Tutorial 3: How to approach a question regarding Intestate

Succession

In your Study Guide on page 9 your lecturers made no secret about the fact that
you will definitely get a question on Intestate Succession in the exam. This
question usually accounts for at least 10 marks out of a 100, which means 10% of
your mark for the exam! It also represents half of the marks for your first
assignment.

IMPORTANT:

Please make sure you follow the same order of explanation (method) as set out in your
Study Guide on pages 10-11.

You will notice that they have 4 steps and I have 6, but the method is exactly the
same:
My steps 2-4 = their step 2 (calculate a child’s portion) – I have just broken it up into the
3 things you need to say.

PLUS I have included step 6, because you always have to explain why the other people
mentioned in the facts are not inheriting anything. What I am trying to say is that if you
follow the 6-step plan you will never forget anything.

These are the steps you need to follow:

1) DETERMINE THE VALUE OF THE DECEASED’S ESTATE:

The first thing you need to establish is whether the deceased was married and whether
the surviving spouse – or perhaps the deceased’s estate - is entitled to receive money
in terms of matrimonial property law.

A couple married in terms of SA law, namely a marriage concluded under the Marriage
Act, the Recognition of Customary Marriages Act or the Civil Union Act, have to choose
between the following matrimonial property regimes:

1) Married in community of property – surviving spouse is entitled to half of the

estate – this amount must be deducted before you start dividing the intestate
estate of the deceased.
 2) Married out of community of property with the inclusion of the accrual system: in
this instance either the deceased’s estate or the surviving spouse will be entitled
to an amount accrual.

We will never expect you to calculate the accrual – instead we will always give
you the amount of accrual that the surviving spouse OR the estate of the
deceased is entitled to. You will learn how to calculate accrual in Family Law.

Just be careful and make sure you read the question a couple of times: in the
past we have stated that the deceased estate is entitled to the accrual and then
many students just assumed the accrual must go to the surviving spouse (where
she was a WOMAN) and deducted the accrual instead of adding it!!

Please note: the spouses are entitled to receive the money in terms of Matrimonial
Property Law – they do not inherit the money, they only inherit a child’s share or
R250000, whichever is more.

3) Married out of community of property without the inclusion of the accrual system:
spouses have separate estates and surviving spouse has no entitlement to any
money from the deceased estate in terms of matrimonial property law.

Surviving spouse is entitled to inherit in terms of the rules of intestate

succession – like all other spouses. See discussion below.

2) NOW STATE THE RULE THAT APPLIES TO THE SPOUSE(S):

“All surviving spouses are entitled to a child’s share OR the minimum statutory
amount of R250 000, whichever is more.”

From the definition it is clear that ex-spouses (where the parties divorced) and pre-
deceased spouses are not entitled to inherit.

Please do not make the mistake of referring to the amount of R250 000 as a child’s
share!! The child’s share is the amount you have to calculate and the spouse then either
gets a child’s share OR the statutory amount of R250 000, depending on which amount
is more.
IMPORTANT:

You should ONLY be using the 3rd edition of your textbook (The Law of
Succession).

If you are using an old textbook you will be using the wrong statutory amount (R125
000) and you will not receive any marks for Question 1 of the assignment – apart from
the 3 marks given for a correct definition of “chid’s share”!!

The statutory amount of R125 000 was increased in November 2014 to R250 000.

Who will qualify as a spouse?

There are 4 categories of persons who qualify as a “surviving spouse”:

1. A spouse in a marriage in terms of SA law, namely a marriage concluded under the

Marriage Act, the Recognition of Customary Marriages Act or the Civil Union Act.

2. A spouse in a customary marriage that does not fall within the ambit of the Recognition
of Customary Marriages Act. Bhe v Magistrate, Khayelitsa.

3. A spouse in a marriage concluded in accordance with a system of Muslim or Hindu law.

Case law: Daniels v Campbell(monogamous Muslim marriage); Hassam v
Jacobs (polygynous Muslim marriage); Govender v Ragvayah (monogamous Hindu
marriage).

4. All life partners in a relationship intended to be permanent – this includes same sex
partners, as well as heterosexual partners: see Bwanya v Master of the High Court,
cape Town & Others [2021] (CC).

