Introduction

Thursday, 30 May 2024 08:19

1.1 General background to the law of succession

When someone dies he leaves behind an estate ( deceased estate ) that must be devolved among his heirs. Succession
may take place in three ways

• In accordance with a valid will

• Through the operation of the law of intestate succession in the absence of a will
• In terms of a contract or agreement

1.2 Law of Succession in the legal system

The law of succession is the totality of the legal rules that control the transfer of those assets of the deceased that are
subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of
disposal, the master of the High Court is involved in the process

1.3 Dual character of the law of succession

These enjoy equal status and are subject to the Constitution of South Africa and other legislation. The common law of
succession is divided into the testate law of succession and the intestate law of succession, whereas the customary
law of succession only operates intestate

Four issues must be considered when looking at the two branches of succession law

• customary law is subject to two provisions, namely it must be compatible with the Constitution and it may be
amended by means of legislation

• The decision as to which law is applicable to a particular deceased estate is made by applying choice of law rules
that can be derived from statute or judicial precedent

• because customary law is not a single, unified system of law, but comprises the different customary laws of the
various traditional communities in SA

• The difference between the common and customary succession laws are primarily based on societal and
economic considerations

1.4 Choice of law rules

1.4.1 The problem of conflicting rights and obligations

1.4.2 Testate law of succession

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1.4.2 Testate law of succession

These are derived from common law and the Wills Act, 1953. Testate succession is governed by the general premise
that the assets of the deceased are distributed in accordance with the provisions of the will

1.4.3 Intestate law of succession

if you die without leaving a valid will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81
of 1987). This means that your estate will be divided amongst your surviving spouse, children, parents or siblings

• Section 23 of the black administration act prohibited black persons from making wills regarding certain property
• Section 1(4)(b) of the intestate succession act confirmed that estates falling under section 23 fell outside the
scope of the intestate succession act.

1.4.4 Administration of Estates

Prior to December 2000 a separate system existed for administering estates depending on a person's race

• The magistrate administered black persons intestate estate

• The Master of the high court administered the estates of all other race groups, as well as the testate estates of
black persons

Since 2004, a unitary system of administration of estates exist for all SA and the choice of law only apply to the
question of whether a deceased estate must be administered by the master or a designated magistrates office
depending on the value of the estate

1.5 Private international law of succession

In SA there is no unified code dealing with private international law of succession, therefore it is impossible to deal
with all the relevant rules in the confines of a book

• Intestate succession : Intestate succession to movables is governed by the law of the country where the deceased
was domiciled

• Testate succession : The formal validity of wills is governed by section 3bis of the wills act, it applies only to a
testator who died after 3 December 1970

1.6 Succession terminology

See pages 10 - 19 of the handbook

1.7 Ground Rules for succession

1.7.1 Person must have died

Although the requirement for succession is death it is not always as simple as that, when a person dies there is almost
always a body that confirms that the testator has died however when a person goes missing the court can pronounce,
presumption of death and make a order for the division of the estate. If the testator returns, his estate will be given
back to him. The exception to the rule that the person must be dead can be found under Estate Massing

Factors that plays a role in presumption of death order

• Length of time the person has been missing

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 • Length of time the person has been missing
• Age
• Health and position in society of the missing person
• Circumstances of the disappearance

1.7.2 Transfer of rights and duties with regard to assets and/or the status of the deceased

The fact that there has to be a transfer of rights with regard to the bequest or status of the deceased can be regarded
as the second ground rule for law of succession

At the time of death, the estate of the deceased needs to be reported to the Master of the High Court. The Master of
the High Court will appoint an Executor to administer the estate. The duties of the Executor include collecting assets,
paying liabilities and distributing the residue to the heirs

Customary - it follows the rule of male primogeniture, which means that a family head is succeeded by the first born
son, this was however declared unconstitutions

1.7.3 Beneficiary should at the time of dies cedit be alive or have been conceived

At the time of dies cedit, the beneficiary has to be alive or have been conceived. The beneficiary must be competent
to inherit. (According to the Dutch rule die bloedige hand neem geen erf a person convicted of either the murder or
culpable homicide of the testator is not eligible to inherit.)

Since an unborn child can't inherit, the vesting of the bequest is held over until the child is born alive, this is known as
the nasciturus fiction

• nasciturus fiction has been codified section 2D(1)(c of the wills act

1.7.4 Beneficiary must be competent to inherit

die bloedige hand neem geen erf

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