct
Source references:
Jamneck et al 179-181; De Waal and Schoeman-Malan 163-165
Study objectives:
1. Define a usufruct
2. Distinguish between a usufruct and a fideicommissum
3. Describe the nature and extent of the beneficiaries' (usufructuary and nude
owner) rights and be able to indicate when the respective beneficiaries' rights
vest and become enforceable
4.2.5: Testamentary trust
Source reference:
Jamneck et al 187-207; De Waal and Schoeman-Malan 166; sections 1, 6, 9, 10, 11
and 12, 19, 23 of the Trust Property Control Act 57 of 1988
Study objectives:
After studying this study unit you must be able to:
1. Define the (testamentary) trust
2. Distinguish between a trust in the wide and narrow (strict) sense of the word.
3. Distinguish between the so-called “ownership” and “bewind” trust
4. Explain the “basic trust idea” and its importance

5. Discuss the essentialia for the creation of a valid trust
6. Appraise the so-called “core elements” of the trust

7. Name a few duties of a trustee
8. Briefly reflect on the beneficiaries of a trust and their rights with regard to the
income and capital of the trust respectively
40
9. Appraise the legal position and the effect on the trust property if a trustee’s private
estate is sequestrated
4.2.6 Common law accrual
Source references:
Jamneck et al 181-185; De Waal and Schoeman-Malan 199-203; Lello v Dales 1971
2 SA 330 (SCA)
Study objectives:
1. Define accrual and provide examples thereof
2. Explain the point of departure in South African law with regard to the
determination of whether accrual should operate or not and explain which
indications (coniecturae) are used in this regard
3. Explain joinders re tantum, re et verbis and verbis tantum, provide examples of
each, and be able to distinguish them from each other with reference to the legal
consequences of each
4. Appraise the effect (legal consequences) according to our case law (Lello v
Dales) of a joinder verbis tantum
4.2.7: Collation
Source references:
Jamneck et al 217; De Waal and Schoeman-Malan 204-210; Estate Van Noorden v
Estate van Noorden 1916 AD 175; Thesnaar v Die Meester 1997 (3) SA 169 (C)
Study objectives:
1. Define collation (collatio), explain this term with the aid of an example, and
indicate its basis
2. Identify the people who are obliged to collate and the people entitled to collation
(as well as those people who are not so obliged or entitled)
41
3. Indicate which benefits are subject to/exempted from collation
4. Explain what is meant by collation of debts, and be able to distinguish this from
the collection of debts (slides)
5. Indicate the importance of the Van Noorden case for the law regarding collation,
especially the obligation of grandchildren to collate (slides)
6. Do a calculation of collation in a given factual scenario
4.2.8: Interpretation and rectification of wills
4.2.8.1: Interpretation of wills
Source references:
Jamneck et al 229 -248; De Waal and Schoeman-Malan 219- 231; Van Deventer v
Van Deventer [2006] JOL 18738 (SCA); Will v The Master 1991 1 SA 206 (C); Webb
v Davies 1998 2 SA 975 (SCA)
Study objectives:
1. Know the golden rule with regard to interpretation and the general principles
which apply with regard to the interpretation of wills
2. Distinguish between ex facie and a latent ambiguity
3. Know the sources of interpretation
4. Know when aliunde evidence may be used
4.2.8.2: Rectification of wills
Source references:
Jamneck et al 246; De Waal and Schoeman-Malan 231-235; Van Zyl v Esterhuizen
1985 4 SA 726 (C); Hotz v Goodman 1994 2 SA 186 (C); Will v The Master 1991 1 SA
206 (C); Henriques v Giles 2016 1 SA 51 (SCA)
Study objectives:
42
1. Distinguish between interpretation and rectification
2. Explain when the court will rectify
3. Know and be able to apply the facts and principles in Hotz v Goodman
4. Apply the facts and principles established in Will v The Master with regard to
interpretation and rectification
Syllabus Theme 5:
Succession by contract
Source references:
De Waal and Schoeman-Malan 211; Narshi v Ranchod NO 1984 3 SA 925 (C), Van
Aardt v Van Aardt 2007 1 SA 53 (EC)
Study objectives:
1. Understand that succession can’t, as a general rule, occur by way of a contract,
and the reasons for that
2. Identify two (2) exceptions to this general rule
3. Explain what is meant by a pactum de non succedendo and explain the validity
thereof (Narshi)
4. Explore the “vesting test” in identifying an invalid pactum successorium with

