LAW OF SUCCESSION

ADVOCATE CLAUDIO VOLPATO

THE LAW OF SUCCESSION IN SOUTH AFRICA . 3RD EDITION JAMNECK, J., PALEKER, M.
2017

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INTRODUCTION TO THE LAW OF SUCCESSION

The South African law of succession is a multifaceted law area deeply rooted in the country's diverse
legal traditions, including Roman-Dutch common law and customary law. This complexity reflects
South Africa's unique socio-legal history and commitment to embracing this diversity in its legal
system.

COMMON LAW: TESTATE AND INTESTATE SUCCESSION

The common law of succession primarily governs testate and intestate succession.

TESTATE SUCCESSION

Testate succession occurs when a person dies, leaving a valid will. The will, a crucial document in
this process, outlines how the deceased's assets should be distributed and may appoint an executor to
administer the estate. The validity of a will is subject to several statutory requirements under the Wills
Act 7 of 1953. These requirements include the age of majority for the testator, the presence of
witnesses during the signing of the will, and the testator's mental capacity at the time of the will's
creation.

INTESTATE SUCCESSION

Intestate succession occurs when a person dies without a valid will. The Intestate Succession Act 81
of 1987 governs this process, ensuring that the deceased's estate is distributed to their closest relatives,
reflecting societal norms of familial support and inheritance. This act specifies a clear hierarchy of
beneficiaries, starting with the spouse and children and then extending to other family members if no
direct descendants exist.

CUSTOMARY SUCCESSION LAW

Customary succession law, recognized under the Recognition of Customary Marriages Act 120 of
1998, differs significantly from common law.

Customary succession is traditionally patrilineal and often does not recognize spouses and children
born out of wedlock as automatic heirs.
However, in recent years, South African courts have made significant strides towards harmonizing
customary law with constitutional principles, notably equality and non-discrimination. This has led to
a more inclusive approach to customary succession, aligning it more closely with the values enshrined
in the Constitution of the Republic of South Africa, 1996.

THE ADMINISTRATION OF ESTATES ACT

The Administration of Estates Act 66 of 1965 plays a vital role in managing and finalizing deceased
estates. This act outlines the procedures for reporting an estate to the Master of the High Court and the
subsequent administration process, including the appointment of an executor, the collection and
protection of the estate's assets, the payment of debts, and the distribution of the remaining assets to
the rightful heirs or beneficiaries.

THE CHOICE: COMMON AND CUSTOMARY LAW

In the conflict between common and customary law, South African courts apply the choice of law
rules.

These rules consider various factors, including the nature of the assets, the deceased's domicile, and
the deceased's expressed or implied intentions.

The choice of law in succession matters has evolved to be more inclusive and reflective of the living
realities of South Africans, who may live and operate under a mix of common and customary legal
principles.

Overall, the South African law of succession is a dynamic field that continuously evolves to meet
South African society's changing needs and values. Its complexity necessitates a thorough
understanding of the various statutes, legal precedents, and cultural norms influencing how succession
is managed and resolved in the country. As you delve deeper into this module, you will gain a more
nuanced understanding of how these elements interact to provide a comprehensive framework for
managing deceased estates in South Africa.

SUCCESSION TERMINOLOGY

Absolute bequest:

A bequest that does not contain any conditions. It is the simplest way of making a bequest and the
effect of such a bequest is that vesting of rights normally takes place on the testator's death.

Accrual or the right of accrual (ius accrescendi):

The right which co-heirs or co-legatees have of inheriting the share that their co-heir or colegatee
cannot or does not wish to receive.

Ademption:

A form of tacit revocation of a legacy when a testator voluntarily alienates the object of the legacy
during his or her lifetime causing the legacy to fail.

Adiation:

The acceptance of a benefit from the estate of a testator.

Administration of estates:
The process, including all administrative actions to initiate and complete the process, by which a
deceased estate is liquidated by an executor under the supervision of the Master of the High Court and
is divided among the beneficiaries.

Amanuensis:

Someone who signs the will on behalf of the testator.

Amendment:

Deletion, addition, alteration or interlineation by the testator. An amendment is distinguished from

rectification, which takes place when a court adds, deletes or corrects something in a will because the
testator made a mistake. See also rectification.

Animus testandi:

The intention of the testator to make a will.

Ascendants:

Ancestors of the deceased; anybody in the ascending (upwards) line of relationship.

Attestation clause:

A clause that appears at the end of the will in which it is declared that all the parties were present and
signed in one another's presence. It may also record the place and date of signature.

Beneficiary or beneficiaries:

The person or persons to whom a testator's estate is transferred. Beneficiaries are called heirs when
they receive an inheritance and legatees when they receive a legacy. See also heir and legatee.

Bequeath:

To dispose of assets by means of a will.

Bequest:

The bequeathable assets left by a deceased. It is called an inheritance when bequeathed to an heir and
a legacy when bequeathed to a legatee.

