Law of Succession:

ERF 222
Ms. Kgopotso Maunatlala

Lecture 2: Chapter 1 Part 1

July 2023
1. SYLLABUS THEME 1: INTRODUCTION, BACKGROUND &
DEFINITIONS

Law of Succession: Administration of deceased estates:

• Comprises legal rules that regulate and control
• Process in terms of which liabilities are paid and
the transfer of assets of a deceased that are
the assets (or remainder thereof) transferred to
eligible for distribution to beneficiaries, or beneficiaries
• those assets of another person over which the • Done by appointed “executor” under supervision
deceased has the power of disposal of the Master of the High Court ito Administration
•Rules that determine “how” qualified (competent) of Estates Act 66 of 1965 (Syllabus theme 6 later)
beneficiaries are identified, the “scope”/ extent of • Deals with the “how” question
their benefit [legacies and inheritance] and their
rights and duties with regards to such benefits
• Deals with the “Who receives what” question(s)
-identifies persons entitled to succeed the deceases
2. DISCIPLINES OF THE LAW OF SUCCESSION
TESTATE SUCCESSION
• Person dies leaving behind a valid “will or Pactum Successorium, e.g.
testamentary stipulations in an Antenuptial contract (dealt with in chapter 14)
• Wishes of the testator
• Regulated by: Wills Act 7 of 1953 as amended
• Who may make (execute) a will; formality requirements for a will to be
valid; amendment of wills and more specifically what constitutes an
amendment ; Court’s power to condone a lack of formalities; capacity of
certain beneficiaries who were in a certain capacity involved in the
execution process to benefit from such will, etc.
INTESTATE SUCCESSION
• Person dies without a will; OR
• Will only disposes of certain but not all assets (partially testate)
• Will is defective
• Regulated by: Intestate Succession Act 81 of 1987 (ISA) as amended, and also
in 2010 modified by the Reform of Customary Law of Succession and
Regulation of Related Matters Act 11 of 2009 (RCLSA)
• Legal rules that determine who a deceased person’s beneficiaries are (in as
much as the person did not do so himself in a will) and how much the
beneficiary is entitled to inherit.

NB!!
The Wills Act is NOT a complete codification of the law of testate succession. Common Law (unwritten law) as developed through case law deals with other important
aspects such as:
• The revival of a revoked will
• Common law accrual
• The determination of the nature of a beneficiary’s rights wrt his/her benefits
 Succession can take place in 3 ways:

• Law of Testate Succession (Will or ANC);

• Intestate succession, and lastly

• Common Law as developed through case law

3. DUAL CHARACTER OF THE LAW OF SUCCESSION

Social function: associated particularly with maintaining and protecting the family as a social unit. [customary Law rule]

Economic function: regulates the transfer of wealth upon a person’s death [Common Law rule]

SA Law of Succession consists of 2 main branches:

1. The common law of Succession that comprises testamentary and intestate succession rules, and [caters for both testate and intestate]

2. Customary law of succession that comprises only intestate rules. Previously by the rule of male primogeniture.
• Bhe v Magistrate Khayelitsha 2005 (CC) the court held that the Intestate Succession Act 81/87 must apply to all estates (‘temporary’ extension of application)
• This resulted in the Reform of Customary Law of Succession Act 11 of 2009(RCLSA) modifying the Customary law of Succession: The RCLSA modifies certain
concepts such as the meaning of “spouse” and “descendant”

• Therefore when it comes to Choice of Law rules: The Intestate Succession Act read with the RCLSA applies to the estates of persons who live under a system of
customary law

Question: Can a testator still apply male primogeniture in his will due to freedom of testation? Will it not be against public policy
based on the Bhe case? Can the testator not circumvent a possible attack (based on the unconstitutionality of the male primogeniture principle) by
leaving everything to the oldest son? (Chapter 15 later)
4. TERMINOLOGY
Deceased-someone who is dead and Left their estate behind

