PVL2602 LAW OF

SUCCESSION

Online lecture
We will start at 12h00.
Until then the sound is muted.
 PVL2602
Law of
Succession:
Intestate
Succession
Introduction
Chapter 2
2023 Discussion class nr 2
© A Roos
What is intestate succession?
Law of Succession: Intestate succession:

• The legal rules that

• The rules of law that determine how
determine how a succession takes place if
deceased estate must a deceased
be distributed. failed to make a will,
 Can be testate (when or
there is a will) if the will is invalid, or
 or intestate (in terms if the will cannot be
of ISA) given effect to.
  Prior to 2005 there were a dual system of
administration of intestate deceased estates in SA. One
system for black people and parallel system for whites.
Intestate estates of black persons were administered
under the supervision of a magistrate in terms of

Dual system of section 23 of the Black Administration Act 38 of 1927

and its regulations, whereas the intestate estates of

administration whites were administered under supervision of the

Master in terms of the Administration of Estates Act 66

of intestate 
of 1965.
Section 23 purported to give effect to customary rules
estates prior of succession.
The Master had jurisdiction over all testate estates,
to 2005

including those of black people (see s 23(9) of the Black
Administration Act).
Bhe v Magistrate, Khayelitsa 2005 CC
 See J&R p 30 -31 for more detail
 In the Bhe case, there were three cases before the Constitutional
Court. They were heard together since they were all concerned with
intestate succession in the context of customary law: Bhe v
Magistrate, Khayelitsha; Shibi v Sithole and The South African Human
Rights Commission v President of the Republic of South Africa.
 The Constitutional Court held that the s 23 and the rule of male
primogeniture was unconstitutional. Amounts to unfair discrimination.
 All deceased estates were to be administered under the
supervision of the Master, including intestate estates of black
deceased persons whose estates previously would have devolved in
terms of customary law.
 Administration of intestate estates

• All deceased estates to be administered under the

supervision of the Master.

The rules of customary law of succession

• Declare the rule of male primogeniture to be

unconstitutional.
Bhe case Meaning of “spouse”
consequences • In the Intestate Succession Act a “spouse” includes a
customary law wife.
• “Spouse” should also be interpreted to include more
than one spouse.

Calculation of a child’s share

• “Plus one” in the definition of child’s share is changed

to “plus the number of spouses”.
Reform of Customary Law of
Succession and Regulation of Related
Matters Act 11 of 2009 (RCLSA)

 The RCLS became law in September 2010.

 It brought the customary law of succession into
line with the decision of the Constitutional Court
in the Bhe case.
 It reaffirmed that the intestate estate of any
person who is subject to customary law must
devolve in terms of the Intestate Succession Act as
amended by the provisions of the RCLSA
 Heir

• Person who inherits the whole estate or a portion of the estate.

• Distinguish from a legatee who inherits a specific thing (ito a will
only) .

Descendant

Basic • Children, grandchildren and other offspring (downward line)

concepts Ascendants

• Parents, grandparents and other ancestors (upward line)

Collateral

• Person who is related to the deceased through the same ancestor

(eg brother or sister (siblings); uncle or aunt).
Ascendant and descendant

Ascendant

Descendan
t Descendant
Collaterals

Ascendan
t

Collateral Collateral

Descendant Descendant
*
 This Act includes the following persons as “descendants” (See
J&R 286 et seq)

1) A child accepted by the deceased during their lifetime as

their own child in accordance with customary law
(“adopted” child)
A woman other than his spouse, with whom the deceased
Descendant
2)
has entered into a union ito customary law for purpose of
providing children for the spouse’s house (substitute
ito RCLSA marriage)
3) If the deceased was a woman who during her lifetime
married another woman ito customary law for the purpose
of providing children for the deceased’s house (woman-to-
woman marriage)

Question: Is a spouse a spouse or a descendant or both?

 Stirps – stem of the family (line of
descendants with common ancestry)

Parentela – order of succession / order of

relationship

Basic Succession by representation (per stirpes)

concepts • heir inherits based on blood relationship with

predeceased heir
(continue) • descendant inherits by representing predeceased parent
• each stirpes (stem of the family) take the same share

Succession per capita

• heir inherits in own right

• each beneficiary takes the same share
Stirpes
Stem / branch of the family

 Every descendant of the deceased who

survives the deceased forms a stirps
AND
 Every predeceased descendant of the
deceased who leaves living descendants
forms a stirps.

E forms a stirps, as well as C, who is survived by F.

D does not form a stirps because he is not survived by
a descendant.
Parentela – Determines order of
succession
 Diagram

1st Parentela:
Descendants of deceased (children and
grandchildren) (Green)

2nd Parentela:
Parents of deceased and their
descendants collateral to the deceased
(grandparents and siblings) (Blue)

3rd: Parentela:
Grandparents of deceased and their
descendants collateral to the deceased
(grandparents, uncles, aunts) (Purple)
Succession by representation
(per stirpes)
and per capita

Children B, C and D – inherit per capita, (but

representation is allowed for predeceased
child.)

Grandchildren E and F: inherit per stirpes

(represent D)

G, H, I J: per stirpes (represent F)

• In SA intestate succession law inheritance
by representation is allowed in first and
second parentela (ISA s 1(4)(a)) but not in
third and further parentela.
• In 3rd and further parentela inheritance is
per capita.
 Deceased estate

• assets and liabilities of a deceased person at the time

of their death

Residue of the estate

Basic • Part of the estate that remains after payment of:

• funeral expenses,
concepts • debts,
• taxes,
(continue) • administrative fees,
• administration cost,
• maintenance claims and
• all legacies in a will have been paid out.
• Includes failed or lapsed bequests.
 Vesting means that the person inheriting a benefit becomes the
holder of a right to the benefit.