[The Constitutional Court confirmed the ruling of the Western Cape High Court that
section 1 of the ISA (Intestate Succession Act), is unconstitutional in so far as it
excludes life partners in a relationship intended to be permanent from the definition of
“spouse”.]

3) GIVE THE DEFINITION OF A CHILD’S SHARE:

The definition of a child's share is worth another guaranteed 3 marks and should
always be included – even if you have no idea who should inherit and who should be
excluded!

A child's share is equal to the value of the estate divided by the number of children who
have either survived the deceased (1)
or who have predeceased him but are survived by descendants (1),
plus the number of spouses who have survived such deceased (1).

However, it is important to learn the definition verbatim, because if it is incomplete or

just slightly incorrect you receive 0/3. For example:

NB: Note that it is NOT just “the number of children plus the number of spouses”!
If you say that the child’s portion is calculated by adding the number of children plus the
number of spouses, you will receive 0/3!

Remember also to add a very important part: “Child’s portion is calculated by dividing
the value of the estate with the number of …”

“Children” – NOT “descendants”:

In previous assignments a couple of students said “number of descendants who have

either survived the deceased or who have predeceased him, but are survived by
descendants…”
instead of “number of children who have either survived the deceased or who have
predeceased him but are survived by descendants…”
These students also received 0/3, because descendants would include children, as well
as grandchildren and that is incorrect – it is ONLY the children that are counted.

4) CALCULATE THE CHILD’S SHARE and determine spouse’s inheritance:

You have to show your calculations of the child’s share. Then you need to either
conclude that the spouse(s) each receive the statutory minimum of R250 000, OR a
child’s share – if it is more than R250 000.

Example 1:
Say for instance in a particular set of facts the value of the Intestate estate was R1 600
000 and the deceased were survived by 3 children and 1 spouse:
A child’s share = R1 600 000 divided by 4 (3 children + 1 spouse) = R 400 000. Thus a
child’s share is more than R250 000; therefore the spouse inherits a child’s share of
R400 000 (1).

OR:

Example 2:
Let’s say the deceased were survived by 5 children and 3 spouses:
A child’s share = R1 600 000 divided by 8 (5 children + 3 spouses) = R 200 000. Thus a
child’s share is less than the statutory minimum of R250 000; therefore each spouse
inherits R250 000 (1).

Important:
Where the assets in the estate are not sufficient to provide each spouse with the
amount fixed by the Minister, the estate shall be equally divided amongst the surviving
spouses. This off course means that the children inherit nothing.
5) THE CHILDREN’S INHERITANCE:

Very important: ONLY a spouse is entitled to a child’s share OR the statutory amount of
R250 000, whichever is more. Never make the mistake of calculating the child’s share
and then conclude that the spouse and each of the children receive this amount.
Only the spouse is entitled to a child's portion or R250 000. Never use this term in
relation to the children.

The children share equally in the remainder of the estate after the inheritance of the
spouse (child's share or R250 000) has been deducted.

When we apply this rule to the examples above it will mean:

Example 1:
The spouse inherits R400 000: R1 600 000 – R400 000 = R1 200 000. Each of the
children receives: R1 200 000/3 = R400 000.

Example 2:
The 3 spouses each inherits R250 000. R250 000 x 3 = R750 000.
Children share equally in the remainder: R1 600 000 – R750 000 = R850 000.
R850 000/5 = R170 000 for each child.

Remember it is the children of the deceased who are entitled to share in the remainder
of the estate, NOT the grandchildren:

We count all the living children, as well as children who predeceased the deceased,
but left behind children of their own.
 6) IDENTIFY THE PEOPLE WHO DO NOT INHERIT AND SAY WHY:

The last step is to identify the people who will not inherit and explain why you have
excluded them.

In a scenario where the deceased is survived by a spouse and or children, parents

inherit nothing, because they are ascendants and brothers/sisters do not inherit as they
are relatives in the collateral line; there are closer relatives who exclude them.

