Law of Succession LOS201/262 Assignment Semester 1 2025 PDF

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ASSIGNMENT Semester 1 2025 Module name Law of Succession Module code LOS201/262 Due date 22 April 2025 Total marks 75 This assignment is compulsory and must be submitted through CANVAS, inside the corresponding Module Course site on or before 22 April 2025 by 24:00. STEP 1: COMPLETING YOUR ASSIGNMENT Your assignment answer must include the following sections: COVER PAGE Please include the following information on the first page of the assignment: Name, Surname, Student Number and Module Code. BODY 1. The assignment answers must be typed in MS Word format and saved as a PDF document (File > Save As > Save as Type: PDF). 2. 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If you experience any difficulties during the submission process – after reading through the guide and attempting the prescribed steps – please do not hesitate to contact the office for assistance. ©STADIO [Law of Succession – LOS201/262] [Assignment – Semester 1 2025] Page 2 of 5 ARTIFICIAL INTELLIGENCE TRAFFIC LIGHT MATRIX (AIMat) RED AMBER GREEN May NOT May MUST use AI Detail of AI use use AI use AI Question 1 You may not use AI here. Question 2 You may not use AI here Question 3 You may not use AI here General You may only use AI to correct your grammar. If you decide to use AI for this purpose, capture your text before and after fixing the grammar and spelling, and explain which tool/s you used. NOTE: STADIO employs AI writing detection tools to monitor AI use. Presenting work produced by AI as your own contravenes the STADIO Plagiarism policy. Refer to the STADIO Referencing Guide for guidance. ©STADIO [Law of Succession – LOS201/262] [Assignment – Semester 1 2025] Page 3 of 5 Question 1 (15 marks) Consider the following provisions contained in a will. Each provision is either VALID or INVALID. Write down only the question number and either “Valid” or “Invalid” next to the number AND motivate your answer. If no motivation is given, no marks will be awarded. Example: If you believe sub-question 1.1. is VALID, then write down: 1.1. VALID with your MOTIVATION. 1.1. “I leave my farm, to my daughter, Daandre, provided that she never leaves the farm permanently.” (2) 1.2. “I leave my house to my firstborn son, Gaber. After Gaber’s death, it must pass to my lastborn son, Dan and when Dan dies it will go to my niece, Ester, and on her death, it must go to Ester’s firstborn child.” (4) 1.3. The trustee must appoint beneficiaries to my estate, and the division thereof is entirely up to him.” (4) 1.4. “The residue of my estate shall go to my nephew on condition that he remains unmarried after my death. If he did marry, my estate would go to the Society for the Prevention of Cruelty to Bears.” (3) 1.5. “I leave my house to my son, Ralph, but my wife, Lillian shall have the lifelong right to use and enjoy the farm.” (2) Question 2 (30 marks) Temba and Nora are married in community of property. They have a daughter, Mishka and a predeceased son, Seth. Seth, who never married, left behind two children, Abraham and Poppy. Mishka has a son, Joseph, from a previous marriage. Joseph lives with his father, Kyle and his stepmother, Sade. Temba died in a car accident. The joint estate amounts to R1 800 000. Temba left a will, which his daughter, Mishka, signed as one of two witnesses. Temba’s will contains the following provisions: “I leave R100 000 to my daughter, Mishka.” “The house must go to my wife, Nora.” “The residue of my estate must go to the SPCA.” ©STADIO [Law of Succession – LOS201/262] [Assignment – Semester 1 2025] Page 4 of 5 2.1 Assume that the will is invalid. Calculate how Temba’s estate will devolve. You must show all the calculations and substantiate your answer with the necessary legislation. (10) 2.2 Assume that the will is valid. Discuss Mishka’s capacity to inherit in terms of the will. Substantiate your answer with the necessary legislation. (15) 2.3 Assume that the will is valid, but Mishka is disqualified from inheriting. Explain what will happen to the benefit that she would have received. Substantiate your answer with the necessary legislation. (5) Question 3 (30 marks) As a law student, it is essential to develop strong research skills, engage in independent debates, and formulate well-reasoned conclusions based on legal principles and relevant case law. This mini research assignment aims to push you beyond the confines of your Study Guide and textbook, providing a valuable opportunity for academic growth and preparation for the professional environment. For this assignment, you are required to use an article from Sabinet. If you encounter any issues accessing Sabinet, please reach out to the STADIO IT department for assistance. Your lecturer is unable to assist with this administrative matter. Your response should not exceed two typed pages. Any submissions longer than this will not be graded, potentially resulting in lost marks. A well-structured answer should include (1) an introduction, (2) a body, and (3) a thoughtful conclusion. Please be aware that submitting work that is simply copied and pasted will result in a score of 0%. The article for your research is titled: "The Problematic Practical Application of Sections 1(6) and 1(7) of the Intestate Succession Act Under a New Dispensation," published in the Potchefstroom Electronic Law Journal, Vol. 17, No. 3, pp. 972-997 on1 January 2014, by J. Jamneck. Discuss the problematic interpretation of Section 1(6) of the Intestate Succession Act 81 of 1987. ASSIGNMENT TOTAL: 75 MARKS ©STADIO [Law of Succession – LOS201/262] [Assignment – Semester 1 2025] Page 5 of 5 Table of Contents Heading Page number WELCOME 1 MODULE PURPOSE AND 1 OUTCOMES Topic 1 Introduction 3 1.1 Introduction 3 1.2 General Background to the Law of Succession 4 1.3 Law of Succession in the Legal System 6 1.4 Dual Character of the Law of Succession 6 1.5 Choice of Law Rules 6 1.6 Succession Terminology 8 1.7 Ground Rules of Succession 10 Topic 2 Intestate Succession 15 2.1 Introduction 15 2.2 Basic Concepts 15 2.3 When Does a Person Die Intestate? 16 2.4 Vesting of an Intestate Inheritance 16 2.5 Capacity to Inherit Intestate 16 2.6 Constitutional Challenges 16 2.7 Applicable Intestate Succession Laws 17 2.8 The Order of Succession under the Intestate Succession Act Read with the RCLSA 17 2.9 Disqualification and Repudiation 20 2.10 Customary Law of Succession 20 Topic 3 Testate Succession: General Rules 23 3.1 Introduction 23 3.2 Wills, Codicils and Testamentary Writings 24 3.3 Joint and Mutual Wills 25 3.4 Adiation and Repudiation 26 3.5 Doctrine of Election 26 Topic 4 Testamentary Capacity 29 4.1 Introduction 29 4.2 Testamentary Capacity 29 Topic 5 Formalitites for a Will 32 5.1 Introduction 32 5.2 Formalities in Terms of Section 2(1)(a) of the Wills Act 33 5.3 Section 2(3) of the Wills Act 36 5.4 Customary Law of Succession 36 Topic 6 Revocation and Revival of Wills 38 6.1 Introduction 38 6.2 Methods of Revoking a Will 39 6.3 Presumptions Concerning the Revocation of Wills 39 6.4 Doctrine of Dependent Relative Revocation 40 6.5 Revival of Wills 40 6.6 Revocation by the Court: Section 2A 40 6.7 Customary Law of Succession 42 Topic 7 Capacity to Inherit 44 7.1 Introduction 44 7.2 Persons Capable of Inheriting: Natural Persons 44 7.3 Persons Capable of Inheriting: Juristic Persons 45 7.4 Persons Disqualified from Inheriting 45 7.5 Customary Law of Succession 45 Topic 8 Freedom of Testation 48 8.1 Introduction 48 8.2 Limitations on Freedom of Testation 49 8.3 Power of Appointment 49 8.4 Customary Law of Succession 51 Topic 9 Content of Wills: Absolute Bequests, Conditions, the Modus and Estate Massing 53 9.1 Introduction 53 9.2 Vesting of Rights 54 9.3 Bequests 54 9.4 Nudum Praeceptum 55 9.5 Modus or Obligation 55 9.6 Estate Massing 55 9.7 Customary Law of Succession 56 Topic 10 Content of Wills: Substitution, Usufruct and Accrual 60 10.1 Introduction 60 10.2 Substitution 60 10.3 Direct Substitution 61 10.4 Fideicommissary Substitution (Fideicommisseum) 61 10.5 Statutory Restriction on the Fideicommissum 61 10.6 Legal Position of the Parties to a Fideicommissum 62 10.7 Presumption against a Fideicommissum 62 10.8 Usufruct 62 10.9 Common Law Accrual 63 10.10 Customary Law of Succession 63 Topic 11 Content of Wills: Trusts 66 11.1 Introduction 66 11.2 Brief Historical Perspective 67 11.3 Defining a Trust 67 11.4 Legal Nature of the Testamentary Trust 68 11.5 Requirements (or Essentialia) for the Creation of a Valid Trust 68 11.6 Core Elements of a Trust 69 11.7 Trustees 69 11.8 Beneficiaries 70 11.9 Amendment of Trust Provisions 70 11.10 Termination of a Trust 71 11.11 Customary Law of Succession 71 Topic 12 Collation 74 12.1 Introduction 74 12.2 Who Participates in Collation? 75 12.3 What Benefits Are Collatable? 