Capacity to act:

A person's capacity to enter into legal acts. The required age is 18. This capacity must be
distinguished from testamentary capacity. See also testamentary capacity.

Child's portion:

Calculated by dividing the deceased's estate by the number of children who have either survived him
or her, or who have predeceased him or her but have left descendants of their own, plus the number of
surviving spouses.

Collateral:

Refers to a person who is related to the deceased because he or she has the same ancestor as the
deceased, for example a full brother, a half-brother, full sister, half-sister, niece, nephew, cousin,
uncle or aunt. A full brother or sister of the deceased is a brother or sister descended from both
parents of the deceased. A half-brother or half-sister is a brother or sister descended from one parent
of the deceased.

Collation or collation bonorum:

Under certain circumstances, a descendant who received certain benefits (either property or money)
from a testator during the testator's lifetime has to collate (bring in) such benefit (or its value) before
he or she may inherit from the estate of the testator to ensure a fair distribution of the deceased estate
among all the descendants.

Commorientes:

People who die simultaneously in a disaster.

Competent witness:

With regard to a will, any person over the age of 14 years who is competent to give evidence in a
court of law.

Compos mentis:

Of sound mind.

Conditional bequest:

A bequest that depends on a future event which is uncertain in the sense that it may or may not occur.

Coniunctissimae personae or coniunctissimi:

The persons closest to the deceased, namely the surviving spouse, parents and children.

Contractual succession or pactum successorium:

A contract in which the parties attempt to regulate the devolution of the entire estate or part of the
estate of one or both parties.

Curator:

A person who has been legally appointed to take care of the interests of someone who is unable to
manage his or her affairs, for example someone who is a minor or mentally ill. A curator ad litem is a
person appointed to assist someone to litigate in court, while a curator bonis is a person appointed to
administer property or an estate.

Deceased estate:

Consists of the assets and liabilities of a deceased person at the time of his or her death. The estate
therefore consists not only of property, but also of any debts that the deceased incurred before his or
her death. The residue of the estate refers to that part of the deceased's estate which remains after
funeral expenses, all debts, taxes, administrative fees and other administration costs, maintenance
claims and all legacies have been paid out. The residue is what is left in the estate after everything has
been paid out or transferred and it includes all bequests that have failed or lapsed.

Descendants:

Common law descendants include the lineal descendants (persons in the downwards line) of the
deceased. The customary law concept of descendants generally includes a wider circle of descendants.
According to section 1 of the RCLSA, the following categories of persons qualify as descendants:
 1. A person who is a descendant in terms of the Intestate Succession Act (thus common law
descendants).

2. A person who, during the lifetime of the deceased person, was accepted by the deceased
person in accordance with customary law as his or her own child.

3. A woman who was involved in a substitute marriage or a woman-to-woman marriage.

Dies cedit:

The day will come. The time when a beneficiary obtains a vested right to claim delivery of
bequeathed property unconditionally (whether or not the exercise of this right is delayed until some
future date which is certain to arrive).

Dies venit:

The day has come. The time at which a beneficiary's right to claim delivery of bequeathed property
becomes enforceable or the day when delivery of the property has to take place.

Direct substitution:

Occurs where a testator names a substitute or a series of substitutes who are to inherit if the heir or
legatee named to benefit in a will does not inherit. Direct substitution is substitution in the alternative.

Donatio mortis causa:

A donation aimed at the death of the donor that must comply with the formalities laid down for a will.

Execution of a will:

The process whereby the testator and other parties comply with all the formalities required to bring a
valid will into existence.

Executor:

The person who is charged with the administration of a deceased estate; the person who winds up the
estate. An executor in a deceased estate is distinguished from a curator of an insolvent estate and from
a trustee or administrator of a trust.

Freedom of testation:

The freedom of a person to dispose of his or her estate as he or she pleases.

Heir:

A beneficiary who inherits a testator's entire estate, a portion thereof or the residue thereof. The
bequest is known as an inheritance. See also legatee.

Joint will:

Where two or more testators set out their respective wills in the same document. Such a will differs
from a mutual will in that the parties do not necessarily appoint each other as beneficiaries. See also
mutual will.

Legatee:
A person who inherits a specific asset or a specific amount of money from a testator. The bequest is
known as a legacy. See also heir.

Mortis causa:

In contemplation of death.

Mutual will:

Where two or more testators draw up a joint will and confer benefits on each other in the same will.

Pactum successorium:

A contract in which the parties attempt to regulate the devolution of the entire or part of the assets of
one or both parties.

Posthumous:

Something that occurs or continues after someone's death. For example, a posthumous child means a
child born after the death of the father of the child.

Si sine liberis decesserit clause:

A clause that stipulates that if a beneficiary dies without children after the testator, the benefit must
pass to a third party.

Substitution ex lege:

Takes place where an heir inherits in the place of an heir who is either disqualified from inheriting or
repudiates.

