PVL2602

Law of
Succession:
Intestate
Succession
Introduction
Chapter 2
2024 Discussion class nr 2:
Part 1
© 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.
 Held that all intestate estates,
including the estates of people who
live according to customary law
(and died after 1994) will be
divided in terms of the Intestate
Bhe v Succession Act 81 of 1987 (ISA).

Magistrate,
Bhe made adjustments to the ISA
Khayelitsa to provide for multiple wives

2005 CC
RCLSA later amended the ISA to reflect
the new rules introduced by the Bhe
decision.
 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)

Descendants – children, grandchildren and other

offspring (downward line)
Basic
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

Descendant Descendant
Collaterals

Ascendant

Collateral Collateral

Descendant* Descendant
 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

(continue) predeceased heir

• 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

a)Every descendant of the deceased who
survives the deceased forms a stirps
b)Everypredeceased 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 – 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
(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,

(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

Basic
concepts Residue of the estate – that part of the estate
that remains after payment of funeral expenses,
debts, taxes, 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 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:
1. Where a deceased dies without having made a valid Harris v
will at all, or without leaving a valid will, his intestate estate
vests on the date of his death when his intestate heirs have to be Assumed Adm,
determined.
2. Where a testator died leaving a valid will which took Est MacGregor
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

Intestate succession is based mainly on blood

relationship), but
Capacity to * a spouse and
* an adopted child can also inherit.
inherit Position of specific groups:
* children born outside marriage;
intestate * adopted children;
* children born form valid surrogacy agreement
= Treated the same as biological children – can inherit

Nasciturus fiction applies to unborn children that has

been conceived at the time of the testator’s death
 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
partnerships
 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). Overturned in Bwanya v Master
of the High Court 2021 (CC).

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

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

Civil Union Act 17 of 2006 in force – allow same sex couples

to marry.
 Laubscher NO v Duplan 2017 (2) SA 264 (CC)
confirm: spouse includes partner in permanent same sex life partnership
where partners have undertaken duty to support each other (ISA)

Permanent life
partnerships
(continue) Bwanya v The Master 2022 (3) SA 250 (CC)
Confirm: Heterosexual partners are included in the word spouse (ISA and
MSA)

End result: life partners (who have undertaken

a duty to support each other) = spouse
Next week:

 Prepare Intestate Succession

rules – rest of chapter 2