Law of Succession

Chapter 1: Introduction

Systematics
-

Law of succession
Law = Objective law
Objective law =
Statutory provisions (Legislation)
Common law
Customs
Court decisions
Public policy
Bones Mores (Good Morels)

Definitions
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Law of Succession: Totality of legal rules which control the transfer of

assets which are subject to distribution of a deceased among beneficiaries
Deceased: Person who has died or there is a presumption of death
Testator: Person who has died and left a valid will
Deceased Estate: All assets and liabilities of the deceased, but only the
assets will be distributed after liabilities are settled
Will: Unilateral voluntary expression of the wishes of the testator in legally
prescribed ways that determines what must happen to his property after his
death (The Will includes a codicil and any other testamentary writing)
Codicil: Addition or addendum, further details, amendments or changes
Beneficiary: Person entitled to receive a benefit from the deceased estate or
person upon whom the testators inheritance dissolves and who has the
capacity to inherit (2 types of beneficiaries, namely an heir and legatee)
Heir: Entitled to inherit entire estate or the residue or a proportional part or a
particular part
Example: I bequeath my entire estate to my son Ben; I bequeath 50%
of the residue of my estate to my son Ben
Legatee: Person entitled to inherit a specific or determinable benefit
Example: I bequeath R100 to my son Ben; I bequeath my BMW to my
son Ben
Executor: Any person who is authorized to act under letters of executorship
granted or signed and sealed by a Master
Testate Succession: Valid Will
Intestate Succession: No Will; invalid Will; valid Will but not all assets dealt
with

Definitions Summary

1. Who Identity of persons (beneficiaries) qualified to succeed (inherit)

2. What Scope of benefits (inheritance)
3. How Pay debts and transfer assets

Law of Succession

Chapter 1: Introduction
Law Of Succession
Economic Function
Social Function
Regulates transfer of wealth
Encourages to provide for
Freedom of testation
dependents
Continuation
of economic life in
Protection of family as social unit
Testate
Succession
spite of death
Incentive to stimulate creativity,
hard work, initiative, productivity
which may benefit others
Testate and Intestate Succession
Testate Succession
Intestate Succession
Valid will
No Will OR invalid Will OR not all
Deceased = testator
assets dealt with in valid Will
Wills Act 7 of 1953
Intestate Succession Act 81 of
Freedom of testation
1987

Freedom of testation
1. Testator has discretion to determine the contents of his Will
2. Testators wishes will be carried out

Limitation of Freedom of testation

-

There are usually limitations on freedom of testation if the Will is unlawful,

contra bones mores, impractical, vague or impossible to execute
Example: I bequeath my estate to the stars in the sky
Example: I bequeath my estate to my daughter if she divorces her
husband
Legislation can limit freedom of testation
Pension Funds Act: It is prohibited to bequeath your pension benefit to
the estate as Section 37 of the Act excludes pension benefits to form
part of a deceased estate
Removal of Restrictions Act: Court may on application remove
restrictive conditions attached to immovable property through Section
6 of the Act
Subdivision of Agricultural Lands Act: It is prohibited to bequeath as
example your farm to your daughter, your son and your wife
Trust Property Control Act: Courts may on application vary the
provisions of a trust or terminate the trust (Trust created to benefit
students at TUKS)
Maintenance of Surviving Spouse Act: Surviving spouse shall have a
claim against the estate in so far as she/he is not able to provide from
own earnings
Constitution: Section 9/10/25/36

Constitution
BOE Trust Ltd

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Chapter 1: Introduction

Issues:
Section 25(1): The fundamental right to property includes a persons
right to dispose of his property during his lifetime and at his death
Section 10: The fundamental right to dignity includes freedom of
testation

Freedom of testation v Disinheritance

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Complete disinheritance (out-and-out) disinheritance

I bequeath my entire estate to my son Ben and I expressly disinherit
my daughter because she is a Catholic
1. The opposite will reduce freedom of testation to fiction
2. No one has a right to inherit
3. Creates practical problems (remedies/quantification/intestate)
Conditional disinheritance
I bequeath my entire estate to my son Ben provided that he marries an
Indian Lady
1. Chapter 7
2. Case law
3. probably invalid if condition is linked to discrimination

Minister of Education v Syfrets

-

bequest in trust to benefit students of European descent at UCT, but NOT

Jewish and NOT female
Issues:
Common law contra bones mores
Constitution Section 25(1) Right to property
Constitution Section 10 Right to dignity
Constitution Section 9 Discrimination
Constitution Section 36 Limitation
Court:
Freedom of testation not absolute
Public Policy of today
Indirect and direct discrimination
Trust be amended to delete discriminatory provisions
Effect:
Does not mean freedom of testation is negated
Freedom of testation will still prevail if provision was made for
substitution (BOE Case)

Vesting of the rights of beneficiaries with regard to assets of the

estate
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During the lifetime of the deceased the beneficiary merely has a hope to
inherit

