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What does the term 'residuary estate' refer to?
What does the term 'residuary estate' refer to?
Which of the following best describes 'testamentary capacity'?
Which of the following best describes 'testamentary capacity'?
What does the phrase 'per stirpes' signify in estate planning?
What does the phrase 'per stirpes' signify in estate planning?
What does revocation mean in legal terms?
What does revocation mean in legal terms?
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Which of these cases would likely address issues related to testamentary capacity?
Which of these cases would likely address issues related to testamentary capacity?
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What must a will be in, according to the Wills Act?
What must a will be in, according to the Wills Act?
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What is the minimum age requirement for a testator to have the capacity to make a will?
What is the minimum age requirement for a testator to have the capacity to make a will?
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How many witnesses are required to sign a will in the presence of the testator?
How many witnesses are required to sign a will in the presence of the testator?
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What is one reason why the witnesses cannot be beneficiaries under the will?
What is one reason why the witnesses cannot be beneficiaries under the will?
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Which case emphasized the strict adherence to the formalities required by the Wills Act?
Which case emphasized the strict adherence to the formalities required by the Wills Act?
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What does Section 2(3) of the Wills Act allow in special circumstances?
What does Section 2(3) of the Wills Act allow in special circumstances?
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What is the consequence of failing to comply with the formalities of the Wills Act?
What is the consequence of failing to comply with the formalities of the Wills Act?
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Which of the following is NOT a requirement for a valid will under the Wills Act?
Which of the following is NOT a requirement for a valid will under the Wills Act?
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What occurs when an individual dies without a valid will?
What occurs when an individual dies without a valid will?
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According to the Intestate Succession Act 81 of 1987, who receives the estate if the deceased had a spouse and children?
According to the Intestate Succession Act 81 of 1987, who receives the estate if the deceased had a spouse and children?
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If the deceased had no children but was married, who inherits the entire estate?
If the deceased had no children but was married, who inherits the entire estate?
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What is the first category of beneficiaries under the Intestate Succession Act?
What is the first category of beneficiaries under the Intestate Succession Act?
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In the absence of a spouse and children, who receives the deceased's estate first?
In the absence of a spouse and children, who receives the deceased's estate first?
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Which act takes precedence in cases of intestacy in South Africa?
Which act takes precedence in cases of intestacy in South Africa?
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What is the minimum age requirement for a testator in South Africa to have testamentary capacity?
What is the minimum age requirement for a testator in South Africa to have testamentary capacity?
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What is required of executors in the administration of an intestate estate?
What is required of executors in the administration of an intestate estate?
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How does customary law affect the distribution of an intestate estate?
How does customary law affect the distribution of an intestate estate?
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Which mental state can affect the testamentary capacity of a testator?
Which mental state can affect the testamentary capacity of a testator?
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What aspect of testamentary capacity is assessed at the time of executing a will?
What aspect of testamentary capacity is assessed at the time of executing a will?
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What role does medical evidence play in establishing testamentary capacity?
What role does medical evidence play in establishing testamentary capacity?
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What is the primary legislation governing the formalities of a will in South Africa?
What is the primary legislation governing the formalities of a will in South Africa?
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What is one reason why legal practitioners must ensure their clients possess testamentary capacity?
What is one reason why legal practitioners must ensure their clients possess testamentary capacity?
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If a testator has a cognitive impairment, under what condition may they still have testamentary capacity?
If a testator has a cognitive impairment, under what condition may they still have testamentary capacity?
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What fundamental aspect of will-making is emphasized in the context of testamentary capacity in South Africa?
What fundamental aspect of will-making is emphasized in the context of testamentary capacity in South Africa?
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What does a presumption of revival imply regarding a testator's intention?
What does a presumption of revival imply regarding a testator's intention?
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What is an absolute bequest?
What is an absolute bequest?
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What is required for the accrual system to apply in a marriage?
What is required for the accrual system to apply in a marriage?
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What does animus testandi refer to in relation to wills?
What does animus testandi refer to in relation to wills?
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What is the opposite of adiation in the context of inheritance?
What is the opposite of adiation in the context of inheritance?
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Which of the following statements is true regarding a will's validity?
Which of the following statements is true regarding a will's validity?
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What is the effect of a bequest?
What is the effect of a bequest?
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What is the primary focus when determining if a will is revoked or revived?
What is the primary focus when determining if a will is revoked or revived?
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Study Notes
Intestate Succession
- When a person dies without a valid will, they are considered to have died intestate.
- The Intestate Succession Act 81 of 1987 governs the distribution of an intestate estate in South Africa.
- The estate is distributed among surviving relatives according to a hierarchy of beneficiaries: spouse and children, parents, siblings, and then more distant relatives.