75 12.4 Valuation of Collatable Benefits 75 12.5 Customary Law of Succession 76 Topic 13 Interpretation of Wills 79 13.1 Introduction 79 13.2 Golden Rule of Interpretation: ‘To Ascertain the Wishes of the Testator from the Language Used’ 79 13.3 Statutory Rules of Interpretation 80 13.4 Common Law Rules of Interpretation 81 13.5 Variation of Wills 81 13.6 Rectification of Wills 82 13.7 Customary Law of Succession 83 Topic 14 Succession by Contract (Pactum successorium) 86 14.1 Introduction 86 14.2 Origin of the Prohibition of the Pactum Successorium 86 14.3 What Is the Pactum Successorium Used For? 87 14.4 Customary Law of Succession 87 Topic 15 Customary Law and the Reform of Customary Law of Succession Act 90 15.1 Introduction 90 15.2 Content of the RCLSA 91 15.3 Order of Succession in Customary Law Estates 91 Topic 16 Administration of Estates 93 16.1 Introduction 93 16.2 Legal Reform of the Administration of Intestate Estate of Black Persons 95 16.3 Uniform Rules for the Administration of Deceased Estates 95 REFERENCES 98 List of Figures Figure Page number Figure 9.1 Different Ways of Making Bequests 54 List of Tables Table Page number Table 1.1 List of Concepts Inherent in the Law of Succession 8 Welcome Welcome to The Law Of Succession! The law of succession prescribes rules that determine what should happen to a person's estate after his or her death. It identifies the persons (the beneficiaries) entitled to succeed to the deceased’s estate and the extent of the benefits they are to receive. It further determines the different rights and duties that persons, for example, beneficiaries and creditors, may have in a deceased’s estate and forms part of private law. The law of succession comprises two branches, namely the common law of succession and the customary law of succession. These two branches enjoy equal status and are subject to the Constitution and other legislation. The common law of succession is divided into the testate law of succession and the intestate law of succession, while the customary law of succession only operates intestate. We trust that you will enjoy the exciting issues and challenges you will be facing. We look forward to accompany you on this meaningful and positive learning journey. Module Purpose and Outcomes 1. Introduction 2. Intestate succession 3. Testate succession: general rules 4. Testamentary capacity 5. Formalities for a will 6. Revocation and revival of wills 7. Capacity to inherit 8. Freedom of testation 9. Content of wills: absolute bequests, conditions, the modus and estate massing 10. Content of wills: substitution, usufruct and accrual 11. Content of wills: trusts 12. Collation © STADIO (Pty) Ltd Law of Succession LOS201/262 1 13. Interpretation of wills 14. Succession by contract (pactum successorium) 15. Customary law and the reform of customary law of succession act 16. Administration of estates Note Any reference to masculine gender may also imply the feminine. Singular may also refer to plural and vice versa. Prescribed Reading The prescribed textbook for The Law Of Succession I (LOS201) is: Jamneck, J. Rautenbach, C. Paleker, M. Van der Linde, A. Wood-Bodley, M. 2017. The Law Of Succession In South Africa, 3rd ed. Oxford University Press Southern Africa (Pty) Limited [ISBN: 978–0–19042816–7] © STADIO (Pty) Ltd Law of Succession LOS201/262 2 Topic 1 Introduction Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 1) 1.1 Introduction After completing this topic, you should be able to: Discuss a basic background to the law of succession Contextualise the law of succession in the legal system Define and discuss the dual character of the law of succession Discuss choice of law rules Define and explain succession terminology Explain the ground rules of succession The law of succession prescribes rules that determine what should happen to a person's estate after his or her death. The rules of succession identify the persons (the beneficiaries) entitled to succeed to the deceased’s estate and the extent of the benefits they are to receive. The law of succession determines the different rights and duties that persons, for example, beneficiaries and creditors, may have in a deceased’s estate and forms part of private law. The law of succession comprises two branches, namely the common law of succession and the customary law of succession. These two branches enjoy equal status and are subject to the Constitution and other legislation. The common law of succession is divided into the testate law of succession and the intestate law of succession, while the customary law of succession only operates intestate. © STADIO (Pty) Ltd Law of Succession LOS201/262 3 There are various rules to determine whether the common law rules or the customary law rules are applicable: The common law of succession applies to testate succession except if a testator living under customary law prescribed otherwise in his or her will, or if a court decides otherwise. The intestate Succession Act applies to all intestate estates irrespective of the cultural affiliations of the deceased. Succession may take place in three ways: in accordance with a valid will (testamentary succession) through the operation of intestate succession (without a valid will) in terms of a contract (pactum successorium) contained in a duly registered antenuptial contract or a donatio mortis causa. There are a few requirements (with exceptions) that must be fulfilled before the rules of succession can come into operation: The testator must have died. There has to be a transfer of rights and/or duties with regard to the estate and/or the status of the deceased depending on the nature of the succession rules (common law or customary law). At the time of dies cedit, the beneficiary has to be alive or have been conceived. The beneficiary must be competent to inherit. 1.2 General Background to the Law of Succession The law of succession forms part of private law. It comprises legal rules that determine what should happen to a person's estate after his or her death. The rules of succession identify the persons entitled to succeed the deceased (the beneficiaries) and the extent of the benefits (inheritances or legacies) they are to receive. The rules also determine the rights and duties that persons, for example beneficiaries and creditors, may have in the deceased’s estate. Succession may take place in three ways: 1. in accordance with a valid will, that is, testamentary succession or successio ex testamento, which is discussed from Unit 3 onwards 2. through the operation of the law of intestate succession in the absence of a valid will, that is, successio ab intestato or successio legitima, which is discussed in Unit 2 3. in terms of a contract or agreement, that is, successio ex contractu or pactum successorium, which is discussed in Unit 14. © STADIO (Pty) Ltd Law of Succession LOS201/262 4 The law of succession also includes rules describing the administration process of deceased estates. The literature usually deals with these rules separately, but they are formal rules that form part of the law of succession and will thus be dealt with in Unit 16. A number of Acts are of importance for the law of succession and the administration of estates, and will be referred to throughout the book. They include the following: 1. Administration of Estates Act 66 of 1965 (hereinafter referred to as the Administration of Estates Act) 2. Black Administration Act 38 of 1927 (hereinafter referred to as the Black Administration Act) 3. Children's Act 38 of 2005 (hereinafter referred to as the Children's Act) 4. Children’s Status Act 82 of 1987 (hereinafter referred to as the Children’s Status Act) 5. Civil Union Act 17 of 2006 (hereinafter referred to as the Civil Union Act) 6. Constitution of the Republic of South Africa 200 of 1993 (hereinafter referred to as the Interim Constitution) 7. Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution) 8. Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 (hereinafter referred to as the Immovable Property Removal or Modification of Restrictions Act) 9. Intestate Succession Act 81 of 1987 (hereinafter referred to as the Intestate Succession Act). See Appendix B at the end of the book for a copy of this Act. 10. Law of Evidence Amendment Act 45 of 1988 (hereinafter referred to as the Law of Evidence Amendment Act) 11. Maintenance of Surviving Spouses Act 27 of 1990 (hereinafter referred to as the Maintenance of Surviving Spouses Act) 12. Marriage Act 25 of 1961 (hereinafter referred to as the Marriage Act) 13. Matrimonial Property Act 88 of 1984 (hereinafter referred to as the Matrimonial Property Act) 14. Recognition of Customary Marriages Act 120 of 1998 (hereinafter referred to as the Recognition of Customary Marriages Act) 15. Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 (hereinafter referred to as the Reform of Customary Law of Succession Act and abbreviated as RCLSA). 