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Chapter 1: Introduction

The hope is called spes

The hope is not a vested right and therefore not enforceable during the
lifetime of the deceased
When does the beneficiarys claim against the executor arise?
The moment the estate falls open which is called Delatio and is in
most instances at death
When does the beneficiarys claim against the executor vest?
Dies Cedit which is in most instances just after Delatio
But a vested right does not mean that the right is enforceable
When does the beneficiarys claim against executor become enforceable?
Dies Venit
Can Delatio, dies cedit and dies venit coincide?
Always at the time of death, except:
Valid Will which becomes inoperative (Botha v Botha)
Practical effect of administration process

Harris v Estate Macgregor

-

I bequeath my estate in trust, income = Harris during her lifetime

When Harris dies, capital must devolve:
To children born of Leslie and Harris
If no children then to Alex
Leslie =
If Alex predeceased Harris then to Alexs children
Testator
1943 Leslie dies
Harris =
Income = Harris
Spouse
No children
Alex =
1960 Mary dies
1979 Alex dies with no children
Alex predeceased Harris with no children
Harris and Cotrustee (Capital = intestate)
But there is a dispute = date for determining intestate heirs
Cotrustee states it is at date of Leslies death
Harris states it is at date of Alexs death
Court:
Valid Will which became inoperative
Intestate heirs not determined on testators death but when the Will
became inoperative
Thus on Alexs death
Harris entitled to capital
Can Delatio, dies cedit and dies venit coincide?
Yes but subject to:
Intention of testator
Administration process

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Chapter 1: Introduction

Testator can postpone dies cedit or dies venit

-

Dies Cedit postponed:

I bequeath my farm to my son Ben provided that he obtains his LLB degree
Delatio: Death
Dies Cedit: date of fulfilment of LLB requirements
Dies Venit: Date of fulfilment of LLB requirements (subject to
administration)
If Ben dies before he obtains his LLB degree then the farm will not be an
asset in his estate because the right has not yet been vested
Dies Venit postponed:
I bequeath my farm to my son Ben provided that he will receive it on his 25 th
birthday
Delatio: Death
Dies Cedit: Death/Delatio
Dies Venit: 25th birthday
If Ben dies before his 25th birthday then the farm will be an asset in his estate
because the right is vested

Botha v Botha
Herma
n en
Dina

1st
respondent
and HJ
Great
A

Chil
d
Great
B
HJ

Applica
nt

Clause 5:
Remainder of estate to children of son
If son has no children, proceed to:
Church in Standerton
Trust for study bursary for boys and girls
In 1975 HJ, A and B died
1st Respondent is his only heir
1976 Son died
Applicant is his only heir
Question:
Is the 1st respondent (as HJs heir), entitled to share in proceeds of
remainder of estate of testators?

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Chapter 1: Introduction

Court:
Clause 5 is direct bequest to descendants of son i.e. if there are no
lawful descendants, proceeds must go to church and trust
Question:
Did HJ and Applicant have vested rights (dies cedit) when son died?
Court:
If no conditions, the Applicant and HJs rights would have vested at
death of testator
Upon HJs death, those rights would have transferred to the 1 st
respondent
Question:
What effect does the condition in clause 5 have on the vesting of their
rights?
Court:
Condition results in postponement of dies cedit
If uncertain event upon happening of uncertain event
Court decided that only applicant entitled to benefits

Who is the owner of estate assets from date of death until the
assets are transferred to heirs?
-

Beneficiary?
No because universal succession is applicable and liabilities must be
settled first
Deceased estate?
No
CIR V Emary
Executor?
Yes
In his official capacity as executor, not in the shoes of the deceased

Do rights vest automatically?

-

Uncertainty
Greenberg v Greenberg
Wessels v de Jager
Rights:

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Chapter 1: Introduction

Personal rights (against executor) dies cedit/dies venit

Real rights (ownership) delivery

Greenberg v Greenberg
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Nature of beneficiarys right

Legatee does not acquire ownership (real right) upon Delatio
Delivery/registration is required
Only AFTER liabilities settled

Requirements for succession

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Testator must have died (deceased)

Exception: Presumption of death
Beneficiaries must be alive at time of Delatio
Nasciturus interest
Section 2D(1)(c)
Commorientes
Beneficiaries must have capacity to inherit
Chapter 6

Commorientes
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Parties dying simultaneously in same catastrophe

Example: Husband and wife. Husband bequeath his entire estate to
wife and if she is predeceased, to my best friend
Husband and wife then die simultaneously
The beneficiary can inherit from deceased only if he survived the deceased
If one person dies before another, or simultaneously cannot inherit
Roman law presumption not part of SA law
Legal position in South African Law:
If sequence cannot be proven, there is no presumption to survival or
simultaneous death
Time of death is a question of fact to be established without
presumptions
In absence of evidence, the courts will find that commorientes died
simultaneously

Ex parte Graham
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Testatrix directed that her adopted son would inherit her entire estate
But is he is predeceased, her mother would inherit her entire estate
Mother (testatrix) and adopted son died in plane crash
Court:
Considered facts and testimony

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Chapter 1: Introduction

Evidence regarded other passengers and recovery of bodies at crash

site
Commorientes died simultaneously

Greyling v Greyling
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Husband and wife

Will: should husband die first, children would inherit the estate and wife
would have usufruct
Should wife die first, husband would inherit estate
Clause 6 should they die simultaneously
Court:
Simultaneously
Not the exact same moment (i.e. there could be a difference in time)
But as a result of same disaster