Vesting of Vesting is usually at death of deceased but can be postponed in

a will by the testator (by using a suspensive condition).

Intestate
Vesting in intestate succession
Estate
• Vesting takes place at the death of the deceased, BUT
• What if there is a will that fails at later date?
• Harris v Assumed Administrator, Estate MacGregor: vesting
on date when it becomes certain that the will has failed
• Implications: heir who died after the deceased but before
vesting takes place, will not inherit
 The testator created a trust in respect of the whole of his estate and
stipulated that the trust income was to be paid to his wife during her
lifetime. After her death, the trust capital was to devolve upon their
children. Should they not have any children, it was to go to his brother,
or to his brother's children if his brother predeceased the testator's

Example: wife. The testator died in 1943. No children were born of the marriage
of the testator and his wife, and his brother predeceased the testator's
wife leaving no issue surviving him. Every contingency for which the
Harris v testator had provided therefore failed, and consequently the capital
of the estate had to devolve ab intestato (in terms of intestate
Assumed succession rules).

Administrator, When the testator died in 1943, he was survived by his wife, his mother
(who died subsequently in 1960) and his brother (who died in 1979).

Estate The testator's widow applied for an order to the effect that the
intestate heirs were to be identified on the date of the death of the
MacGregor brother as being the date which gave rise to intestacy (1979).
Her co-administrator of the trust, however, contended that the date for
1987 AD determining the intestate heirs was the date of the testator's death
(1943).
(facts) The Appellate Division held that the intestate heirs had to be
determined on the death of the testator's brother.
The wife was therefore the sole heir.
 “The position according to our common law regarding the
vesting of an intestate estate and the determination of the
intestate heirs may therefore be summarised as follows:

Harris v 1. Where a deceased dies without having made a valid will

at all, or without leaving a valid will, his intestate estate
Assumed Adm, vests on the date of his death when his intestate heirs have
to be determined.
Est MacGregor 2. Where a testator died leaving a valid will which took
effect on his death but which subsequently became
inoperative, either in toto [completely] or pro parte
[partially], intestacy then occurs and his intestate estate
vests on the date when it first became certain that his
will had become inoperative. His intestate heirs have to
be determined, not at his death, but when intestacy
occurred.”
 Meaning: the ability to inherit from
deceased

Capacity to
inherit Only natural persons - based on blood-
relationship
intestate

Except: Spouse and adopted child can

also inherit (not related by blood)
Specific groups of children
Unborn Children born Children born Children born
outside after artificial from surrogate Adopted child
child marriage insemination mother

• Nasciturus • S 1(2) of ISA • May inherit • Valid • S 1(4)(e) of

fiction – illegitimacy from both agreement: ISA; child of
applies to does not parents, Treated the adoptive
same as
unborn affect unless biological
parents
children that capacity to considered children – can • Treated as
has been inherit from extra-marital inherit from blood
conceived at blood ito both relation
the time of relations Children’s commissioning
the Act parents
testator’s • Extra marital • Invalid
death. child inherit agreement:
child is child of
• They inherit only from surrogate
if they are mother mother,
born alive. inherit from
her and her
relations
 No one should derive a benefit from an unlawful act or
wrongdoing.

Who is If it would offend against public policy to allow someone to

inherit, then it should not be allowed.

disqualified by Examples:
law to inherit
• Bloedige hand (bloody hand) (person who murdered the
intestate from deceased or a spouse, child or parent of the deceased
(coniunctissimi) may not inherit from the deceased
deceased? • Indignus (unworthy person)
• Eg if potential heir forged a will for testator
• Taylor v Pimm case (see later)
Coniunctissimi

Parent

Deceased Spouse

Child
Constitutional challenges:

Meaning of “spouse” in Intestate Succession Act (ISA) and Maintenance of

Surviving Spouses Act (MSSA) was extended by case law for:

Permanent
Religious life
marriages partnership
s
 Daniels v Campbell 2004 (CC) –
extend meaning to include spouse in
monogamous Muslim marriage (MSSA)

Hassam v Jacobs 2009 (CC) - extend

(a) Religious meaning to include spouse in
marriages polygynous Muslim marriage (ISA)

Govender v Ragavayah 2009 (D) –

extend meaning to include spouse in
monogamous Hindu marriage (ISA)
 Volks v Robinson 2005 (CC) – excluded partner
in permanent heterosexual life partnership
where partners have undertaken to support
each other (MSSA)

(b) Permanent Gory v Kolver 2007 (CC) – include partner in

permanent same sex life partnership where
life partnerships partners have undertaken to support each
other (ISA)

Civil Union Act 17 of 2006 in force – allow

same sex couples to marry – does that change
position since there is no more discrimination
against same sex couples?
 Laubscher NO v Duplan 2017 (2) SA 264 (CC)
Permanent life Confirm: Spouse includes partner in permanent same sex life partnership
where partners have undertaken duty to support each other (ISA)

partnerships
(continue)
Bwanya v The Master 2022 (3) SA 250 (CC)
NB new cases not Confirm: Heterosexual partners are included in the word spouse (ISA and
MSA)

in textbook (see
tut letter)
End result: life partners (who have undertaken
a duty to support each other) = spouse
Next lecture
Intestate Succession rules – rest of
chapter 2