16. Trust Property Control Act 57 of 1988 (hereinafter referred to as the Trust Property Control Act) 17. Wills Act 7 of 1953 (hereinafter referred to as the Wills Act). © STADIO (Pty) Ltd Law of Succession LOS201/262 5 1.3 Law of Succession in the Legal System The material rules of the law of succession prescribe what becomes of a person’s estate after death, who the beneficiaries are and what they will inherit. They also determine the different rights and duties that persons, for example beneficiaries, may have in a deceased's estate. The-formal rules describing the process by which a deceased estate is liquidated are referred to as the administration of estates. Although the office of the Master of the High Court is involved in the process, the rules still operate in the private sphere. 1.4 Dual Character of the Law of Succession Activity 1.1 Define and explain the dual character of the law of succession. 1.5 Choice of Law Rules 1.5.1 The Problem of Conflicting Rights and Obligations The duality of the South African legal system inevitably leads to situations where persons are subject to overlapping or conflicting rights and obligations. Whenever this happens, the courts have to apply choice of law rules to determine which law is applicable. This process forms part of the legal discipline known as the choice of law rules or interpersonal conflict of laws. The relevant choice of law rules can be derived from statute and judicial precedent, the application of which is, unfortunately, not always without difficulty. 1.5.2 Testate Law of Succession Where there is a valid will, the choice of law rules are fairly straightforward. The concept of a will was not found in the customary law of succession and, in the absence of a direct provision indicating which law should be applicable, the common law of succession should apply, especially with regard to questions of capacity and validity. © STADIO (Pty) Ltd Law of Succession LOS201/262 6 A testator could, of course, indicate in his or her will which law should apply by using the well-known common law notion of freedom of testation discussed in Unit 8. 1.5.3 Intestate Law of Succession Activity 1.2 Define and explain the legal term 'intestate law of succession'. 1.5.4 Administration of Estates The choice of law rules also applied to the liquidation of deceased estates prior to December 2000 when a separate system existed for administering intestate estates depending on a person’s race. A magistrate administered black persons’ estates, while the Master of the High Court administered the estates of all other race groups, as well as the testate estates of black persons. Moseneke v Master brought these differences to the fore when the Constitutional Court declared any legislation that creates different systems of administration on the grounds of race to be unconstitutional. The Court did not, however, change the circumstances pertaining to the administration of estates having to devolve in accordance with the customary law of succession. Various other legislative measures have since been enacted but they have been applicable to all estates except those having to devolve in terms of customary law. On 15 October 2004, the Constitutional Court in Bhe v Magistrate, Khayelitsha, amended the position even further by declaring that South Africa should have a unified and unbiased system of administration of estates. The Court ordered that all new deceased estates were to be administered under the Master's supervision according to the Administration of Estates Act. Since 2004, a unitary system of administration of estates exists for all South Africans and the choice of law rules only apply to the question of whether a deceased estate must be administered by the Master or a designated Magistrates’ Office depending on the value of the estate. © STADIO (Pty) Ltd Law of Succession LOS201/262 7 1.6 Succession Terminology Activity 1.3 Define the following concepts listed in Table 1.1: Table 1.1 List of Concepts Inherent in the Law of Succession Concept Meaning absolute bequest accrual or the right to accrual (lus accrescendi) ademption adiation administration of estates amanuensis amendment animus testandi armchair evidence ascendants attestation clause beneficiary or beneficiaries bequeath bequest capacity to act child's portion collateral collation or collation bonorum commorientes competent witness compos mentis conditional bequest coniunctissimae personae or coniunctissimi contractual succession or pactum successorum curator customary house customary law property customary marriage deceased estate descendants dies cedit dies venit © STADIO (Pty) Ltd Law of Succession LOS201/262 8 direct substitution donatio mortis causa estate massing execution of a will executor extrinsic evidence fideicommissary substitution or fideicommissum fideicommissum residui formalities freedom of testation heir inter vivos inter vivos trust intestate law of succession or successio ab intestato joint will juristic act law of succession legatee living customary law lobolo male promogeniture modus or obligation mortis causa mutual will nudum praeceptum official customary law pactum successorium polygyny and polygynous posthumous power of appointment precedent system pre-legacy prodigal quid pro quo quitrent land rebuttable presumption rectification repudiation residue or residuary state resolutive (terminative) condition resolutive (terminative) time clause or resolutive term si sine liberis decessirit clause spes stipulatio alteri © STADIO (Pty) Ltd Law of Succession LOS201/262 9 stipulation or provision stirps or stirpes substitution succession to status survivor or surviving spouse suspensive condition suspensive time clause or suspensive term testamentary capacity testamentary writing testate law of succession or successio ex testamento testator trust trust instrument tutor usufruct, usufructus or life interest vest will or testament 1.7 Ground Rules of Succession There are a few requirements (basic ground rules) that must be fulfilled before the rules of succession can come into operation. 1.7.1 Person Must Have Died In both the common and customary law of succession (in the case of property), a prerequisite for succession is that the owner of the estate must have died. In customary law, succession to status positions takes place only on the death of the family head, while the death of another family member does not give rise to succession to his or her status. Although the requirement of the death of the testator seems so obvious, it is not always a simple matter and there are various examples of situations where the application of the rule has been problematic or deviated from. The first exception to the rule that a person must be dead before succession can occur is where a court pronounces a presumption of death and makes an order for the division of the estate. Those who allege that a person is dead have to prove it. Where the body is present and can be identified, death can easily be proved. However, where a person has disappeared and a body has not been found, death is difficult to prove. © STADIO (Pty) Ltd Law of Succession LOS201/262 10 Only when a court makes a presumption of death order, can the disappeared person's estate be administered. Because it is possible that the deceased might still be alive, this case constitutes an exception to the rule that he or she must be dead before succession can occur. For this reason, it is also customary for a court to order that the estate of the person presumed to be dead should be distributed among his heirs subject to the provision of security that the estate can be returned to him should he reappear. Factors which a court may take into consideration in making such an order include the length of time that the person has been missing, the age, health and position in society of the missing person, as well as the circumstances of the disappearance. A second exception to the rule that a person must be dead can be found in the case of estate massing. When estates are massed, the entire estates or parts of the estates of various testators are consolidated into a single economic unit for the purpose of testamentary disposal. The effect of estate massing is that the surviving testator’s estate dissolves according to the will of the first-dying while he or she is still alive. The rule that a person must be dead before succession can take place is also important when a number of people are killed in the same disaster (commorientes). In such a case, it may be difficult to determine who died first, but it may be important to investigate who died first in order to choose the beneficiaries, especially if the victims are family members. It could happen that the estates of the victims are devolved as if they died simultaneously, while in actual fact one or more of them died at a later time. In Roman-Dutch law, certain presumptions existed when members of the same family died in circumstances where it was difficult to determine who died first. The South African courts, however, did not apply these presumptions and the general rule is that there is no presumption of persons predeceasing each other or of simultaneous death. 