PVL2602 LAW OF

SUCCESSION

DISCUSSION CLASS
We will start at 12h00.
Until then the sound is muted.
 PVL2602
Law of
Succession
2023 Discussion class nr 1
Orientation
and Introduction
© A Roos
Part 1: Orientation

 Discussion classes – take note

 The discussion classes / online lectures cannot cover
everything.
 The fact that a section is not covered, does not mean
it is not important.
 We aim to give you an overview of a topic.
 You must study the details on your own in the
prescribed textbook
 NB: Refer to study guide which indicates which
paragraphs you must study.

 Recordings of the classes will be posted on the module

site.
Module page for PVL2602 on myUnisa

Please check the module page

on myUnisa regularly – this is
our medium for
communicating important
information to you.

We can communicate with you by

Sending a
Answering course
Posting your message
Posting announce
information questions to your
ments on
on the on the email
the
Welcome module discussion address (in
Page site forum urgent
situations)
Lecturers
 Prof J Jamneck
 Prof A Roos
 Mr PO Matsemela
 Ms B Maboki

 Contact details
 on module site
 and in Tut letter 101 (which is available on the module
site under Official Resources)
Contact details
Assessments: Assignments and
Examination
2 Formative assessments (Assignments)

• Assessment 01: Written assignment:

• COMPULSORY FOR EXAMINATION ADMISSION
• Submit pdf document on module site
• Available from 13 March 2023
• Assessment 02: MCQ assignment
• Answer online on module site
• Available from 13 March 2023
 Closing dates (under Assessment plan on module site):

Assessment 01: 5 April 2023 at 6 pm

Assessment 02: 5 May 2023 at 6 pm

 Summative Assessment (Examination)

 MCQ exam written online (closed book)
Assessment plan

Your final mark for this Semester mark (out of

module will comprise: 20) + examination mark
(out of 80) = Final mark
Semester mark …
• 2 Assignments count 50% each
of the semester mark
• Semester mark count 20% of
final mark
• A bad semester mark will
bring your final mark down –
therefore do ass 02 as well!

…Combined with an
examination mark.
• The examination mark count
80% of final mark
Assessment plan (continue)
 Example:
• Assume that you receive 60% and 80% for the assignments and 50% for
the examination.
• Your semester mark will be
• 60 + 80 = 140 which is divided by 2 = 70%.
• This mark must be converted to a mark out of 20.
70/100 = 14/20.
• Your examination mark must be converted to a mark out of 80
• 50/100 = 40/80.
 The converted marks will then be added up to determine final
mark.
 Semester mark (14/20) + Exam mark (40/80) = 54/100 = 54%.
Assessment plan (continue)
 Subminimum for the examination is 40%
 Note that your final mark should be 50% to pass the module.
 There is, however, a required subminimum for the examination itself,
namely 40%.
 If you achieve less than 40% for the examination, you fail the
examination, and your semester mark does NOT count.
 In other words, you fail the module.

 Your semester mark also does not count if you are repeating the module (a
supplementary exam student)
 Supplementary exam students do not do the new semester’s assignments and therefore
does not acquire a semester mark. The old semester mark is not taken into account,
 Study material
Content
of the Found in
• the prescribed textbook
Law of and
Successio • the study guide.
n module
• Jamneck, Rautenbach,
Prescribe Paleker, Van der Linde, and
d Wood-Bodley The Law of
textbook Succession in South
Africa  Third Edition (2017)
(J&R) Oxford University Press

Found on
Study • module site under Official
guide material Listed as GD
001(Both) for PVL2602
 How to study this
module
Read It explains Basic
introductory
Skills and problem-
section in
J&R (p solving techniques
xxiii-xxv) required in module

Do not
Know your compartmentalize
work Study module as a
whole

Definitions, • Knowledge of
definitions, definitions is vital
definitions • J&R p10-18
 PVL2602
Law of
Succession
2023 Discussion class nr 1
Part 2 Introduction
Chapter 1
© A Roos
What is Law of Succession?

Legal rules and

procedures to transfer
property from one In other words, it’s the
person (B) to another legal rules that
person (C) on the death determine what should
of the first person (B). be done with the
property of a person
who has died.
Types of succession

1. Testate:
Testator draws up a
will and provides in
the will how the 2. Intestate:
deceased estate
must devolve. When the testator
does not have a valid
will, or if the will fails,
then the Intestate 3. Contract
Succession Act
determines who will Between the deceased
inherit and another person
Called a pactum
successorium
To be valid it must be
contained in an a.n.c.
Ground rules for succession

1. Owner of the 2.Beneficiary 3.Beneficiary

deceased estate must be alive or must be
must have died conceived when competent to
the benefit vests inherit

Take note of
2 Exceptions commoriente
(a) Presumption s – order of
of death death
important
(b) Massing
Owner of the deceased estate must have died
(example)

 Estate Orpen v Estate Atkinson 1966 4 SA 589 (A)

 Father gave daughter a power of appointment over 20% of his estate
 Daughter exercise that power in her will in favour of her husband
 Daughter died before her father
 Court held she cannot exercise her power of appointment (executor cannot exercise it
on her behalf)
Beyers JA: ... Mrs Orpen was appointed a usufructuary under her father’s will. In terms of the
above-mentioned decision, it was therefore competent for the testator to bequeath to her the
power of appointment appearing in clause 14(4) of his will.
It is, however, a power which attaches to the bequest, and the person to whom the power is
given must, it seems to me, succeed to the property, or the limited interest in the property, to
which it attaches, before the power can be exercised by him or her in respect of that property.
Mrs Orpen never succeeded to the status of usufructuary and was, in my opinion, never seized
of the power of appointment which she purported to exercise in favour of her husband
Commorientes:
People who are killed in the same incident

 RULE: For C to inherit from B, C must survive B.

