ERF 222 Exam Notes 2024 PDF

Pass and Prosper 1 ERF 222 EXAM NOTES 2024 Chapter 1 General Overview Background ❖ Deceased Estate: When someone dies, their estate, known as the "deceased estate," must be distribute...

Pass and Prosper 1 ERF 222 EXAM NOTES 2024 Chapter 1 General Overview Background ❖ Deceased Estate: When someone dies, their estate, known as the "deceased estate," must be distributed among their heirs according to the rules of succession. ❖ Law of Succession: Determines how the deceased estate is distributed, including identifying beneficiaries and the extent of their inheritances. ❖ Types of Succession: Testamentary Succession (Successio ex testamento): Based on a valid will (discussed in Chapter 3 onwards). Intestate Succession (Successio ab intestato): Applies when there is no valid will (discussed in Chapter 2). Succession by Contract (Successio ex contractu): Occurs through a contract or agreement (discussed in Chapter 14). ❖ Common Rules: Some rules apply to both testamentary and intestate succession, such as the capacity of a beneficiary to inherit. ❖ Specific Rules: Some rules only apply to either testamentary or intestate succession (e.g., accrual applies only to testate succession). ❖ Estate Administration: The process of administering deceased estates is governed by specific rules discussed in Chapter 16 ❖ Relevant Acts: Several Acts are crucial for the law of succession and estate administration, including: Administration of Estates Act 66 of 1965 Black Administration Act 38 of 1927 Children's Act 38 of 2005 Children's Status Act 82 of 1987 Civil Union Act 17 of 2006 Constitution of the Republic of South Africa 200 of 1993 (Interim Constitution) Constitution of the Republic of South Africa, 1996 Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 Intestate Succession Act 81 of 1987 (See Appendix B in the book) Law of Evidence Amendment Act 45 of 1988 Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 2 Maintenance of Surviving Spouses Act 27 of 1990 Marriage Act 25 of 1961 Matrimonial Property Act 88 of 1984 Recognition of Customary Marriages Act 120 of 1998 Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (RCLSA) (See Appendix C in the book) Trust Property Control Act 57 of 1988 Wills Act 7 of 1953 (See Appendix A in the book) Law of Overview succession in the ❖ Material rules of succession determine the distribution of a deceased legal system person's estate, beneficiaries, and their inheritance, operating in the private sphere. ❖ The administration of estates involves formal rules for liquidating a deceased estate, with the Master of the High Court involved in the process. ❖ Despite the involvement of a public office, the law of succession remains part of private law. ❖ South African succession law is a mixed system, influenced by Roman- Dutch and English law. ❖ It is also pluralistic, incorporating elements of Western and African customary law. ❖ The system reflects a blend of historical legal traditions and modern statutory reforms. ❖ Differentiate between the Law of Succession and Administration of Deceased Estates Law of Succession deals with who inherits and in what proportion. Administration of Deceased Estates deals with how the estate is managed, debts settled, and assets distributed. Dual character of Overview the law of ❖ Colonialism significantly impacted the development of general law and succession the law of succession. ❖ Customary law was not recognized during early Dutch and British occupations. ❖ After the second British occupation in 1806, some recognition of customary law began. ❖ The Black Administration Act of 1927 consolidated colonial laws, managing indigenous affairs but treating customary law as inferior to common law. ❖ Modern South African law is a mixed system influenced by Roman- Dutch, English, and customary laws. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 3 ❖ Customary law in South Africa is defined by various Acts and includes the customs traditionally observed among indigenous African peoples. ❖ South African law of succession consists of two branches: common law (testamentary and intestate) and customary law (only intestate). ❖ Although common and customary laws have equal status, customary law must be compatible with the Constitution and can be amended by legislation. ❖ The applicable law (common or customary) for a deceased estate is determined by choice of law rules from statute or judicial precedent. ❖ Customary law is not unified; conflicts between different customary laws are governed by specific rules in the Law of Evidence Amendment Act. ❖ The primary difference between common and customary succession laws lies in their societal and economic purposes, with customary law focusing on preserving the family unit and common law focusing on wealth transfer and individual property rights. Choice of law The problem of conflicting rights and obligations rules ❖ The South African legal system often involves overlapping or conflicting rights and obligations, requiring courts to use choice of law rules to determine the applicable law. ❖ This process is part of the legal discipline of choice of law or interpersonal conflict of laws, which can be challenging to apply due to difficulties in deriving rules from statute and judicial precedent. ❖ Before 1994, common and customary systems of succession were kept separate in South Africa. ❖ Specific statutes regulated the succession of black people's property, with the Black Administration Act restricting their ability to dispose of certain property through wills. ❖ House property had to follow customary law, while quitrent land followed statutory tables similar to customary law. Only family and immovable property not qualifying as house property could be disposed of by will, applying common law of succession. ❖ The Intestate Succession Act did not apply to estates governed by section 23 of the Black Administration Act, which instead followed special regulations. ❖ Succession laws were linked to the deceased's marital status; common law applied to those married in community of property, while customary law applied to those with customary marriages. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 4 ❖ Law of Succession as Objective Law As part of Objective Law: The Law of Succession is classified as part of the objective law because it sets out the legal norms that apply to inheritance matters, providing a framework for how estates should be handled after death. As part of Private Law: Within the framework of private law, the Law of Succession specifically governs the private rights and responsibilities of individuals concerning inheritance, making it a subset of private law. Testate law of succession ❖ If a valid will exists, the choice of law rules are straightforward. ❖ Customary law did not originally include the concept of a will; in its absence, common law of succession applies. ❖ A testator can specify which law should apply using the common law notion of freedom of testation. ❖ Determining whether common or customary law applies can be complex. ❖ Customary law acknowledges a family head’s deathbed wishes and property allocations but does not use wills. ❖ Conflicts can arise when interpreting vague clauses in wills, such as "my children," which may differ between common and customary law. ❖ The common law principle of reading documents in light of circumstances at the time of drafting (armchair evidence rule) applies, considering customs and culture of the testator. Intestate law of succession ❖ If a deceased person dies without a valid will, determining the applicable law is complex. ❖ Historically, statutory rules governed succession, such as section 23 of the Black Administration Act and section 1(4)(b) of the Intestate Succession Act, which excluded certain estates. ❖ Regulations under the Black Administration Act provided specific choice of law rules for individuals under customary law who died intestate. ❖ The RCLSA, enacted on 19 April 2009 and effective from 20 September 2010, modifies customary law of succession, mandating that intestate estates of those subject to customary law devolve according to the Intestate Succession Act if no will is present. ❖ The RCLSA includes provisions for resolving disputes about the application of customary law by giving jurisdiction to the Master of the High Court or a magistrate. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 5 ❖ Despite these provisions, estates may still be distributed informally by families, with formal authorities only consulted in cases of significant disagreement, making it difficult to predict the practical application of the Intestate Succession Act. ❖ Bhe v Magistrate, Khayelitsha The Constitutional Court made significant changes to choice of law rules for intestate estates under customary law. The Court declared section 1(4)(b) of the Intestate Succession Act, section 23 of the Black Administration Act, and associated regulations unconstitutional and invalid. As of 15 October 2004, the Intestate Succession Act must be applied to all intestate estates, regardless of the deceased's cultural affiliation. Customary law of succession can now be applied only if specified in a will, using the common law principle of freedom of testation. ❖ Administration of estates ❖ Prior to December 2000, different systems existed for administering intestate estates based on race, with magistrates handling black persons' estates and the Master of the High Court handling red and black persons' estates, as well as testate estates of black persons. ❖ Since 15 October 2004, following the Constitutional Court’s decision in Bhe v Magistrate, Khayelitsha, South Africa adopted a unified system of estate administration. ❖ All deceased estates are now administered under the Master's supervision according to the Administration of Estates Act. ❖ The choice of law rules now only determine whether an estate is administered by the Master or a designated magistrate's office, depending on the estate’s value. ❖ Moseneke v The Master Highlighted these racial differences in estate administration, leading the Constitutional Court to declare such legislation unconstitutional. The Court did not change the application of customary law for estate administration. Private Overview international law ❖ Private international law, also known as conflict of laws, determines of succession which country's laws apply in cases involving connections with more than one country. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 6 ❖ In South Africa, private international law of succession is not codified; it is found in common law and specific legislation. ❖ Intestate succession: Movables are governed by the law of the deceased's domicile. Immovables are governed by the law of the property's location. ❖ Testate succession: The formal validity of wills is governed by Section 3bis of the Wills Act. Wills must comply with the formalities of at least one legal system outlined in Section 3bis to be valid in South African law. For movables, validity can be based on: ▪ The law where the will was executed. ▪ The law of the country where the testator was domiciled or habitually resident at the execution or at death. ▪ The law of the country where the testator was a citizen at the execution or at death. For immovables, validity can include: ▪ Any of the above scenarios or the law where the property is located. ❖ An example of application: Emily's will involve multiple countries; different legal systems govern the validity of her movable and immovable property based on domicile, habitual residence, and property location. Succession Overview terminology ❖ Absolute bequest: A bequest that does not contain any conditions. It is the simplest form of making a bequest. ❖ Accrual (ius accrescendi): The right of co-heirs or co-legatees to inherit the share that a co-heir or co-legatee cannot or does not wish to receive. ❖ Ademption: The failure of a legacy when a testator voluntarily disposes of the object intended to bequeath before their death. ❖ Adiation: The acceptance of a benefit or inheritance from the estate of a testator. ❖ Administration of estates: The process by which a deceased estate is liquidated by an executor under the supervision of the Master of the High Court and distributed among the beneficiaries. ❖ Amanuensis: Someone who signs a will on behalf of the testator. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 7 ❖ Amendment: A change made by the testator to their will, which can include deletion, addition, alteration, or interlineation. ❖ Animus testandi: The intention of the testator to make a will. ❖ Armchair evidence: Evidence used by a court to understand the circumstances under which a will was made. ❖ Ascendants: Ancestors of the deceased; anyone in the ascending line of relationship. ❖ Attestation clause: A clause at the end of a will declaring that all parties were present and signed in each other’s presence, often including the place and date of signature. ❖ Beneficiary: The person or persons who receive a testator’s estate, called heirs if receiving an inheritance or legatees if receiving a legacy. ❖ Bequeath: To dispose of assets by means of a will. ❖ Bequest: Assets left by a deceased through a will, referred to as inheritance for heirs and legacy for legatees. ❖ Capacity to act: A person’s legal ability to enter into legal acts; must be at least 18 years old. Different from testamentary capacity. ❖ Child’s portion: The share of a deceased’s estate calculated by dividing it among surviving children or their descendants, plus any surviving spouses. ❖ Collateral: A person related to the deceased through a common ancestor, such as siblings, nieces, nephews, cousins, uncles, or aunts. ❖ Collation: Under certain circumstances, a descendant who received benefits (either property or money) from a testator during their lifetime must bring these benefits back into the estate before inheriting, ensuring fair distribution among all descendants. ❖ Commorientes: People who die simultaneously in a disaster. ❖ Competent witness: With regard to a will, any person over the age of 14 years who is competent to give evidence in a court of law. ❖ Compos mentis: Of sound mind. ❖ Conditional bequest: A bequest that depends on a future event which is uncertain in whether it will occur. ❖ Coniunctissimae personae (Coniunctissimi): The persons closest to the deceased, namely the surviving spouse, parents, and children. ❖ Contractual succession (pactum successorium): A contract attempting to regulate the devolution of the entire estate or part of the estate of one or both parties. ❖ Curator: A person legally appointed to take care of the interests of someone who is unable to manage their affairs, such as a minor or mentally ill person. A curator ad litem assists someone in litigation, while a curator bonis administers property or an estate. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 8 ❖ Customary house: In customary law, refers to the family, property, rights, and status associated with a customary marriage, which can include multiple wives under polygyny. ❖ Customary law: Refers to three categories of property: family property, house property, and personal property, each with specific rights and rules under customary practices. ❖ Customary marriage: A marriage concluded under customary law. ❖ Deceased estate: The assets and liabilities of a deceased person at the time of their death, including property and debts. ❖ Descendants: Common law descendants include lineal descendants (persons in the direct line) of the deceased, while customary law may include a wider circle of descendants. ❖ Dies cedit: The day will come; the time when a beneficiary obtains a vested right to claim delivered property unconditionally. ❖ Dies venit: The day has come; the time when a beneficiary’s right to claim delivered property becomes enforceable. ❖ Direct substitution: When a testator names substitutes who inherit if the primary beneficiary does not. ❖ Donatio mortis causa: A gift given in contemplation of death, subject to the formalities required for a will. ❖ Estate massing: When two or more testators (often spouses) consolidate their estates for testamentary purposes, effective upon the death of the first spouse. ❖ Execution of a will: The process of fulfilling all formalities required to create a valid will. ❖ Executor: The person responsible for administering a deceased estate and winding up affairs. ❖ Extrinsic evidence: Evidence outside the will itself, relating to facts not appearing within the document. ❖ Fideicommissary substitution (fideicommissum): When a testator directs a series of beneficiaries to own their estate or part of it in succession, with the first beneficiary (fiduciary) passing it to the next (fideicommissary). ❖ Formalities: Legal requirements a will must meet to be considered valid. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 9 ❖ Freedom of testation: The freedom of an individual to dispose of their estate as they wish. ❖ Heir: A beneficiary who inherits all or part of a testator’s estate; known as an heir when inheriting the entire estate or a portion thereof. ❖ Inter vivos: Between the living. ❖ Inter vivos trust: A trust created during the lifetime of its creator. ❖ Intestate succession: The legal rules that determine how succession should take place when a testator fails to regulate it through a valid will or pactum successorium. ❖ Intestate: Of or relating to someone who has died without leaving a valid will. ❖ Joint will: Where two or more testators set out their respective wills in the same document. Unlike a mutual will, joint wills do not necessarily appoint each other as beneficiaries. ❖ Juristic act: An act intended to create or alter rights and obligations, recognized by law with legal consequences. ❖ Law of succession: Legal rules governing the transfer of assets eligible for distribution to beneficiaries upon a person’s death. ❖ Legatee: A person who inherits a specific asset or a specific amount of money from a testator. ❖ Legacy: The specific asset or amount of money bequeathed to a legatee in a will. ❖ Living customary law: The actual application of customary law by people living under it, which may differ from the official version. ❖ Lobolo: The property, in cash or kind, that a prospective husband or his family agrees to give to the prospective wife’s family in a customary marriage. ❖ Male primogeniture: Under customary law, the principle where male heirs are prioritized based on their relationship through the male line, typically starting with the firstborn son. ❖ Modus or obligation: A qualification added to a gift or testamentary disposition requiring the beneficiary to use the property for a specific purpose. ❖ Mortis causa: Latin for “in contemplation of death,” typically used to describe gifts or dispositions made in contemplation of the donor’s death. ❖ Mutual will: A joint will where two or more testators confer benefits on each other in the same document. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 10 ❖ Nudum praeceptum: A prohibition in a will that is not legally binding unless a substitute beneficiary is named to receive the property if the prohibition is violated. ❖ Official customary law: The version of customary law recognized by courts and entrenched in legislation, distinct from living customary law. ❖ Pactum successorium: A contract attempting to regulate the devolution of all or part of the assets of one or both parties. ❖ Polygyny: A form of polygamy where a man has more than one wife. ❖ Posthumous: Something occurring or continuing after someone’s death, such as a posthumous child born after the father’s death. ❖ Power of appointment: The authority granted to someone by a testator to appoint certain beneficiaries as heirs or legatees. ❖ Precedent: Also known as stare decisis, the principle that courts are bound to follow the precedents set by prior decisions in similar cases. ❖ Pre-legacy: A priority legacy created in a will, which takes precedence over all other legacies and inheritances. ❖ Prodigal: A spendthrift; someone characterized by excessive or imprudent spending. ❖ Quid pro quo: Latin for “something for something,” indicating mutual consideration or exchange. ❖ Quitrent: In South African legal terms, the right to loan property from the government for a specified period in exchange for payment ❖ Rebuttable presumption: A presumption that stands as fact unless proven otherwise. ❖ Rectification: The correction of a mistake in a will by a court to reflect the testator’s true intentions. ❖ Repudiation: The rejection of a benefit or refusal to inherit from the estate of a testator. ❖ Residue or residuary estate: That part of the deceased’s estate remaining after payment of debts, taxes, expenses, and other legacies. ❖ Resolutive condition: A condition that terminates a bequest if a specific uncertain future event occurs. ❖ Resolutive time clause: A clause terminating a beneficiary’s rights at a specified time. ❖ Si sine liberis clause: A clause stipulating that if a beneficiary dies without children after the testator, the benefit passes to a third party. ❖ Spes: Latin for “hope” or “expectation.” ❖ Stipulatio alteri: A Roman law concept referring to a contract made in favor of a third person. ❖ Stipulation: General terms used for clauses in a will where the testator expresses their intentions. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 11 ❖ Stirps or stirpes: A line of descendants of common ancestry, including every descendant of the deceased who survives them or a predeceased descendant who leaves living descendants. ❖ Substitution: When a testator appoints one beneficiary to inherit a benefit and also appoints another beneficiary to take the place of the first beneficiary. Substitution can be direct (alternative) or fideicommissary (one after another). ❖ Succession to status: In customary law, the successor assumes control over the deceased’s property and the people whom the deceased controlled, inheriting both assets and liabilities. ❖ Survivor: The spouse who remains alive after the death of their spouse. In South African law, this term encompasses various types of marriages recognized under different legal frameworks. ❖ Suspensive condition: A condition in a bequest where the beneficiary does not receive the benefit until a specific uncertain future event occurs. ❖ Suspensive time clause: A clause in a bequest where the beneficiary will receive the benefit only at a specified future time. ❖ Testamentary capacity: The mental capability of a person to make a valid will, typically requiring the ability to understand the nature and consequences of making a will. ❖ Testamentary writing: A document that includes the necessary elements of a bequest: the property bequeathed, the extent of the interest bequeathed, or the beneficiary. ❖ Testate succession: Legal rules governing the distribution of a deceased person’s estate according to their wishes as expressed in a will. ❖ Testator: A person who makes a will to bequeath their estate upon death. ❖ Trust: A legal arrangement where a testator entrusts their property to a trustee to manage for the benefit of beneficiaries according to the trust instrument. ❖ Trust instrument: The document that establishes a trust and sets out its terms and conditions. ❖ Tutor: A person appointed in a will to act as guardian for a minor when the natural parent(s) are unavailable. ❖ Usufruct: A legal right where one person (usufructuary) has the right to use and enjoy the property owned by another (dominus or nude owner). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 12 ❖ Vest: When legal ownership of property or legal rights settle on a beneficiary. ❖ Will: A legal document that outlines what should happen to a person’s estate after their death, complying with formalities required by law. Ground rules of Overview succession ❖ There are a few requirements (basic ground rules) that must be fulfilled before the rules of Succession can come into operation ❖ Delatio – Estate falls open. Person must have died ❖ In both common and customary law of succession, the owner of the estate must have died for succession to occur. ❖ Estate Orpen v Estate Atkinson: The Atkinsons created a joint will, massing their estates. Mrs. Atkinson exercised a 'power of appointment' favoring her husband, Mr. Orpen. She died before her father, from whom she obtained the power. The court ruled that she could not exercise this power as she did not survive her father. ❖ The rule that a person must be dead before succession is not always straightforward, with exceptions such as: Presumption of Death: A court may order the division of an estate if a person is presumed dead but not confirmed, often requiring security to return the estate if the person reappears. Estate Massing: Consolidates the estates of various testators into one for testamentary purposes, even before the testators are dead. Commorientes: When several people die in the same disaster, determining who died first can be crucial for succession, though South African courts generally do not apply presumptions about the order of death. ❖ Ex parte Graham: A case where no presumption was made about who died first in a plane crash, leading the court to rule based on the specific evidence, concluding simultaneous death. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 13 ❖ Greyling v Greyling: A case where a husband and wife died in a car accident, and the court interpreted their joint will to mean simultaneous death, resulting in the estate being distributed as if both died at the same time. Transfer of rights and/or duties with regard to assets and/or the status of the deceased NB ❖ The transfer of rights and/or duties related to the bequest and status of the deceased is considered the second fundamental rule of the law of succession. ❖ This rule is connected to the concepts of dies cedit and dies venit. ❖ Someone must assume the deceased testator's position regarding ownership of assets or, in customary law, status. ❖ In the common law of succession, there is a transfer of rights (and sometimes responsibilities) that belonged to the deceased. ❖ In customary law, succession is more complex and depends on the type of property and the status of the deceased. ❖ Generally, succession to status positions occurs after a family head's death. ❖ There is a distinction between general succession (succession to the deceased's general status) and special succession (succession to the position of the head of the deceased's various houses). ❖ Succession to status has traditionally been limited to males and follows the rule of male primogeniture, where a family head is succeeded by his firstborn son of a particular house. ❖ The rule of male primogeniture in customary law was declared unconstitutional by the Constitutional Court in Bhe v Magistrate, Khayelitsha, leading to significant changes in the customary law of succession and estate administration. Beneficiary should at the time of dies cedit be alive or have been concelved ❖ The transfer of rights (and occasionally responsibilities) is a prerequisite for succession, requiring that there be someone to whom these rights or responsibilities can devolve. ❖ A beneficiary must be alive or at least conceived for succession to occur. ❖ If a beneficiary predeceases the testator, succession cannot occur unless the will or antenuptial contract provides for this, or if ex lege substitution applies. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 14 ❖ An exception is the nasciturus fiction, where a child conceived but not yet born at the time of the testator’s death is regarded as having rights if born alive. ❖ The nasciturus fiction is codified in section 2D(1)(c) of the Wills Act, which allows benefits to vest in children who are alive or conceived at the time of devolution and later born alive. ❖ Customary law does not have a similar fiction, but some communities have customs like ukungena and ukuvusa to produce heirs after a man's death. ❖ Ukungena allows a widow to marry her late husband's brother to continue the family line if the husband dies childless. ❖ Ukuvusa permits the deceased’s natural heir to take the deceased’s property, marry a wife considered the deceased’s wife, and have children regarded as the deceased’s children. ❖ It is challenging to determine how widely these customs are still practiced in indigenous communities. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 15 Chapter 2 Introduction Overview ❖ Law of Intestate Succession: Governs the distribution of assets when a person dies without a valid will or an antenuptial contract containing testamentary provisions. Relevant Legislation: ▪ Intestate Succession Act: Applies to estates under common law. ❖ Reform of Customary Law of Succession Act Applies alongside the Intestate Succession Act for estates under customary law. ❖ Definitions: Testate: Dying with a valid will or antenuptial contract. Intestate: Dying without a will or antenuptial contract, or with an invalid will/contract. ❖ Intestate Succession: Determines how the deceased’s estate is distributed. The Intestate Succession Act outlines who the heirs are and how assets are divided. ❖ Application of Intestate Succession: When there is no will or antenuptial contract. When a valid will becomes partially or wholly invalid (partial intestacy). When a will does not cover the entire estate. When a listed beneficiary repudiates the benefit without a substitutionary provision. When a will does not comply with formal requirements. Basic concepts Overview ❖ The law of intestate succession requires an understanding of basic concepts such as descendants, ascendants, collateral relatives, polygamy, spouses, permanent life partners, stirpes, and succession by representation. ❖ Descendants: Common law descendants include the deceased's lineal descendants (persons in the downward line). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 16 ❖ Customary law includes a wider circle of people: Persons recognized as descendants in terms of the Intestate Succession Act. Persons accepted by the deceased following customary law as his/her child. Women involved in substitute marriages or woman-to-woman marriages. ❖ Ascendants: Ancestors of the deceased, anyone in the ascending line of the relationship. ❖ Collateral relatives: Related to the deceased through a common ancestor (e.g., full siblings, half-siblings, nieces, nephews, cousins, uncles, aunts). ❖ Polygamy: Polygyny: One man married to several women Polyandry: One woman married to several men. Polygyny is most prevalent in South Africa ❖ Spouse: A person married to the deceased through South African legislation or religious personal law (Islamic Sharia law, Hindu religious law/custom) ❖ Permanent life partner: A person with whom the deceased had a relationship (same-sex or opposite-sex) with reciprocal duties of support. ❖ Stirpes: Descendants of a common ancestor. A stirpes includes all descendants of the deceased who survive or the predeceased descendants of the deceased who have living descendants. Each stirpes jointly inherits any part of the deceased's intestate estate. ❖ Succession by representation: When an heir inherits based on their relationship with a predeceased heir of the deceased. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 17 The descendant of a predeceased heir moves up into the position of the predeceased heir. Per capita distribution: ▪ Each beneficiary takes the same share, different from per stirpes distribution where each stem of the family takes the same share. Degree of Overview relationship (per ❖ The third parental group, addressed in Rule 8 of Section 1(1)(f) of the capita Intestate Succession Act, will be discussed in more detail later. beneficiaries) ❖ In this group, the intestate estate is divided per capita, not per stirpes or by representation. ❖ The estate is inherited by the nearest blood relatives based on the principle of proximity. ❖ Accurately calculating the degree of relationship is crucial to ensure the closest blood relative inherits the estate. Concept of Overview spouse: ❖ Previous interpretation: Narrow definition of "spouse" limited to a lawful marriage between one husband and one wife. ❖ Post-Constitutional era: Preference for a broader interpretation of "spouse." ❖ Current definition of "spouse" for intestate succession includes: Monogamous Muslim marriage: Survivor of a monogamous Muslim marriage is considered a spouse (Daniels v Campbell). Polygamous Muslim marriage: Widow in a polygamous Muslim marriage can inherit; exclusion is deemed unconstitutional (Hassam v Jacobs). Monogamous Hindu marriage: Partner in a monogamous Hindu marriage is considered a spouse, even if the marriage is invalid (Govender v Ragavayah). Same-sex life partnership: Partner in a permanent same-sex life partnership with reciprocal duties of support is included (Gory v Kolver). Heterosexual life partnership: Partner in a permanent heterosexual life partnership with reciprocal duties of support is included (Laubscher N.O. v Duplan and Bwanya v Master of the High Court). Customary polygamous marriage: Surviving partners in a customary polygamous marriage are recognized (Bhe v Magistrate, Khayelitsha). Definitions of Spouse (Sec 1 RCLSA & Sec 2 RCMA): “Spouse” and ❖ Partners in a customary marriage as per section 2 of the RCMA. “Descendants” Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 18 under RCLSA and ❖ Women in union with the deceased male to provide children for his RCMA house. ❖ Women in union with the deceased woman (married to a man) to provide children for her house Descendants (Sec 1 RCLSA & Sec 2(2)(b) & (c)): ❖ Person accepted as the deceased's own child. ❖ Women in union with the deceased male to provide children for his house. ❖ Women in union with the deceased woman (married to a man) to provide children for her house. Parental consists Overview of a parental ❖ First parental: Deceased and spouse including their descendants of group and its the deceased (Rule 1 3) descendants: Always inherits first. ❖ Second parental: Deceased’s parents and their descendants (first line collaterals), excluding E (Rule 4 -7) ❖ Third parental: Deceased grandparents and their descendants. Blood relations who are closely related in degrees to the deceased (Rule 8) ❖ Forth parental; Great grandparents and their descendants, in full or half blood. ❖ Why is it important to understand parental groups? Because S 1(4)(a) stipulates that in the first and second parental, distribution takes place “per stirpes” and “representation”. In the third parental distribution takes place “per capita” distribution (s 1(1)(f)) When does a Overview person die ❖ In South African law, a deceased can die wholly testate, wholly intestate? intestate, or partly testate and partly intestate. Intestate succession applies if a deceased dies: ❖ Without leaving a will at all. ❖ Having executed a valid will which has subsequently become wholly or partly inoperative for some reason. ❖ With a valid will that fails to dispose of all the deceased's assets. ❖ Leaving a document purporting to be a will but which does not comply with the formalities for wills and is not condoned in terms of section 2(3) of the Wills Act. Vesting of an Overview intestate ❖ Harris v Assumed Administrator, Estate MacGregor. inheritance ❖ Vesting of rights in intestate succession is exemplified by the case Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 19 ❖ The deceased executed a valid will in 1941 and died in 1943. ❖ The will established a testamentary trust for the benefit of his wife, with trust capital going to their children or, if none, to the deceased's brother or his brother's children.\ ❖ The deceased had no children, and his brother died in 1979 without children, resulting in intestacy regarding the trust capital. ❖ The key issue was the date of intestacy: 1943 (when the deceased died) or 1979 (when the brother died). ❖ The timing of intestacy affected the inheritance: if 1943, the deceased's mother (died 1960) would inherit; if 1979, the appellant (wife) would inherit. ❖ Common law analysis by Joubert M led to two principles: Intestate estate vests at the date of death if no will or valid will exists. If a will becomes inoperative later, intestate estate vests when the will's failure is determined. Capacity to Overview inherit intestate ❖ Only natural persons may inherit Juristic or commercial entities like companies, trusts, and associations cannot inherit intestate. ❖ Extramarital, adulterine and incestuous children Historically, extramarital children could only inherit from their mother and her relations. Section 1(2) of the Intestate Succession Act now allows extramarital children to inherit from both parents and their relations. ❖ Children born because of artificial fertilisation Governed by section 40 of the Children's Act. If a child is considered extramarital, they inherit only from the birth mother and her relations. If considered legitimate, the child inherits from the birth mother, her spouse at the time, and their relations. ❖ Children born because of surrogacy arrangements Surrogacy arrangements are recognized and governed by Chapter 19 of the Children's Act. Valid surrogacy arrangements allow the child to inherit from the commissioning parents and their relations. If the agreement is defective or rescinded, the child inherits only from the surrogate mother and her relations. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 20 ❖ Adopted children Adopted children are deemed descendants of adoptive parents, not natural parents, unless the natural parent is also the adoptive parent or married to the adoptive parent at the time of adoption. Adoption terminates rights and obligations between the child and natural parents. Adoptive children inherit as siblings. ❖ Unborn children For intestate inheritance, the nasciturus must be conceived at the time of death and born alive to inherit. If a nasciturus dies shortly after birth, they are still considered to have been born alive, and their inheritance will pass to their intestate heirs. For testate succession, Section 2D(1)(c) of the Wills Act states that benefits must vest in children alive or conceived at the time of devolution and later born alive. The assumption is that the testator wanted the nasciturus fiction to apply unless explicitly stated otherwise in the will. Nasciturus, when inheriting, are treated like minor beneficiaries and face similar limitations. Constitutional Overview challenges ❖ The law of intestate succession affects socio-economic conditions and has been tested in court multiple times. ❖ The constitutionality of intestate succession rules has been examined, including those under the Intestate Succession Act and customary law. Key Cases: ❖ Bhe v Magistrate, Khayelitsha Declared section 23 of the Black Administration Act unconstitutional. Extended the Intestate Succession Act to customary law. Criticized male primogeniture for unfair discrimination and violation of women's rights. ❖ Daniels v Campbell Extended the term "spouse" in the Intestate Succession Act to include parties in monogamous Muslim marriages. ❖ Hassam v Jacobs Included women in polygynous Muslim marriages for intestate succession purposes. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 21 ❖ Govender v Ragavayah Recognized the rights of spouses in monogamous Hindu marriages under the Intestate Succession Act. ❖ Gory v Kolver Extended intestate succession rights to same-sex partners in permanent life partnerships. ❖ Wilsnach v TM Considered the status of a grandmother as a primary caregiver and parental figure for intestate succession. ❖ Bwanya v Master of the High Court Found the Intestate Succession Act unconstitutional for not including partners in permanent opposite-sex life partnerships. Overturned previous decisions excluding such partners from intestate succession. Applicable Overview intestate ❖ Developments in both common and customary law of succession succession laws affect intestate succession rules. ❖ Before 27 April 1994: Black individuals with an African customary marriage: estate devolves according to the repealed section 23 of the Black Administration Act and relevant regulations. ❖ After 27 April 1994 but before RCLSA operation: Black individuals with an African customary marriage: estate devolves according to the Intestate Succession Act as modified by Bhe v Magistrate, Khayelitsha. ❖ Any other racial group (before or after 27 April 1994): Estate devolves according to the Intestate Succession Act. New definitions of 'spouse' and 'descendant' (from Daniels v Campbell, Hassam v Jacobs, and Govender v Ragavayah) apply only if deceased died on or after 27 April 1994. ❖ Same-sex permanent life partnership (after 27 April 1994): Estate devolves according to the Intestate Succession Act as modified by Gory v Kolver. Permanent life partnership (with reciprocal duties of support): Bwanya v Master of the High Court order applies, with a suspension of 18 months for constitutional invalidity to amend the Intestate Succession Act. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 22 The order of Overview succession ❖ The RCLSA provisions relevant to intestate succession will be under the discussed, including the role of permanent life partners and their Intestate inclusion in the rules. Succession Act ❖ The Act is NOT retrospective. read with the ❖ Therefore, it ONLY deals with the position of a person who died RCLSA intestate after the Act came into effect (18 March 1988) ❖ Before 18 March 1988 – the estate will be dealt with according to the old system (Common Law and the Succession Act 13 of 1934) ❖ If a black person who maintained an African customary lifestyle by entering a Customary marriage died intestate before 27 April 1994, his/her estate will devolve according to the repealed section 23 of the Black Administration Act and the relevant Regulations (the customary law). Rule 1: section Overview 1(1)(a) deceased ❖ If the deceased is survived by a spouse but no descendants: is survived by a ❖ A single spouse inherits the entire estate, excluding all other relatives. spouse/s or permanent life ❖ Example: Romeo, who is survived by his wife Juliet but no descendants partner, but no or siblings, leaves his entire estate to Juliet. descendants ❖ If the deceased is survived by multiple spouses but no descendants: ❖ The estate is divided equally among all surviving spouses. ❖ Example: If Romeo is survived by three wives (Emily, Anna, and Sophie), the estate is divided equally among them, with each wife receiving one-third. Rule 2: section Overview 1(1)(a): deceased ❖ If the deceased is survived by a permanent life partner but no survived by descendants: descendant/s The permanent life partner inherits the entire estate, excluding all but no spouse/s other relatives. or permanent life partner ❖ Example: Cyril, who is survived by his life partner Dennis but no descendants, leaves his entire estate to Dennis, regardless of other surviving relatives like his mother or brother. Rule 3: section Overview 1(1)b– deceased ❖ If a deceased is not survived by a spouse or permanent life partner but is not survived by has descendants, those descendants inherit the estate. a spouse(s) or ❖ Inheritance is divided equally among descendants, and representation permanent life is possible for descendants of a predeceased child. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 23 partner and ❖ Example: Rodney dies with a surviving son (Oliver), daughter (Miranda), descendants and granddaughters (Winnie and Lisa). Since his wife and son Bert (who had two daughters) have predeceased him: Oliver and Miranda each receive one-third of the estate. Winnie and Lisa each receive one-sixth, divided from Bert’s share. ❖ Posthumous children or children conceived before the deceased’s death inherit equally, including those born from artificial insemination or surrogacy. ❖ A child disqualified from inheriting due to specific circumstances (e.g., being adopted or convicted of certain crimes) is not entitled to inheritance. ❖ In the case of multiple children, each share is distributed among descendants equally, with any disqualifications considered. Rule 4 (section Overview 1(1)(c)): ❖ When a deceased is survived by both a spouse(s) and descendants, the deceased is distribution depends on the number of surviving spouses and the survived by matrimonial property regime. spouse(s) and ❖ Matrimonial Property Regimes in South Africa: descendants Marriage in community of property ▪ the spouse inherits half of the joint estate and a share of the Interstate estate. (R250 000 or child share) Marriage out of community of property with accrual ▪ the spouse receives their accrual share plus their Interstate share. (R250 000 or child share) Marriage out of community of property with no accrual ▪ Spouse only receives their Interstate share (R250 000 or child share) ❖ Scenario 1: One Spouse and Descendants The surviving spouse inherits the greater of either a child’s portion or a fixed amount (currently R250,000). Descendants inherit the residue of the estate. ❖ Examples: In Community of Property: If Anthony's estate is R600,000, Patience receives R250,000 (greater than a child’s portion of R75,000), and the remaining R50,000 is divided among the children and grandchildren. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 24 Out of Community with Accrual: If the estate is R450,000, Patience’s accrual share is deducted before dividing the estate. Remaining amount is split according to the same rules. ❖ Without Accrual: If the estate is R1,200,000, Patience receives R300,000 (greater than a child’s portion of R250,000), and the remaining R900,000 is divided among the children and grandchildren. ❖ Scenario 2: Multiple Spouses and Descendants Each spouse inherits the greater of a child’s portion or the fixed amount (R250,000). Descendants inherit any remaining estate. If the estate is insufficient to provide each spouse with the fixed amount, the estate is divided equally among the surviving spouses and descendants receive nothing. ❖ Examples: Estate of R75,000: Each of three spouses receives R25,000; children receive nothing. Estate of R1,000,000: Each spouse receives R250,000; the remaining R250,000 is divided among the children. Estate of R2,100,000: Each spouse receives R300,000; remaining R1,200,000 is divided equally among the children. Rule 5: (section Overview 1(1)(c): deceased ❖ If the deceased is survived by a permanent life partner and is survived by a descendants, the partner inherits the greater of: permanent life ❖ A fixed portion (child's share), currently R250,000, set by the Minister of partner and Justice and Constitutional Development descendants ❖ Or a portion of the intestate estate ❖ The descendants inherit the remainder of the intestate estate. ❖ Example: If Nina, who has a permanent life partner named Adam and two children (Simba and Lillibeth) from a previous marriage, has an intestate estate