reference to case law
5. Define a donatio mortis causa
6. Identify the special features of the donatio mortis causa
7. Appraise the similarities between a donatio mortis causa and a will
43
Syllabus Theme 6:
Administration of estates
Study Unit 6.1: Introduction
Source references:
Jamneck et al 273-292; De Waal and Schoeman-Malan 237 – 249; Moseneke v The
Master 2001 2 SA 18 (CC)
Study objectives:
1. Explain the following terms:
(a) Deceased estate
(b) Executor
(c) Administration of estates
2. Provide a cursory overview of the administration process of a deceased estate
3. Provide a broad overview of the most important legislation relevant to the process
of administration of estates
Study Unit 6.2: The Master and his functions
Source references:
Jamneck et al 284-285; De Waal and Schoeman-Malan 238 -239
Study objectives:
1. Explain the jurisdiction of the Master
44
2. Explain and give examples of the following functions of the Master with regard to
the administration process: (a) Supervision
(b) Quasi-judicial function
(c) Advisory function
(d) Administrative tasks
(e) Exercising discretion
Study Unit 6.3: The executor and his appointment
Source references:
Study objectives:
1. Define and distinguish between the terms "executor testamentary" and "executor
dative"
2. Explain the distinction between the nomination and the appointment of an
executor
3. Explain the power of assumption awarded to an executor
4. Describe the procedure for the appointment of an executor testamentary
(including an assumed executor)
5. Name the circumstances under which an executor dative can be appointed
6. Describe the procedure for the appointment of an executor dative
7. Explain a so-called section 18(3) appointment
8. Name the persons disqualified from appointment and be able to give reasons for
their disqualification
9. Explain the reasons for and the way in which an agent is appointed by an
executor
10. Explain an executor's obligation to provide security and the way in which it must
be provided.
45
Study Unit 6.4: The process of administration: the executor’s
preliminary tasks
Source references:
Jamneck et al 285; De Waal and Schoeman-Malan 240
Study objectives:
1. Explain the executor's objective with regard to the first interview with relatives
2. Provide a cursory overview of the executor's tasks up until the issuing of the
letters of executorship
3. Describe the documents that must be submitted to the Master before the
nominated executor will be appointed as executor
Study Unit 6.5: Functions of the executor after receipt of the letters
of executorship
Source references:
Study objectives:
1. Provide a cursory overview of the executor's tasks after receipt of the letter of
executorship
2. Describe the various tasks
3. Describe the factors which can play a role when determining a suitable method
of liquidation
4. Explain the different methods of liquidation and indicate in which circumstances
each method should be used
5. Explain the requirements for a “section 38 -takeover”

6. Explain the purpose, nature and effect of a redistribution agreement
46
7. Discuss the requirements in Regulation 6 with regard to an application for the
extension of time for submission of the liquidation and distribution account
Study Unit 6.6: The Liquidation and Distribution Account
Source references:
Study objectives:
1. Provide a schematic representation of a completed Liquidation and Distribution
account, with reference to the 8 elements
2. Draw up (draft) a simple, but complete first and final Liquidation and Distribution
account, based on details provided
3. Explain how the Master's fees are calculated (Slides; New regulations since Jan
2018 apply)
4. Indicate how estate duty is calculated. You must also be able to compile an
Estate Duty Addendum, based on given information (slides)
July 2023
47

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Department of Private Law

Law of Succession: ERF 222

Ms Kgopotso Maunatlala (Course coordinator & Lecturer)

(b) The University of Pretoria ascribes to a flipped-learning methodology which requires

3 Responsibilities of the student

(e) Attend all tutorials

(f) Work through the tutorial exercises and participate in tutorials.

(g) Ask us when you don’t understand something.

5 Lecturers and consultation times

Lecturer (Course coordinator) Ms Kgopotso Maunatlala Mon: 10:30 – 13:30

Lecturer Ms. Elisa Rinaldi Mon: 10:00 – 13:00

6 Study material and purchases

Failure to follow the procedure above may result in unnecessary delays.

Date & Venue Weighting

• Assessment on Intestate Succession • TBA 20%

• Semester test 2 (sit-down) • October 30%

• Assessment on Administration of • TBA 20%

(b) Level and approach to test and examination questions

HEQF 40% - knowledge of a field of 60% - analysis of

(c) Arrangements regarding Sick tests and perusal will be communicated.

A semester mark of 40% is required for examination entrance.

9 How to use the study guide

a) Introduction, background, definitions

d) Freedom of Testation and the Content of Wills

f) Administration of Deceased Estates

Each Syllabus Theme or Topic is divided into Study Units.

10 Module pacer/Weekly plan

Date Topic Lecturer

31 July – 4 August 2023 • Intestate Succession Ms K Maunatlala

7 & 8 August 2023 • Intestate Succession Ms K Maunatlala

11 August 2023 • Intestate Succession Ms K Maunatlala

14 & 15 August 2023 • Law of Testate Succession Ms E Rinaldi

21 & 22 August • Formalities of the execution of wills Ms E Rinaldi

24 August 2023 Semester test 1 17:30 – 19:00

4 -13 September • Revocation Ms E Rinaldi

26 - 29 September • Content of Wills Ms K Maunatlala

2 - 6 October • Content of Wills continue Ms K Maunatlala

9 -11 October • Interpretation Online

13 October • Semester test 2 17:30 – 19:00

16 – 31 October • Administration of Deceased Estates Ms K Maunatlala

02 November • Assignment 2 – Administration of estates Online

03 – 08 November • Possible Revision Class TBA

ERF 222 addresses curriculum transformation by incorporating the University of Pretoria’s

CURRICULUM TRANSFORMATION DRIVERS ERF 222

Responsiveness to social context The nature, philosophy and principles of the

Epistemological diversity The view and experiences of different

Curriculum transformation is a constant sectors of society is theoretically

encouragement of epistemological diversity. considered by –

Diversifying epistemology means bringing

challenging the hegemony of Western ideas and

exhibits an understanding that a ‘hidden curriculum’ and freedom of testation versus

cohort. divide regarding discrimination in wills and

(a) Safety in the evening and emergencies

(b) E-learning support

(c) Other support services:

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Academic support for https://www.up.ac.za/disabilityunit

Student Provides counselling and therapeutic

Fees and http://www.up.ac.za/enquiry

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