- If there is no surviving spouse or children, the estate goes to the deceased's parents or siblings.
- If no siblings are present, the estate is divided among more distant relatives like grandparents, aunts, and uncles.
- The Intestate Succession Act takes precedence over customary law, but customary law may still influence the distribution of an estate if the deceased had a recognized customary marriage.
- The Administration of Estates Act 66 of 1965 provides the procedures for appointing an executor and managing an intestate estate.
- The executor identifies assets, settles debts, and distributes assets according to the Intestate Succession Act.
Testamentary Capacity
- Testamentary capacity is the legal ability to make a valid will.
- This means the testator must understand their actions, the extent of their property, and the beneficiaries of their will.
- To demonstrate testamentary capacity, the testator must be 18 years or older and have sound mind, which means they can understand the consequences of their actions and make rational decisions.
- Factors like drug or alcohol influence can affect testamentary capacity.
- Legal practitioners must ensure their clients have testamentary capacity to avoid disputes about the will.
- In cases of mental impairment, the law recognizes a spectrum of capacity, and courts often rely on medical evidence and surrounding circumstances to determine capacity.
Formalities of a Will
- The Wills Act 7 of 1953 sets out the formalities required for a valid will in South Africa.
- The will must be in writing, signed by the testator, and witnessed by two individuals who are not beneficiaries.
- The testator must have testamentary capacity.
- Cases like S v.Gqiba and Harris v.Duna emphasize strict adherence to the formalities, and failure to comply can invalidate a will.
- The Wills Act allows for exceptions in special circumstances, like imminent peril of death, where a will can be validly executed without witnesses.
Presumption of Revival
- There's a presumption that a testator intends to revive a will if they take actions that suggest they want the provisions of an earlier will to apply.
- For example, if a new will refers to an earlier will or expresses intentions consistent with the earlier will, this can support a claim for revival.
Terminologies
- Absolute bequest: A simple bequest with no conditions, vesting typically occurs upon the testator's death.
- Accrual: A system for ensuring fair distribution of an estate between spouses in marriages out of community of property. It applies automatically unless the Ante-nuptial Contract specifies otherwise.
- Adiation: Accepting inheritance or benefits specified in a will.
- Amanuensis: A literary or artistic assistant, particularly one who takes dictation or copies manuscripts.
- Animus testandi: The intention to create a will. It's a required element for a valid will, with the testator not necessarily needing to explicitly intend to create a will.
- Bequest: The act of giving property by will.
- Residuary Estate: The remaining assets of a deceased person after debts, expenses, and taxes are paid.
- Revocation: Cancelling a document before it comes into legal effect or has been acted upon, like revoking a will.
- Per stirpes: A Latin phrase meaning "by roots" or "by branch", used for defining how assets are passed down in wills or retirement accounts if a beneficiary dies before the testator does.
- Testamentary Capacity: The mental and legal ability to create a will. Also referred to as a sound mind and memory or disposing mind and memory.
Cases to Know
- Bhe v Magistrate Khayelitsha: This case tackled issues of customary law and the recognition of customary marriages in South Africa.
- Daniels v Campbell: This case dealt with the legal recognition of same-sex relationships in South Africa as a defining factor for inheritance rights in a will.
- Hassam v Jacobs: This case involved the interpretation of a will and the determination of whether a bequest to "my family" was valid and how the estate would be divided.
- Gory v Kolver: This case explored the rights of a party in a customary marriage who was not formally married and their rights to inheritance as a surviving spouse.
- Casey v the Master: This case focused on the capacity of a testator to revoke a will and the necessary legal formalities to do so.
- Kidwell v the Master: This case concerns the interpretation of a will and the determination of rightful beneficiaries based on the testator's intentions.
- Estate Orpen v Estate Atkinson: This case involved the application of the accrual system in a marriage out of community of property, involving a dispute between spouses.
- Ex parte Graham: This case explores the concept of testamentary capacity and explored whether a testator had the mental ability to make a valid will.
- Bekker v Naude: This case involved the interpretation of a will with unclear language and the question of whether the testator's intentions were adequately conveyed in the will.
- MacDonald v The Master: This case focuses on the proper legal formalities for creating a will and the consequences of non-compliance.
- Blom v Brown: This case centers on the concept of undue influence in the execution of a will and whether the testator was coerced into making the will.
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Description
This quiz covers intestate succession in South Africa, focusing on the Intestate Succession Act of 1987 and its provisions. Learn about the hierarchy of beneficiaries and how estates are distributed when a person dies without a valid will. It also touches on the role of customary law and the Administration of Estates Act.