worth R500,000: Adam receives R250,000 Each child (Simba and Lillibeth) receives R125,000 Rule 6 (section Overview 1(1)(d)(i)): ❖ If the deceased is not survived by a permanent life partner or deceased is not descendants: survived by a ❖ The estate is inherited by both parents. spouse , life Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 25 partner or ❖ If both parents are alive, all other relatives (except stepparents) are descendants, but excluded from inheriting. by both parents ❖ Example: If Thomas is survived by his mother, Maria; his father, Fred; and his sister, Candy, but no spouse or descendants: Maria and Fred will inherit Thomas’s estate equally. Candy, the sister, will not inherit. Rule 7 (section Overview 1(1)(d)(ii)): ❖ If the deceased is survived by one parent and descendants but not the deceased is other parent: survived by one ❖ The surviving parent inherits half of the intestate estate. parent and ❖ The other half is inherited by the descendants of the predeceased and descendants parent. of ❖ If the predeceased parent has no descendants, the surviving parent the other parent inherits the entire estate. ❖ Example: If Thomas is survived by his mother, Maria; his sister, Candy; and his half-brother, Dan: Maria inherits half of Thomas's estate. The other half, which would have gone to the predeceased father, is divided equally between his descendants, Candy and Dan. Rule 8 (section Overview 1(1)e(i)(aa)-(cc)): ❖ If the deceased is not survived by a spouse, permanent life partner, deceased is not descendants, or parents, but by descendants of the deceased's survived by parents (e.g., siblings): spouse, ❖ The estate is divided into two equal shares. permanent life ❖ Each share goes to the descendants of one of the deceased's parents partner, (mother and father). descendants or ❖ Full siblings inherit from both halves. parents, but by ❖ Half-siblings inherit only from the half related to their parent. descendants of his or her parents ❖ Example 1 (Xavier’s estate): Xavier's estate of R100,000 is divided into two halves: On the father’s side: Susan (half-sister) inherits R50,000 by representation per stirpes. On the mother’s side: Ben and Carl (children of the predeceased half-brother, Hank) each inherit R25,000. Example 2 (Rupert’s estate): Rupert’s estate of R100,000 is divided into two halves: Tibault (full brother) inherits R50,000 (from both sides). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 26 On the father’s side: Ariala (half-sister) inherits R25,000 by representation per stirpes. On the mother’s side: Drew and Ashleigh (children of predeceased half-brother, Mercutio) each inherit R12,500. Rule 9 (section Overview 1(1)(e(ii): ❖ If the deceased is survived by descendants of only one predeceased deceased is parent and not by a spouse, permanent life partner, or other parents: survived by ❖ The descendants of that one parent are the sole heirs of the deceased's descendants of estate. one parent only ❖ Example (Thomas’s estate): Thomas dies intestate and is survived by his half-brother Dan, who is a descendant of one of Thomas's predeceased parents. Dan inherits Thomas's entire estate. Rule 10 (section Overview 1(1) F; the ❖ If the deceased is not survived by a spouse, permanent life partner, deceased S! descendant, parent, or descendant of a parent: survived by ❖ The nearest living family relation inherits per capita. further relations. ❖ Steps to determine the nearest family relation: 1. Identify all living relations of the deceased eligible to inherit. 2. Identify the deceased’s common ancestor(s) and those who would inherit from that ancestor. 3. Count the degrees of relationship between the deceased and potential heirs: For direct line heirs, count the degrees between the deceased and the common ancestor. For collateral heirs, count the degrees between the deceased and the common ancestor, plus the degrees between the common ancestor and the potential heir. ❖ Per capita distribution means the estate is equally distributed among those related to the deceased in the nearest degree, with no representation allowed. ❖ Example (Thomas’s estate): Carol and Donald (predeceased grandparents) are the common ancestors. Aunt Anne is related to Thomas in the third degree, while cousins Gina and Hank are related in the fourth and fifth degrees, respectively. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 27 Anne, being the closest family relation, inherits Thomas's entire estate per capita. If Thomas's grandmother, Carol, were alive, she would have inherited the estate as she would have been in the second degree of direct line succession. If both grandparents were alive, they would have inherited the estate equally per capita. Disqualification Overview and repudiation ❖ Under section 1(7) of the Intestate Succession Act, if an heir is disqualified or repudiates an inheritance: The heir is considered to have died before the deceased. If the disqualified or repudiating heir has descendants, those descendants inherit by representation. If the disqualified or repudiating heir has no descendants, the share goes to other heirs according to intestate succession rules. ❖ Section 1(7) should be read with section 1(6), which states: If an heir repudiates an inheritance and the deceased is survived by a spouse, the spouse inherits the repudiating heir's share. If there is no surviving spouse, the repudiating heir's descendants inherit per stirpes; if none, the share goes to other intestate heirs. Customary law of Overview succession ❖ The customary law of succession was largely abolished by the Bhe v Magistrate, Khayelitsha case and the RCLSA, which came into effect on 20 September 2010. ❖ The RCLSA, in conjunction with the Intestate Succession Act, applies to intestate estates of black persons who were married under African customary law. ❖ The intestate succession rules discussed in the chapter apply to all estates, including those governed by customary law. No intestate Overview heirs found ❖ If no intestate heirs are found or located after a diligent search: The inheritance is paid into the Guardian's Fund. It remains in the Guardian's Fund for 30 years before being forfeited to the State. ❖ If an intestate beneficiary is found or comes forward during that 30-year period, even if remotely related, they will inherit the intestate estate. ❖ If a person dies intestate without any heirs, the estate is declared forfeited to the state as bona vacantia (ownerless goods). Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 28 ❖ According to Section 35(13) of the Administration of Estates Act, the executor must hand over any unallocated money to the Master of the High Court, who will place it in the Guardian’s Fund. ❖ Section 92 of the Administration of Estates Act states that if the money in the Guardian’s Fund is not claimed after 30 years, it is forfeited to the state. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 29 Chapter 3 Wills Act Overview 1. Definitions 2. Formalities required in the execution of a will. ❖ 2A. Power of court to declare a will to be revoked. ❖ 2B. Effect of divorce or annulment of marriage on will ❖ 2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will ❖ 2D. Interpretation of wills 3. (Section 3 repealed by section 5 of Act 43 of 1992) ❖ 3bis. Validity of certain wills executed in accordance with the law of certain other states 4. 