REPUDIATION BY A CHILD:

John passed away without a will and left behind his father Bill, his wife Margaret, and
two children, Paul and Anne. He was predeceased by his third child, Susan, however,
she was survived by her two children, Ben and Suzie. The value of his estate is R1 200
000. The parties were married out of community of property without the inclusion of the
accrual system. Paul says that he does not want to inherit anything.

Let’s apply steps 1-6 above:

1) The value of John’s estate is R1 200 000, since he was married out of
community of property and with exclusion of the accrual system.

Please note:
• If the parties were married out of community of property, but with the inclusion
of the accrual system, the Q would have either stated that the estate of John
is entitled to an amount accrual (then you add it to John’s estate of R1 200
000) OR that Margaret is entitled to an amount accrual, in which event you
deduct it from the amount of R1 200 00.
• If the parties were married in community of property you would have to divide
the amount of R1 200 000 in half to get the value of John’s estate.

2) All surviving spouses (in this case Margaret) will be entitled to inherit a child’s
share or the statutory minimum amount of R250 000, whichever is more.

3) A child's share is equal to the value of the estate divided by the number of
children who have either survived the deceased (1)
or who have predeceased him but are survived by descendants (1),
plus the number of spouses who have survived such deceased (1).
 4) Calculation of Child’s share: R1 200 000/4 [Paul, Anne, Susan (although
predeceased she left behind living descendants) plus 1 spouse] = R300 000.

The child’s share is more than the statutory amount and therefore Margaret
inherits R300 000.

5) The children share equally in the remainder of the estate: R1 200 000 – R300
000 = R900 000.
The remainder of R900 000 is divided between Paul, Anne and Susan:
R900 000/3 = R300 000.

PLEASE NOTE: When calculating a child’s share in no. 4) above we include the
predeceased child (Susan) for purposes of calculating the child’s share, and not the
children of the predeceased child (Ben and Suzie). Otherwise your calculations would
have been wrong as you would have divided the estate of R1 200 000 by 5 instead of 4.
Also, the remainder of the estate (R900 000) is divided by 3 and not 4. Be careful!

Since Susan predeceased her father, John, she will be represented by her
children, Ben and Suzie who each inherits R150 000.
Paul and Anne each get R300 000.
Paul refuses to inherit (repudiates). His share of R300 000 must go to Margaret in
terms of section 1(6) of the Intestate Succession Act, which provides that if a
descendant refuses to inherit, his/her share goes to the surviving spouse.

6) John’s father Bill does not inherit, because there are closer relatives: John’s
spouse and children.

It is important to note that when an intestate heir of the deceased repudiates his/her
share, you have to apply section 1(6) of the Intestate Succession Act first and only if
the deceased is not survived by a spouse you apply section 1(7).

Section 1(6) of the Intestate Succession Act states as follows:

• If an intestate heir of the deceased repudiates an inheritance,

• and the deceased is survived by a surviving spouse,
• the surviving spouse will inherit the repudiating heir’s share.

If there is no surviving spouse the descendants of the repudiating heir will inherit

his/her share by representation in terms of section 1(7):

In terms of section 1(7) of the Intestate Succession Act:

• If a person is disqualified from being an intestate heir of the deceased or

repudiates an inheritance,
• the benefit which that heir would have received,
• devolves as if the heir had died immediately before the deceased died and had
not been disqualified from inheriting or had not repudiated the inheritance.

In our scenario Paul had no children, which means that if there was no spouse his share
would have fallen back into the residue and be shared amongst the other children of the
deceased.

DISQUALIFICATION OF A CHILD:

What would have happened if Susan did not predecease her father (John), but
caused her father’s death!?

Section 1(7) of the Intestate Succession Act states:

• If a person is disqualified from being an intestate heir of the deceased or

repudiates an inheritance,
• the benefit which that heir would have received,
• devolves as if the heir had died immediately before the deceased died and had
not been disqualified from inheriting or had not repudiated the inheritance.

THIS MEANS – WHERE THE DISQUALIFIED PERSON HAD DESCENDANTS: THE

HEIR’S DESCENDANTS WILL INHERIT HIS/HER SHARE BY REPRESENTATION.