1.7.2 Transfer of Rights and/or Duties with Regard to Assets and/or the Status of the Deceased This ground rule is linked to the issue of dies cedit and dies venit discussed in Unit 9. The fact that there has to be a transfer of rights and/or duties with regard to the bequest and/or status of the deceased can also be regarded as a ground rule of the law of succession. © STADIO (Pty) Ltd Law of Succession LOS201/262 11 Somebody must take the place of the deceased testator with regard to ownership of his assets or, in the case of customary law, with regard to status. In the case of the common law of succession, there is a transfer of rights (and sometimes also responsibilities) which belonged to the deceased. In the case of the customary law of succession, the situation is more complicated and depends on the type of property and the status of the deceased. In general, it can be said that succession to status positions takes place only after the death of a family head. Distinction is made between general succession (succession to the general status of the deceased) and special succession (succession to the position of the head of the various houses of the deceased). Although there have been exceptions to the rule, succession to status is mainly limited to males and succession follows the rule of male primogeniture, which means that a family head is succeeded by his firstborn son of a particular house. 1.7.3 Beneficiary Should at the Time of Dies Cedit Be Alive or Have Been Conceived The transfer of rights (and occasionally also responsibilities) is a prerequisite for succession – there must be somebody on whom the rights (or responsibilities) can devolve. Where a beneficiary has already died (is predeceased) when the bequeathed benefit vests, there can be no succession except if the deceased made provision in his or her will or antenuptial contract for the predecease of the beneficiary or in circumstances where ex lege substitution applies. An exceptional situation is where a beneficiary has been conceived but not yet born when the bequeathed benefit vests. Since an unborn child is incapable of bearing rights and cannot inherit, the vesting of the bequest is held over until the child is born alive. This situation is referred to as the nasciturus fiction (a common law concept) in terms of which a child who survives birth is regarded as having obtained rights from the moment of conception, provided that conception took place before the death of the testator. In addition, the nasciturus fiction has been codified in the testate law of succession by section 2D(1)(c) of the Wills Act. This section provides that any benefit allocated to the children of a deceased shall vest in such children who are alive at the time of the devolution of the benefit, or who have already been conceived at the time of the devolution of the and who are later born alive. Customary law does not have a similar fiction, but some communities have customs that are meant to produce heirs for a husband after his death. Ukungena, for example, is a custom which expects a widow to marry one of her husband's brothers after his death. © STADIO (Pty) Ltd Law of Succession LOS201/262 12 If a man dies childless, the custom of ukungena allows for the continuation of his family line. Another custom, ukuvusa, allows for the natural heir of the deceased (for example, his brother) to take the deceased’s property and then to take a wife who will be regarded as the deceased’s wife and whose children will be known as the deceased’s children. It is, however, difficult to determine to what extent these customs are still followed by indigenous communities. 1.7.4 Beneficiary Must Be Competent to Inherit The mere fact that somebody has been named as heir or legatee in a will or in terms of the rules of intestate succession does not necessarily mean that the person has the right to the relevant benefit. Although most persons are competent to inherit, there are some who do not have the competence to take up a benefit in terms of a specific will. There are also certain persons who are not competent to benefit intestate from a specific deceased. All these cases will be dealt with in Units 2 and 7. In customary law, the competence of the beneficiary is often linked to the rule of male primogeniture. The customary rule of male primogeniture was declared unconstitutional by the Constitutional Court in Bhe v Magistrate, Khayelitsha. This case brought about fundamental changes to the customary law of succession and the administration of estates, and will be discussed in more detail in Units 2 and 15. Summary The topic provided a brief introduction to the study of the law of succession. It summarised important terminology relating to the law of succession, and provided a foundation and point of reference for subsequent Units. © STADIO (Pty) Ltd Law of Succession LOS201/262 13 Self-Assessment Questions After completing this topic, you should be able to answer the following self- assessment questions: 1.1 Define and explain the term 'the law of succession'. 1.2 Explain how the law of succession fits into the legal system. 1.3 Define and discuss the dual character of the law of succession. 1.4 Explain the legal term 'choice of law rules'. 1.5 Define and explain succession terminology. 1.6 Explain the ground rules of succession. © STADIO (Pty) Ltd Law of Succession LOS201/262 14 Topic 2 Intestate Succession Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 2) 2.1 Introduction After completing this topic, you should be able to: Contextualise the death of a person intestate Conceptualise vesting of an intestate inheritance Explain the capacity to inherit intestate Discuss Constitutional challenges Contextualise applicable intestate succession laws Contextualise the order of succession under the lntestate Succession Act read with the RCLSA Define and discuss disqualification and repudiation. Explain the term 'customary law of succession' In South Africa, certain rules of intestate succession are codified in two Acts, namely the Intestate Succession Act and the Reform of Customary Law of Succession Act (RCLSA). If the deceased lived under the common law system, only the Intestate Succession Act applies to his or her estate. If, however, the deceased lived under a system of customary law, the Intestate Succession Act read with the RCLSA is applicable. 2.2 Basic Concepts Activity 2.1 Define the following concepts relating to intestate succession: Descendant Ascendant © STADIO (Pty) Ltd Law of Succession LOS201/262 15 Collateral Stirps of stirpes Succession by representation per stirpes 2.3 When Does a Person Die Intestate? In South African law, it is possible for a deceased to die wholly restate, wholly intestate, or partly testate and partly intestate. Intestate succession applies if a deceased dies: 1. without leaving a will at all 2. having executed a valid will which has subsequently become wholly orpartly inoperative for some or other reason 3. with a valid will that fails to dispose of all the deceased’s assets 4. leaving a document purporting to be a will, but which does not complywith the formalities for wills and is not condoned in terms of section2(3) of the Wills Act. 2.4 Vesting of an Intestate Inheritance The question of vesting of rights in the context of intestate succession is best illustrated by referring to the leading case on the subject, Harris v Assumed Administrator; Estate MacGregor. Refer to the prescribed text book, page 24 for the relevant example. 2.5 Capacity to Inherit Intestate Activity 2.1 Explain the capacity to inherit intestate. 2.6 Constitutional Challenges The law of intestate succession is more than a series of legal rules; it also has a far-reaching socio-economic impact. The constitutionality of the Intestate Succession Act, as well as certain intestate succession rules of the customary law of succession, has been tested numerous times in court. © STADIO (Pty) Ltd Law of Succession LOS201/262 16 Activity 2.2 Discuss the constitutional challenges relating to intestate succession. 2.7 Applicable Intestate Succession Laws The developments over the last few years in both the common and customary law of succession have important implications for the future application of intestate succession rules. The position at present is as follows: 1. If a black person who maintained an African customary lifestyle by entering into an African customary marriage died intestate before 27 April 1994, his or her estate would devolve according to the repealed section 23 of the Black Administration Act and the relevant regulations (the customary law). 