4.Competency to make a will ❖ 4A. Competency of persons involved in execution of will 5. ( Section 5 repealed by Section 8 of act 43 of 1992) 6. (Section 6 repealed by Section 8 of act 43 of 1992) 7. Repeal of laws 8. ( Section 8 repealed by Section 10 of act 43 of 1992) 9. Short title and date of commencement ❖ Schedule 1 - Certificate in terms of section 2(1)(a)(v) ❖ Schedule 2- Certificate in terms of section 2(1)(b)(iv) ❖ Schedule 3-LAWS REPEALED Introduction Overview ❖ The testate law of succession governs the distribution of a deceased person's estate according to the wishes expressed in their will. ❖ A testator drafts and executes a will to determine the handling of their estate after death. ❖ Upon the testator's death, the will is submitted to the Master of the High Court for validity scrutiny. ❖ If the will is valid, an executor is appointed to manage the estate's liquidation. ❖ A will must comply with the requirements and formalities specified in the Wills Act to be accepted as valid. ❖ The Wills Act, effective from 1 January 1954, simplified the will-making process in South Africa and abolished previous Roman-Dutch common law wills. ❖ The Wills Act was amended in 1992, and now only one kind of statutory will is permitted in South Africa. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 30 ❖ Will-making formalities are outlined in section 2(1)(a) of the Wills Act and apply to all wills executed after 1 January 1954. ❖ Wills properly executed under common law or pre-1953 legislation remain valid unless revoked by the testator. Wills, codicils Definition of a will and ❖ The Wills Act defines a will and its formalities, indicating that a will testamentary includes a codicil but does not cover other types of documents. writings ❖ Various writers have provided definitions of a will: Definition 1: A will is a unilateral and voluntary expression of one's intention, made in a legally prescribed manner, dictating what happens to one's estate after death. Definition 2: A will is a written document where a testator voluntarily sets out instructions for asset distribution after death. Definition 3: A will or testament is a declaration in a document, executed according to the law, regarding the distribution of property after death; the act must be free and voluntary. Definition 4: A last will and testament is a document executed legally by the testator, concerning property disposition and other matters to take effect after death. ❖ The act of making a will must be voluntary, with the intention of providing for the estate’s devolution. ❖ Essential prerequisites for a valid will include: The testator must have the free and serious intention to execute the will (animus testandi). The will must be made voluntarily. The testator must have testamentary capacity. The will must comply with the formalities prescribed by section 2 of the Wills Act. Basic requirements for a valid will ❖ Animus testandi, or the intention to make a will, is essential for a will's validity. The testator must clearly express the intention to create a will, not merely state wishes or desires. ❖ A will is invalid ab initio if there is a complete lack of animus testandi due to a mistake or if the testator's motivation was absent. Evidence of animus testandi can be disputed if the will was made under duress or fear. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 31 ❖ Undue influence, fraud, or duress affecting the testator's free will invalidates the will if it replaces the testator's own volition. ❖ Factors influencing free will, like coercion or fraud, must be distinguished from those affecting testamentary capacity, as the latter involves different grounds for invalidity. ❖ Animus testandi is the testator’s clear intention to make a will. The document must reflect this intention, not just general wishes. ❖ Volition is the testator’s genuine, uncoerced choice in distributing their estate. ❖ A will is invalid if affected by coercion, fraud, or undue influence, which impairs the testator’s true volition. ❖ Sim v The Master An unsigned document with charitable bequests was invalidated because the testator had not yet signed it, indicating no animus testandi at that time. ❖ In re Leedham The court held that the testator's intention to provide for estate devolution was sufficient for validity, even if the document was not explicitly intended to be a will. ❖ Spies v Smith The court noted that undue influence invalidates a will if it substitutes someone else's will, but persuasion alone is not enough to invalidate a will. ❖ Kirsten v Bailey The court found that undue influence and diminished testamentary capacity led to the will's invalidity due to the testator's compromised mental state. ❖ Sim v The Master An unsigned document lacked animus testandi because the testator had not completed it. ❖ Spies v Smith Undue influence can invalidate a will if it overrides the testator’s own free will. Definition of a codicil and a testamentary writing ❖ The Wills Act defines "will" but does not comprehensively address whether a codicil or testamentary writing is considered a will. ❖ Historically, there were differences between a will and a codicil, particularly regarding formalities, but modern law has eliminated these distinctions. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 32 ❖ A codicil is a separate will that must comply with the same formalities as an original will, though it is often used to amend an existing will. Example: A testator can use a codicil to increase a bequest amount while reaffirming the rest of the original will. ❖ The term "testamentary writing" under the Wills Act refers to documents that must meet formal requirements, including identifying the property, interest, and beneficiary. ❖ An inter vivos trust, created during the life of the trust creator, does not need to comply with testamentary formalities, but if a will bequeaths assets to such a trust, those assets must meet will formalities. ❖ Ex parte Davies A letter identifying a beneficiary was questioned; the court ruled that such a letter must comply with will formalities. ▪ Example: Photographs attached to a will identifying jewelry must meet formalities to qualify as testamentary writings. ❖ Oosthuizen v Die Weesheer The court determined that a sketch plan of property attached to a will must adhere to the same formalities as the will. Joint and mutual Overview wills ❖ A joint will is a single document where two or more testators outline their respective wills, but they do not necessarily name each other as beneficiaries. ❖ A mutual will is a type of joint will where the testators confer benefits on each other in the same document. ❖ All mutual wills are joint wills, but not all joint wills are mutual wills. ❖ Joint wills are common among married couples in community of property but can be made by anyone. Example: Two sisters, Catherine and Debbie, create a joint will where Catherine leaves her estate to Xandile and Debbie leaves hers to Yolanda. If Catherine had left her estate to Debbie and vice versa, it would have been a mutual will. ❖ A joint or mutual will is executed once and signed by all testators. ❖ Each testator's provisions are separate; one can revoke or amend their part of the will independently, potentially invalidating their portion without affecting others. Disclaimer: These notes are provided by Pass and Prosper for free and are drafted by Pass and Prosper tutors for their own studying benefit. These notes are not sold for profit and therefore, they may occasionally be minor mistakes. In such an event, please contact the tutor to effect the correction.  Pass and Prosper 33 Adiation and Overview repudiation ❖ Adiation is the acceptance of a benefit from a deceased person's estate, while repudiation is the rejection or refusal to inherit a benefit. ❖ In South African law, beneficiaries can choose to adiate or repudiate any benefit; there is no obligation to accept or reject a benefit. ❖ Adiation generally does not require formalities but must be in writing if the benefit is attached to an obligation. ❖ Repudiation is not easily inferred from conduct and requires written proof. ❖ Upon adiation, a beneficiary gains a vested right to claim the benefit from the executor. ❖ Repudiation might affect the estate differently depending on the will's