 If it cannot be determined who died first in an accident:
 No presumption in SA law about order of death (there used to be rules in common
law); court will find that they died simultaneously.
 They cannot inherit from each other if they did not survive each other.

 Ep Graham 1963 (4) SA 145 (D)

 WARNER J: … It seems to me that the approach adopted in Nepgen v van Dyk is the proper one. There the Court
examined the facts to see if there was any evidence to support a conclusion that the deaths were not simultaneous.
In the present case, we are concerned with the crash of an aircraft and the evidence is that the aircraft crashed in a
swamp and was extensively damaged with debris being strewn around over a large area. All the passengers and
crew were killed and, in many instances, the identification of the bodies was impossible. It seems to me that in
such circumstances the probabilities are overwhelming that the passengers did, in fact, die simultaneously
and consequently any presumptions that there may be are excluded. In any event, there is no ground for
believing that death would have overtaken them in the usual course of mortality. I consequently make an order that
the testatrix and her son are presumed to have died simultaneously…
Commorientes example

• Millionaire Peter left his entire estate to his 18-year-old son, Bongani,
in his will. He did not leave anything to his two daughters, Marina and
Milana.
• Bongani left his small estate to his girlfriend, Sanna, in his will.
• Under normal circumstances: If Peter dies, his estate goes to Bongani.
If Bongani then dies later (eg 3 years later), his estate (now including
Peter’s large estate), goes to Sanna.

 What happens if Peter and Bongani are involved in an accident,

and both die at the scene?
Commorientes example (continue)
 Basic rule: Bongani must survive Peter to inherit from Peter.
 If it cannot be established that Bongani survived Peter, Bongani cannot
inherit from Peter.
 Under common law there were certain legal presumptions as to who died
first, such as that the child was presumed to have died first if the
deceased persons were a parent and child.
 These presumptions no longer apply.
 In Ex parte Graham the court held that there is NO LEGAL PRESUMPTION
as to who died first BUT if it cannot be determined who died first, the
court will have NO CHOICE but to find that they died at the same time /
simultaneously.
 This means that Bongani does not inherit from Peter and as a result,
Sanna does not inherit a large estate because she inherits Bongani’s
estate only.
Commorientes example (continue)
 What happens to Peter’s estate if Bongani does not inherit it?

• Since the will cannot be given effect to (because Bongani was the only
heir),
the estate will devolve in terms of intestate succession rules.
 If there is no wife, the 2 daughters will inherit Peter’s estate.
(We are assuming that there is no wife since she is not mentioned in the facts.)

 Intestate succession rules will be discussed in a subsequent lecture.

 Intestate succession
Rule that • Nasciturus fiction - the conceived child
“beneficiary will inherit after being born alive
must be alive or
conceived when Testate Succession
the benefit • Section 2D of Wills Act 7 of 1953 apply
vests” – when benefits are left to “the
children” of the deceased, it will
include a child already conceived =
same rule as nasciturus fiction
Exceptions to rule that “owner of
estate must be dead”

Presumption of
death (deceased may Massing
still be alive) Surviving testator’s property
devolves according to the
first dying testator’s (the
deceased’s) will while the
surviving testator is still alive
(massing is discussed in ch 9)
Presumption of death

 Re Beaglehole 1908 TS 49
 Person was gone for 15 years.
 Court refused to give a presumption of death order
 Facts to consider before giving such an order:
 Innes CJ: “… the judge should take into consideration the age of the absent
person at the date of disappearance, his position in life, his occupation,
whether he was exposed to any special risk or danger and so on; and taking
all these circumstances into consideration he should deal with each case upon
its merits. In any event the practice was, in cases where an order of division
was granted, to direct the heirs to give security, because they were
considered as being in the position of fiduciaries. That was the rule of the
Roman-Dutch law, and I think it was a sound, common-sense one.”
 Intestate Succession

• Who can inherit

• How is the estate divided (rules)

Testate Succession (Will)

Overview of • Capacity to make a will (who can make a will)

• Capacity to inherit under a will (who may inherit under
a will)
rest of • Formalities for making, amending, revoking and
reviving a will

module • Freedom of testation – influence of the Constitution

and other legislation
• Content of wills: conditions, modus, massing,
substitution, fideicommissum, usufruct, accrual, trusts
• Interpretation of wills
• Administration of wills and collation

Succession by contract: pactum

successorium
Next week

 Intestate Succession
 Study chapter 2