2. If a black person who maintained an African customary lifestyle by entering into an African customary marriage died after 27 April 1994 but before the RCLSA came into operation, his or her estate would devolve according to the Intestate Succession Act as modified by the Constitutional Court in Bhe v Magistrate, Khayelitsha. 3. If a person of any other racial group died intestate, whether he or she died before or after 27 April 1994, his or her estate would devolve according to the Intestate Succession Act. However, the new definitions of ‘spouse’ and ‘descendant’ endorsed in Daniels v Campbell, Gory v Kolven, Hassam v Jacobs and Govender v Ragavayah would only be applicable if a deceased died on or after 27 April 1994. 2.8 The Order of Succession under the Intestate Succession Act Read with the RCLSA Only the provisions of the RCLSA relevant to the order of intestate succession are discussed here. Other provisions of the RCLSA are discussed in Unit 15. 2.8.1 Rule 1 (S 1(1)(a)): Deceased Is Survived by Spouse(s), but by no Descendants The rule applicable when a deceased is survived by a spouse or spouses but not by descendants depends on two possible variables: © STADIO (Pty) Ltd Law of Succession LOS201/262 17 1. Where the deceased is survived by one spouse, the spouse inherits the entire intestate estate. This means that even if the deceased is survived by parents, or brothers and sisters, they are excluded. 2. Where the deceased is survived by more than one spouse, the intestate estate must be divided equally among all the spouses. 2.8.2 Rule 2 (S 1(1)(b)): Deceased Is Not Survived by a Spouse, but Is Survived by Descendants Where the deceased is survived by a descendant or descendants, but not by a spouse or spouses, the descendant or descendants inherit the entire intestate estate equally and representation is possible. In terms of section 1(7) of the Intestate Succession Act, if a child of the deceased has predeceased the deceased, or is disqualified from inheriting, or renounces the inheritance, then the share (which that child would have received) passes equally to descendants of that child. This process is known as representation ex lege (by operation of law) and continues ad infinitum. 2.8.3 Rule 3 (S :1(1)(c)): Deceased Is Survived by Spouse(s) and Descendants There are two possible scenarios for this rule depending on the number of spouses surviving the deceased. It may also be further divided according to the matrimonial property regime applicable. Activity 2.3 Discuss the following scenarios relating to the deceased being survived by spouse(s) and descendants: Where the deceased is survived by one spouse Where the deceased is survived by more than one spouse 2.8.4 Rule 4 (S 1(1)(d)(I)): Deceased Is Not Survived by Spouse or Descendants, but by Both Parents Where the deceased leaves no spouse or descendant, but is survived by both parents, they inherit the intestate estate in equal shares. Parents include the biological, adoptive and the commissioning parents in the case of surrogacy of © STADIO (Pty) Ltd Law of Succession LOS201/262 18 the deceased, but not a step-parent. If both parents of the deceased are alive, all other collateral relations of the deceased are excluded from inheriting. 2.8.5 Rule 5 (S 1(1)(d)(II)): Deceased Is Survived by One Parent and the Descendants of the Other Parent Where the deceased is survived by no spouse or descendant but by one of his or her parents and by the descendant or descendants of a predeceased parent, the surviving parent inherits one half of the intestate estate and the descendants of the deceased parent the other half. If the deceased parent has no descendants, the surviving parent inherits the entire estate. Division between the descendants of a predeceased parent of the deceased takes place by representation per stirpes. 2.8.6 Rule 6 (S 1(1)(e)(i)(aa)-(cc)): Deceased Is Not Survived by Spouse, Descendants or Parents, but by Descendants of His or Her Parents Where the deceased is not survived by a spouse, a descendant or a parent, but is survived by descendants of his or her parents (for example, by a brother or sister, whether of full or half blood), the intestate estate is divided into halves. It is said that the estate is cloven into two equal shares with each share going to the side of one of the deceased’s parents. From there, one half goes to the descendants of the deceased father by representation per stirpes, and the other half to the descendants of the deceased mother by representation per stirpes. The full brothers and sisters of the deceased will take a share from both halves. However, half-brothers and half-sisters take a share from the half of the estate of the parent through which they are related to the deceased. 2.8.7 Rule 7 (S 1(1)(e)(ii)): Deceased Is Survived by Descendants of One Parent Only If the deceased is not survived by a spouse, descendants or parents, and only one of his predeceased parents has left descendants, those descendants are the sole heirs. 2.8.8 Rule 8 (S 1(1)(f)): The Deceased Is Survived by Further Relations Where the deceased is not survived by a spouse, descendant, parent or a descendant of a parent, the nearest blood relation inherits. © STADIO (Pty) Ltd Law of Succession LOS201/262 19 2.9 Disqualification and Repudiation In terms of section 1(7) of the Intestate Succession Act, if a person is disqualified from being an intestate heir of the deceased or repudiates as (renounces) an inheritance, the benefit which that heir would have received devolves as if the heir had died immediately before the deceased died, and as if the heir had not been disqualified from inheriting or had not repudiated the inheritance. What this means is that the heir is deemed to have predeceased the deceased. If the disqualified or repudiating heir has descendants of his or her own, those descendants will inherit by representation the inheritance which the disqualified heir would have inherited. If the disqualified or repudiating heir has no descendants, then the share which he or she would have received will go to the other heirs of the deceased according to the normal principles of intestate succession. It is important to note, however, that where an heir repudiates an inheritance, one must apply section 1(7) in conjunction with section 1(6) of the Act because section 1(7) is ‘subject to’ section 1(6). This means that the following is the position: If an intestate heir of the deceased repudiates an inheritance and the deceased is survived by a surviving spouse, the surviving spouse will inherit the repudiating heir's share. However, if the deceased is not survived by a surviving spouse, then the repudiating heir will be deemed to have predeceased the deceased and his or her descendants will inherit by representation per stirpes. In the latter scenario, should it turn out that the repudiating heir has no descendants, the inheritance will pass to the intestate heirs of the deceased according to the normal rules of intestate succession. From the wording of section 1(6), it is clear that the section will not apply when an heir is disqualified. 2.10 Customary Law of Succession As already explained, the customary law of succession was abolished to a large extent by Bhe v Magistrate, Khayelitsha followed by the RCLSA which came into operation on 20 September 2010. This Act, read with the Intestate Succession Act, will be applicable to all intestate estates of black persons who maintained an African customary lifestyle by entering into an African customary marriage. Although the rules of the customary law of succession are theoretically no longer in operation, it is possible for a testator to stipulate in his or her will that his or her estate must devolve in terms of the customary law of succession. © STADIO (Pty) Ltd Law of Succession LOS201/262 20 For this reason, it is necessary to know what the rules are in such a case. Therefore, a general overview of the rules is provided in Unit 15. Summary The law of intestate succession only applies where the testator has not left a valid will, testamentary provisions contained in a valid pactum successorium such as an antenuptial contract, or where he or she leaves a will, but the will fails for some or other reason. In the past, certain intestate estates of African people were distributed according to the ‘official customary law’ as entrenched in the Black Administration Act and the regulations thereto while the intestate Succession Act applied to the rest of the population. Initially, the word ‘spouse’ in the intestate Succession Act was restrictively interpreted to mean those spouses who had contracted a marriage in terms of the Marriage Act. This restrictive interpretation has now been extended by case law. The intestate Succession Act together with the Children’s Act has extended the categories of persons who may be intestate succession heirs. For example, all natural persons irrespective of whether they are adopted, extramarital, conceived as a result of an artificial insemination procedure or born as a result of a surrogacy arrangement now have capacity to inherit. While the intestate Succession Act is important, one cannot discount case law when determining the rules of intestate succession. Furthermore, the RCLSA is relevant for determining intestate succession laws. Self-Assessment Questions 2.1 Define and explain the death of a person intestate. 