Stirps or stirpes:

A line of descendants of common ancestry. A stirps (plural: number of stirps or stirpes) includes
every descendant of the deceased who survives the deceased, or a predeceased descendant of the
deceased who leaves living descendants. In other words, a stirps is a surviving child of the deceased
and the descendants of a predeceased child.

Testamentary capacity:

Capacity to make a will. Every person aged 16 years or more may make a will unless at the time of
making the will, he or she is mentally incapable of appreciating the nature and effect of the act. This
capacity must be distinguished from capacity to act.

Will or testament:

A unilateral, voluntary juristic act contained in a document which complies with formalities required
by law, and in which the testator gives instructions pertaining to what must happen to his or her estate
after his or her death. A will can be drafted by anyone above the age of 16 and with the right mental
competency.

2. GROUND RULES OF SUCCESSION

There are a few requirements (basic ground rules) that must be fulfilled before the rules of succession
can come into operation

PERSON MUST HAVE DIED

In both the common and customary law of succession (in the case of property), a prerequisite for
succession is at the owner of the estate must have died. This ground rule is important in succession
and this was stated in the Estate Orpen v Estate Atkinson case where the testatrix, Mrs Atkinson, had
sought to grant her husband a power of appointment with regards to trust capital relating to her
father’s estate. The legal conundrum came because she made this clause in her will whilst her father
was still alive. The court correctly held that she could not exercise power of appointment before her
father died. Although the requirement of death is quite clear, there are situations where the application
of this rule has been deviated from by the courts. The first one is in the case of a presumption of
death, here there can be cases where someone disappears for years, and it can be assumed they are
dead in some cases, even though there is no body to confirm. The Re Beaglehole case bears reference
here. Secondly, in estate massing, the law of succession allows testators to mass parts or their whole
estates into a consolidated economic unit for testamentary disposal, however at the death of first
testator, the surviving testator’s estate devolves according to will of first dying.

COMMORIENTES:
In a case where a number of people are killed in the same disaster (they are known as Commorientes),
it is sometimes difficult to determine who died first, but it may be important to investigate who died
first in order to choose the beneficiaries, especially where the deceased are members of the same
family. In the Ex Parte Graham case, a testatrix and her adopted son, together with the rest of the
passengers and crew were killed in a plane crash. The testatrix had a will in which she left everything
to her son. The Deeds Office refused to transfer property, subject to a court order declaring that the
adopted son had died simultaneously with the testator or before her. In the Greyling v Greyling case
there was even clear confusion on declaring who died first between a husband and wife who had an
accident. Regarding the confusion with commorientes, when two people who intend to benefit each
other in the same will die in the same disaster and it is not possible to establish who died first, the
court will find that they died simultaneously. This is presumed from the concept of vesting in
succession, which occurs at death as it is important to establish the order in which people die in order
to establish who is to benefit in terms of a will or as is in this case, intestate succession. According to
the Ex Parte Graham case we can no longer apply common law presumptions to determine who died
first but rather the court will look at whether evidence can be led to ascertain who died first. If there is
no evidence, the court will deem that the parties died simultaneously (Jamneck et al, 2017).

TRANSFER OF RIGHTS AND/OR DUTIES WITH REGARD TO ASSETS AND/OR THE

STATUS OF THE DECEASED

This is the second ground rule of succession and there must be a transfer of rights and duties when
someone dies to their beneficiaries. This ground rule is linked to the issue of dies cedit and dies
venit which distinguish the moment when a beneficiary is informed of a benefit accrued to them and
the moment they get to enjoy the benefit. So dies cedit is the time when a beneficiary obtains a vested
right to claim delivery and dies venit refers to the time which the beneficiary’s right to claim delivery
becomes enforceable.

BENEFICIARY SHOULD AT THE TIME OF DIES CEDIT BE ALIVE OR HAVE BEEN

CONCEIVED:
This is the third ground rule of succession which means when the benefit accrues, the beneficiary
should be alive to inherit or conceived. Where a beneficiary has already died (is predeceased) when
the bequeathed benefit vests, there can be no succession. The exception is where a beneficiary has
been conceived but not yet born when the bequeathed benefit vests (Jamneck et al, 2017).

BENEFICIARY MUST BE COMPETENT TO INHERIT: THIS IS THE LAST GROUND

RULE OF SUCCESSION

Not all people can inherit despite being named as an heir/legatee in a will or in terms of intestate
succession. Intestate succession applies if a deceased dies: without leaving a will at all; having
executed a valid will which has subsequently become wholly or partly inoperative for some or other
reason; with a valid will that fails to dispose of all the deceased's assets and leaving a document
purporting to be a will, but which does not comply with the formalities for wills and is not condoned
in terms of section 2(3) of the Wills Act. Sometimes a person is disqualified from inheriting because
they killed the testator and also maybe they participated in will fraud. In customary law the rule of
male primogeniture was declared unconstitutional in the Bhe v Magistrate Khayelitsha case.