4.1 Testator: Deceased leaving behind a valid will

4.2 Freedom of testation: Freedom to dispose of your assets within your discretion [as you wish]

o But not absolute or unlimited: certain Common Law and Statutory limitations, including limitations by Constitution and values enshrined (later).

o Enshrined in sections 10 and 25 of the Constitution

o Provisional reading: Minister of Education v Syfrets Trust 2006 4 SA 205 (C) (Will be dealt with in Study Unit 4.6) see p127-­128 textbook

4.3 Estate: Assets and liabilities. The deceased leaves behind an estate but only assets devolve [transferred]
4.4 Will: Common law definition and elaborated upon in s 1 Wills Act 7/1953: Common law (unwritten): Unilateral, voluntary expression of the wishes of a person
(testator) in a legally prescribed way (see formalities later), that determines what must happen to his/her property after his/her death

S1 Wills Act 7 of 1953: Will includes a “codicil” and “any other testamentary writing”
o Codicil:
Common law def: Any addendum to an existing will dealing with an amendment, addition to a will etc. (must also comply with formality requirements since it
constitutes a “will”)

o Any other testamentary writing: (Later)

4. TERMINOLOGY
4.5 Beneficiary: The person(s) to whom assets of the deceased are transferred ito testate or intestate succession.

Legatee Heir

o Person who receives a specific asset ito testator’s will o Person(s) whose benefit or portion must be
i.e., R5 000, car, ring, furniture shared … determined. Thus, not clear from a simple reading of
o Benefit known as a “legacy” the will
o Benefit known as an “inheritance”
4. TERMINOLOGY: EXAMPLES
Testator (T) stipulates in his will:

“I bequeath my car to my son X. The residue (whatever assets remain), I leave to Z.”
•X = legatee

•Z = heir (It is not a first glance clear what constitutes the “residue”. The executor must determine what else T possessed

Therefore, take note:

•Where beneficiary receives a proportional part of T’s estate: “ I leave my assets to my grandchildren in 5 equal portions” (not clear what a fifth is)

•Where beneficiary receives a part: “ I leave half of my estate to X” (not clear what half is)
•Intestate beneficiaries are “heirs” since we have to determine the scope of their benefit

NB!! What is the importance of such a distinction between legatees and heirs?
• Legatee has a stronger position than heir when the executor has to sell assets to pay liabilities
• So-called ‘Collation’ of benefits only apply to certain heirs ( to be dealt with later)
4. TERMINOLOGY

4.6 Executor:

• The person charged with the Administration of the deceased estate after the death of a deceased (whether intestate or
testate)

• Normally nominated by the testator in his will

• If not, the Master appoints someone

• Executor winds up the estate: Pays liabilities, transfer those assets that remain to designated beneficiaries
• Acts under the supervision of the Masters of High Court.

• Entitled to 3,5% of the gross value of the estate as fee

5. REQUIREMENTS FOR SUCCESSION
5.1 Person must have DIED

Exceptions:

a) Presumption of death and an order for the division of the estate.

Therefore, although the person might still be alive, (not dead)
Division of estate subject to provision of security that estate can be returned if he reappears

b) When estates are massed the estates of various testators (usually 2;; usually spouses; persons living together) are
consolidated into a single
economic unit for the purpose of testamentary disposal.
• The effect of Massing of Estates is that the surviving testator’s estate devolves according to the joint will upon the death
of the first-­dying party, while the survivor is obviously still alive. The survivor loses ownership in his/her estate but
receives benefits from the massed estate in return (to be discussed later)
5. REQUIREMENTS FOR SUCCESSION

5.2 Beneficiaries must be alive or conceived upon delatio/devolution/falling open of estate

Exception: The Nasciturus’s interests are kept in abeyance

Example:
- T stipulates: “I bequeath my estate to my children/grandchildren”
- Assume that upon his death he has 2 children and his wife is expecting a third child
- The nasciturus fiction is codified: S 2D(1)(c) Wills Act (kept in abeyance)
5. REQUIREMENTS FOR SUCCESSION: Commorientes

What is the legal position in the event of so-­called “Commorientes”?