2.2 Discuss vesting of an intestate inheritance. 2.3 Explain the capacity to inherit intestate. 2.4 Discuss the Constitutional challenges relating to intestate succession. © STADIO (Pty) Ltd Law of Succession LOS201/262 21 2.5 Discuss the applicable intestate succession laws. 2.6 Discuss the order of succession under the lntestate Succession Act read with the RCLSA. 2.7 Define and discuss disqualification and repudiation. 2.8 Explain the term 'customary law of succession'. © STADIO (Pty) Ltd Law of Succession LOS201/262 22 Topic 3 Testate Succession: General Rules Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 3) 3.1 Introduction After completing this topic, you should be able to: Conceptualise the terms will, codicils and testamentary writings Contextualise joint and mutual wills Contextualise adiation and repudiation Discuss doctrine of election Contextualise the customary law of succession in terms of testate succession A testator drafts and executes a will to regulate how his or her estate and other affairs should be dealt with after his or her death. As soon as a person dies, his or her will is submitted to the Master of the High Court and is scrutinised for validity. If it is accepted as validly executed, an executor is appointed to handle the liquidation of the estate.‘ A will must therefore comply with a number of general requirements as well as certain formalities stipulated in the Wills Act before it will be accepted as a valid will. The complex system for executing wills that existed in South Africa prior to 1954 was rationalised by the enactment of the Wills Act (effective from 1 January 1954). This Act abolished all Roman-Dutch common law wills and repealed the separate legislation that applied in each of the four provinces. The Wills Act was amended in 1992 and, since then, our law has permitted only one kind of will, often referred to as a statutory will. The will-making formalities are set out in section 2(1)(a) of the Act and apply to all wills executed after 1 January 1954 where the testators died after 1 October 1992. These formalities apply only to documents that are wills. Any will that was properly executed at the time it was made in terms of the common law or pre-1953 legislation remains valid until revoked by the testator. © STADIO (Pty) Ltd Law of Succession LOS201/262 23 3.2 Wills, Codicils and Testamentary Writings 3.2.1 Definition of a Will The Wills Act defines a will as follows: “will” includes a codicil and any other testamentary writing. The purpose of this definition is solely to indicate which types of documents are relevant to the Act and especially which types have to conform to the formalities as stipulated by section 2(1)5 of the Act. The Act's definition therefore does not indicate the essence of a will. A will must be freely made with the intention of providing for the devolution of the testator's estate. The basic prerequisites for the validity of any testamentary are: 1. the testator must have the free and serious intention to execute a will (he or she must have animus testandi) 2. the testator must have made the declaration voluntarily. Additional requirements for a valid will are prescribed in the Wills Act, namely: 1. the testator must have testamentary capacity 2. the will must comply with the formalities prescribed by section 2 of the Wills Act. Activity 3.1 Several writers have provided their own definitions of a 'will'. Describe these definitions. 3.2.2 Basic Requirements for a Valid Will Activity 3.2 Explain the basic requirements for a valid will. 3.2.3 Definition of a Codicil and a Testamentary Writing The definition of the term ‘will’ contained in the Wills Act does not attempt to be comprehensive, but merely clarifies that a codicil and a testamentary writing also qualify as wills. The Act thus equates these three kinds of documents, but does not say if there are any differences between them or if they are all the same. © STADIO (Pty) Ltd Law of Succession LOS201/262 24 In Roman and Roman-Dutch law a difference existed between a will and a codicil, especially with regard to the formalities. This differentiation has been eradicated in modern law. Although the term ‘codicil’ is often used to refer to an addendum to an existing will, a codicil is a separate will that has to comply with the same formalities as a will. Another term that is used by the Wills Act is ‘testamentary writing’. The Act refers to this term in order to indicate which documents have to conform to the formalities required by section 2 of the Act. Although the Act does not define the meaning of testamentary writing, the Court decided that it means a document which describes any one of the three necessary elements of a bequest, namely: 1. the identity of the property bequeathed 2. the extent of the interest bequeathed, for 3. the identity of the beneficiary. A document which identifies any one of these three elements is consequently a testamentary writing which has to comply with the requirements of the Wills Act. Another issue concerns the question whether a trust deed must comply with the formalities of a will where the identity of a beneficiary is to be found in the trust deed of an inter vivos trust, which comes into being during the testator’s lifetime, if the testator bequeaths further assets to the trust in his or her will, which takes effect on the death of the testator. Simply stated, an inter vivos trust is created in the following way – the trust founder enters into an agreement with another person (the trustee) in which the founder undertakes to donate certain assets to the trustee on condition that the trustee uses the assets for the benefit of a third person (the trust beneficiary), and the trustee undertakes to receive and hold the assets on this basis. The setting up of an inter vivos trust is not done in compliance with the will-making formalities because the inter vivos trust deed is a contract, not a will. 3.3 Joint and Mutual Wills A mutual will is always a joint will, but a joint will is not necessarily a mutual will. Joint wills are especially popular among couples married in community of property, but may be made by anyone. A joint or mutual will need only be executed once. In other words, only the multiple testators and two witnesses need sign the document. © STADIO (Pty) Ltd Law of Succession LOS201/262 25 Such a document is, however, seen as the separate will of each of the testators, and each testator may unilaterally revoke or amend the will with regard to his or her dispositions and may even do so without the knowledge of the other testator or testators. The will may also be invalid with regard to one testator, but valid with regard to the other. 3.4 Adiation and Repudiation Activity 3.3 Explain the terms adiation and repudiation. 3.5 Doctrine of Election The doctrine of election is applicable in all cases where acceptance of a benefit from a will at the same time holds some kind of burden or obligation (such as a modus or a condition) for the beneficiary. In other words, a beneficiary has to elect or choose to accept a benefit which imposes a burden. The beneficiary may accept the benefit (adiation), but is then obliged to accept the associated responsibility. It is not possible for the beneficiary to adiate partially – the benefit has to be accepted as a whole. It is important to know when the doctrine of election comes into play because in cases where the choice (that is, whether to adiate or to repudiate) has to be exercised in writing, a written adiation or repudiation certificate must be submitted to the Master of the High Court together with the estate account. If a beneficiary elects to repudiate a benefit, he or she will receive nothing. According to Ex parte Estate Van Rensburg, a beneficiary must accept the whole will in as far as it is applicable to him or her. He or she may repudiate any bequest he or she does not like, but then may not receive any benefit under the will. The doctrine of election does not simply mean that a beneficiary has to choose whether he or she wants to inherit a benefit or not. The doctrine only applies if a burden (such as a modus or a condition) has been placed on the beneficiary by the testator. The doctrine of election plays a specific role in estate massing and will be discussed in more detail later. © STADIO (Pty) Ltd Law of Succession LOS201/262 26 3.5.1 Customary Law of Succession As already explained, testamentary succession according to a will is fairly unknown in customary law. A family head