Susan will be disqualified from inheriting, since she murdered her father, John. She is
regarded to have predeceased her father and her share will go to her 2 children in terms
of section 1(7) of the Intestate Succession Act. In other words they will represent her and
each one will receive R150 000.

HOWEVER, WHERE THE DISQUALIFIED HEIR HAD NO DESCENDANTS: THEN THE

SHARE WHICH HE/SHE WOULD HAVE RECEIVED WILL GO TO THE OTHER HEIRS
OF THE DECEASED ACCORDING TO NORMAL PRINCIPLES OF INTESTATE
SUCCESSION.

In our example it means that if Susan did not have children her share would fall back
into the residue of the estate and be shared between the other 2 children, Paul and
Anne, who would then have received R450 000 each.

Since Paul repudiated, his share still goes to the wife, Margaret.

Rule to apply:
Whether the child of the deceased is disqualified from inheriting, or whether the child of
the deceased repudiates the inheritance, you include the child for the purpose of
calculating the child’s share and it is only when you have to divide the remainder of the
estate that you apply section 1(6) and/or section1(7) of the Act.

Please also refer to clause 7.4 of Chapter 7 in your textbook, pages 113-
124, to see who else is disqualified from inheriting.

According to your Study Guide you do not need to study par,7.4.1.1 on

page 114-7.4.1.3 on page 119.

SUMMARY:

STEP 1:

Determine the value of the estate: The first thing you need to establish is whether the
deceased was married and whether the surviving spouse – or perhaps the deceased’s
estate - is entitled to receive money in terms of matrimonial property law. You need to
do this in order to determine the amount that is available in the deceased estate for
distribution in terms of the rules of Intestate Succession.

In the event that the spouses were married in community of property you have to first
deduct 50% of the estate value and give it to the surviving spouse, BEFORE you can
start to divide the deceased’s estate in terms of the Intestate Succession Act.

Likewise, if they were married out of community of property with the inclusion of the
accrual system, you have to first deal with the accrual. You will either:

1) deduct the amount of accrual from the value of the deceased estate: if the
surviving spouse is entitled to the accrual BEFORE you can divide the deceased
estate between his/her intestate heirs, OR
2) add the amount of accrual to the value of the deceased estate: if the deceased
estate is entitled to the accrual AND THEN divide the value of the deceased
estate between his intestate heir in accordance with the principles of intestate
succession law.

Remember: the surviving spouse does not inherit this amount, but are entitled to it in
terms of Matrimonial Property Law.

If the spouses were married out of community of property without the accrual system
the total of the deceased’s estate belongs to him/her and forms his/her intestate estate
available for distribution between spouse(s) and/or children.
STEP 2:

First state the rule: All surviving spouses are entitled to a child’s share OR the
minimum statutory amount of R250 000, whichever is more.

From the definition it is clear that ex-spouses (where the parties divorced) and pre-
deceased spouses are not entitled to inherit. You have to determine who qualifies as
spouses and are entitled to inherit.

STEP 3:

DEFINE A CHILD’S SHARE:

A child's share is equal to the value of the estate divided by the number of children who
have either survived the deceased (1)
or who have predeceased him but are survived by descendants (1),
plus the number of spouses who have survived such deceased (1).

STEP 4:

Calculate the child’s share (show your calculations!) and reach one of two
conclusions:

1) the child’s share is more than R250 000 and the spouse(s) therefore
inherits a child’s share, OR
2) the child’s share is less than R250 000 and each spouse receives R250 000.

STEP 5:

The next step is to deduct the amount received by the spouse(s) from the total value of
the Intestate Estate and share the remainder equally among the children.

You have to look out for all the different scenarios as explained above, for example
when a child repudiates his/her share.

STEP 6:
Explain why the persons that did not receive any money did not inherit, for example:

In a scenario where the deceased is survived by a spouse and or children, parents

inherit nothing, because they are ascendants and brothers/sisters do not inherit as they
are relatives in the collateral line; there are closer relatives who exclude them.

VERY IMPORTANT:

I have only dealt with different scenarios where a deceased was survived by his
wife and children. You need to also study the other scenarios as set out in your
prescribed textbook, for instance where a deceased did not have a spouse or
children, but was survived by his parents and brother/sisters, etc.