Definition: Parties (Testator and beneficiary) dying
simultaneously in the same calamity
5. REQUIREMENTS FOR SUCCESSION: Commorientes
•Current legal position:

o R-­D law principles no longer apply

o Sequence of death is a factual question that must be resolved by means of medical or other evidence.
o No evidence = court will accept that the deceased persons died simultaneously.

•NB!! Ex Parte Graham 1963 4 SA 145 (D) – (Facts p21 Jamneck) Judgement:
a)Beneficiary can inherit from the deceased only if he survives the deceased
b)If a person dies before another, or SIMULTANEOUSLY – cannot inherit from him if the sequence cannot be proved on a balance of
probabilities
NO PRESUMPTION to survival; or simultaneous death
• Time of death = question of fact established without presumptions
• The absence of evidence to the contrary, the court will find that COMMORIENTES died simultaneously (like in this case) – therefore,
the son could not inherit from his mother
• Nowadays it is a common occurrence that spouses provide in their wills in which they appoint each other as heirs, for the division of their
estates “should they die simultaneously” or in the same disaster
5. REQUIREMENTS FOR SUCCESSION: Commorientes

• Nowadays it is a common occurrence that spouses provide in their wills in which they appoint each other as heirs, for the
division of their estates “should they die simultaneously” or in the same disaster
• The question is whether such a clause takes effect where both spouses die in the disaster, but one survives the other by a
few minutes, hours or days or where it is impossible to establish who died first.
• Greyling v Greyling 1978 2 SA 114 (T) p 21 Jamneckinutes

Solution? Simultaneous death clause coupled with a time frame “should we die simultaneously or within 3 months…
then our estates must pass to X”

• In this way, the problem in Greyling is evaded

5. REQUIREMENTS FOR SUCCESSION
5.3 The beneficiary must be qualified or competent (and thus not disqualified)

 If the beneficiary for example wrongfully and intentionally or even negligently cause the death of the deceased the
beneficiary can’t inherit from such deceased (The bloody hand principle)

 S4A Wills Act: Any person who attests and signs a will as a witness, or who signs the will in the presence and by the
direction of T or who writes out any part of the will in his own handwriting and such person’s spouse at the time of execution
shall be disqualified from receiving any benefit from that will…...

 This aspect of competent beneficiaries will be discussed fully later:

6. SOME INTERESTING QUESTIONS TO BE ANSWERED THROUGHOUT THE
SEMESTER

• What physical form must the will take? Must it be written, typed, or printed?

• Is video or audio wills allowed? E-­mail? WhatsApp?

• When is a will valid or invalid?

• If a will is invalid, is there anything that can be done about the situation? Does it mean T now dies intestate?

• Can T amend or revoke his will? If yes, how?

• Can a witness to a will inherit from that will?

• What happens if a beneficiary either predeceases T(died before T), decides he does not want the benefit(repudiates), or if he is perhaps alive
but according to the law “disqualified” to inherit?
• What can a T “write”/include in his will? What type of testamentary “institutions” are there? E.g. a usufruct to someone over a property? Can
he impose conditions?

• Can T and another person AGREE in a contract between them that T will leave his assets to the other contracting party or even to some
other 3rd party? Is such an agreement valid?

• Can T discriminate in his will against a beneficiary based on one of the grounds in s9(4) read with s 9(3) of the Constitution?

• What is the position if the wording of a will is vague or ambiguous?

• What is the position if T or someone who drafted a will for him made an error? Can it be rectified?
 CHAPTER 1 CONTINUES…

•When does the estate fall open?

•Vesting and enforceability of rights
•Determining whether vesting of rights takes place
automatically or whether a beneficiary has to
adiate/accept the benefit first (slides)