may, however, dispose of property during his lifetime and he also has limited powers to give instructions on his deathbed about the distribution of some assets. Nevertheless, this is not the same as freedom of testation as discussed above. In light of new developments in the customary law of intestate succession, the possibility that testators may increasingly use wills to regulate the division of customary law property is not excluded. Testators could easily use the notion of freedom of testation to ensure that property is devolved according to the customary law of succession by stipulating so in a will. However, in such a case, the requirements of the Wills Act and other common law rules have to be complied with to prevent the will being invalid. Summary In this Unit, the following general principles underpinning the law of testate succession have been explained: 1. the definition of a will 2. the basic requirements for the validity of a will (animus testandi and volition) 3. the difference and commonalities between joint and mutual wills 4. the meaning of adiation 5. the meaning of repudiation 6. the meaning and effect of the doctrine of election. When dealing with a will which may have been executed under suspicious circumstances, it is important to investigate whether the testator wanted to execute a will and whether he or she did so freely. Once these requirements have been fulfilled and it has been established that the formalities have been complied with, the executor is appointed and he or she has to deal with the general winding-up of the estate. Adiation and repudiation form the basis of succession as it is important to know whether a beneficiary adiates or repudiates a benefit before the executor can begin with the final liquidation and distribution of an estate. © STADIO (Pty) Ltd Law of Succession LOS201/262 27 A testator living under customary law now also has freedom of testation regarding customary law property. Self-Assessment Questions 3.1 Define and explain the terms will, codicils and testamentary writings. 3.2 Explain joint and mutual wills. 3.3 Define and explain the terms adiation and repudiation. 3.4 Explain the doctrine of election. 3.5 Explain the impact of the customary law of succession on testate succession. © STADIO (Pty) Ltd Law of Succession LOS201/262 28 Topic 4 Testamentary Capacity Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 4) 4.1 Introduction After completing this topic, you should be able to: Conceptualise testamentary capacity Contextualise customary law of succession in terms of testamentary capacity A will is a unilateral legal act and, in principle, all persons who are capable of performing legal acts should be capable of making wills. In South Africa, the age at which a person is able to perform legal acts (legal capacity), such as entering into contracts, is normally 18 years of age. (The required age was 21 years before its amendment by the Children’s Act.) However, the age at which a person has the ability to make a legally valid will (testamentary capacity) is only 16 years of age. Testamentary capacity is governed by the Wills Act. Any document drawn up and executed by a person without testamentary capacity cannot be valid even if it complies with the other formalities required by the Wills Act. Consequently, testamentary capacity is a prerequisite for making a will. 4.2 Testamentary Capacity Activity 4.1 Define and discuss the term 'testamentary capacity'. © STADIO (Pty) Ltd Law of Succession LOS201/262 29 4.2.1 Customary Law of Succession The mere fact that someone lives under a system of customary law does not mean that he or she has no freedom of testation or the capacity to make a will. However, sections 23(1), (2) and (3) of the Black Administration Act used to restrict a black person's freedom of testation regarding customary property by stipulating the following: 1. All movable property belonging to a Black and allotted by him or accruing under Black law or custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom. 2. All land in a tribal settlement held in individual tenure upon quitrent conditions by a Black shall devolve upon his death upon one male person, to be determined in accordance with tables of succession to be prescribed under subsection (10). 3. All other property of whatsoever kind belonging to a Black shall be capable of being devised by will. Accordingly, customary property either had to devolve according to the rules of customary succession if it was movable property obtained in terms of customary law, or in accordance with certain tables of succession prescribed by legislation if it was communal or quitrent land. These stipulations created the interesting situation where a black person had testamentary capacity (he or she could make a will), but no freedom of testation (no freedom to make provisions in a will regarding certain property). Section 23 was declared unconstitutional by the Constitutional Court in Bhe v Magistrate, Khayelitsha and was repealed by the Repeal of the Black Administration Act and Amendment of Certain Laws Act. A black person now has the freedom to bequeath customary property if he or she has the capacity to do so (in other words, if he or she is at least 16 years of age and is not mentally impaired). Summary This Unit looked at testamentary capacity – the minimum age and the mental capacity required to make a valid will (see section 4 of the Wills Act). © STADIO (Pty) Ltd Law of Succession LOS201/262 30 Evidence concerning a testator’s mental capabilities is taken into account when determining the validity of a will. The Master of the High Court will accept that the will received at the Master’s office was executed with the necessary testamentary capacity. The issue of a testator’s testamentary capacity will only arise if someone approaches a court with an application regarding the capacity of the testator to make a will. The Master's office only determines whether the formal requirements for the execution of the will have been met and does not concern itself with the capacity of the testator. It is important to distinguish testamentary capacity from the testator’s free expression of his or her will (volition), as well as from freedom of testation, which will be discussed in Unit 8. Under a system of customary law, people have freedom of testation just like anyone else and also need to comply with the requirements of testamentary capacity. Self-Assessment Questions 4.1 Define and discuss the term testamentary capacity. 4.2 Explain the impact of the customary law of succession on testamentary capacity. © STADIO (Pty) Ltd Law of Succession LOS201/262 31 Topic 5 Formalitites for a Will Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 5) 5.1 Introduction After completing this topic, you should be able to: Conceptualise the formalities in terms of section 2(1)(a) of the Wills Act Conceptualise the formalities for the amendment of wills Explain and apply section 2(3) of the Wills Act Contextualise the customary law of succession in terms of the formalities for a will When a testator signs or executes his or her will, it has to be done in accordance with certain rules set out in the Wills Act. Lawyers refer to these rules as the formalities for the execution of a will. The execution of a will is the process through which the testator and other parties comply with all the formalities required to bring a valid will into existence. A will that is not executed in accordance with the formalities required by the Wills Act is invalid. In other words, it is of no force or effect, and its contents are ignored unless there is a court order that, in terms of section 2(3) of the Act, the will be accepted as if it had been validly executed. In this way, the law attempts to ensure that there is reliable and permanent evidence of the testator's testamentary intentions. Section 2(3) will be discussed later in this chapter, but it is important to note at this stage that it is not always possible to obtain a court order giving effect to a defectively executed will. Furthermore, even when it is possible, the process is time consuming and expensive. For this reason, it is vitally important that testators comply with the formalities in the Act when they execute their wills. Even if a will is formally valid, it is possible that the contents of the will do not comply with the law in some way. © STADIO (Pty) Ltd Law of Succession LOS201/262 32 For example, if a testator bequeathed his or her entire estate to an international terrorist organisation for the purposes of advancing its unlawful aims, the will would be formally valid if it was properly executed. However, its contents would be unlawful and invalid, and would not be implemented. Such a will is said to be substantively invalid. Formal validity and substantive validity are entirely different concepts -formal validity refers to whether or not the will complies with the formalities, while substantive validity refers to whether or not the contents of the will are lawful. This Unit looks only at the formal validity of wills. 5.2 Formalities in Terms of Section 2(1)(a) of the Wills Act The execution formalities required by section 2(1)(a) of the Wills Act may be summarised as follows: 1. The will must be signed at the end thereof by the testator himself or herself, or an amanuensis – someone who signs the will on behalf of the testator. 2. If the will comprises more than one page, every page other than the last must be signed anywhere on the page by the testator or the amanuensis. 3. The signature of the testator or the amanuensis must be made (or acknowledged) in the presence of two or more competent witnesses. 4. Such witnesses must attest and sign the will in the presence of the testator and each other, and (where applicable) of the amanuensis. 5. Where the testator signs with a mark, or an amanuensis signs for the testator, a commissioner of oaths must be present and certification formalities apply. Activity 5.1 Explain the following in terms of the execution formalities required by section 2(1)(a) of the Wills Act: Requirement of a written document Meaning of 'sign' and 'signature', and the concept of a 'mark' Where must the testator sign? Signature by amenuensis Who is required to witness a will? Acknowledging a signature Must the will be dated or have an attestation clause? Additional formalities associated with a mark or an amanuensis © STADIO (Pty) Ltd Law of Succession LOS201/262 33 5.2.1 Formalities for the Amendment of Wills A will once executed is not written in stone. The testator is free to alter his or her will at any stage. Changes to a will can be made by executing a codicil which gives effect to the changes the testator wants to make. It is also possible for the testator to amend an existing will by interfering with the writing of it. It is this method of amendment that is the subject of this section. In terms of the Wills Act, each of the following actions brings about an amendment and requires compliance with the formalities for an amendment described below: 1. additions 2. alterations 3. interlineations (inserting new words between the lines of the will) 4. deletions, cancellations and obliterations in whatever manner effected except where they contemplate the revocation of the entire will. The reference to ‘deletions, cancellations and obliterations in whatever manner effected’ includes acts such as erasing, cutting out, pasting over or removing with something such as correction fluid. The exception relating to a deletion, cancellation or obliteration which contemplates the revocation of the entire will was necessary to preserve the testator's right to revoke his or her will by destroying it in some way without the need to comply with formalities of any kind. The rules governing the amendment of a will are determined by the date on which the will that is being amended was executed. This discussion deals with the amendment of wills executed on or after 1 January 1954 (the commencement date of the Wills Act) where the testator died after 1 October 1992 (the commencement date of the Law of Succession Amendment Act 43 of 1992 which introduced substantial changes). It may be that a testator who is about to execute a will chooses to amend it in some way before signing it, for example by altering some of the words with a pen so as to increase the amount of a legacy or to change the name of a beneficiary. Such an amendment is referred to as a pre-execution amendment and requires no formalities in order to be lawful because the altered wording is already in place when the testator executes the will. Nevertheless, a pre- execution amendment should be signed by the testator and the two witnesses because the Act provides that any amendment to the will shall be rebuttably presumed to have been made after the will was executed. © STADIO (Pty) Ltd Law of Succession LOS201/262 34 In addition, it may not be possible after the death of the testator to establish that the amendment was, in fact, made before execution. Amendments made to a will that has already been executed, called post- execution amendments, are governed by section 2(1)(b) of the Wills Act. Failure to comply with the requirements of this section will mean that the amendment is ineffective. This section requires an amendment of a will to be identified by the signature of the testator and two witnesses. Because the amendment is a new act of testation, the witnesses need not be the same witnesses as were present at the execution of the will that is being amended. The Act does not stipulate how the identification by signature is to take place, but it seems that this can be achieved by placing the signatures of the testator and witnesses close to the amendment. The Wills Act makes provision for the testator to use a mark or an amanuensis to execute the amendment. In such event, a commissioner of oaths must be present when the amendment is executed. In addition, the commissioner of oaths is required to certify that: 1. he or she is satisfied as to the identity of the testator 2. the amendment has been made by or at the request of the testator 3. he or she has functioned in his or her capacity as a commissioner of oaths in so certifying. The commissioner must sign the certificate, but there is no provision for the commissioner of oaths to sign all the other pages of the will. The Act does not stipulate that the amendment be identified by the signature or certificate of the commissioner of oaths, nor where in the will the certificate should be made. It makes sense, however, for the certificate to be made near the amendment since it needs to be clear to which amendment the certificate refers. It also makes sense to include a reference identifying the amendment to which the certificate refers, although this is not expressly required by the Act. Even if there is only one amendment, the possibility cannot be ignored that further amendments may be made which could introduce confusion. There are many ways in which a testator can amend his or her will, including: inserting additional paragraphs into the will writing additional words between the existing lines of the will altering words or numbers in the will drawing lines through words, numbers or whole paragraphs of the will so as to delete them, whether or not new material is inserted in their place. © STADIO (Pty) Ltd Law of Succession LOS201/262 35 5.3 Section 2(3) of the Wills Act Section 2(3) of the Act gives the High Court the power to order the Master to accept a document which does not comply with the execution or amendment formalities as a valid will if it is satisfied that the testator intended the defectively executed document to be his or her will or an amendment to it. This power of the Court is often referred to as the power of condonation and section 2(3) is often called the rescue provision. If the requirements of section 2(3) are satisfied, the Court makes an order directing the Master to accept the will or amendment as if it were validly executed. The provisions of section 2(3) are peremptory. In other words, if the requirements of the section are satisfied by proof on a balance of probabilities, then the Court has no discretion, but must make an order directing the Master to accept the document as a valid will. Activity 5.2 Explain the following in terms of Section 2(3) of the Wills Act: Issues of interpretation The 'executed' requirement of section 2(3) Intention requirement of section 2(3) 5.4 Customary Law of Succession Since the decision of the Constitutional Court in Bhe v Magistrate, Khayelitsha, and the subsequent repeal of section 23 of the Black Administration Act, persons living under a system of customary law are free to execute wills regarding customary property. As a result, the requirements discussed in this chapter will apply to all wills made by such persons. Summary The only way in which a testator can make a valid will is by strictly complying with the detailed requirements of section 2(1) of the Wills Act. © STADIO (Pty) Ltd Law of Succession LOS201262 36 Similar execution requirements apply when the testator amends an existing will by making changes on the will itself. A codicil that amends an existing will must also be made in accordance with the requirements of section 2(1) of the Wills Act. In terms of section 2(3) of the Wills Act, a court may order that a document that has not been executed in strict compliance with the will-making formalities shall nevertheless be treated as if it were a valid will. To obtain such an order, it is essential to prove that the testator intended the document to be his or her will, and that the document was personally drafted by the testator, or personally executed by the testator. Despite the existence of section 2(3), it remains vital for wills to be properly executed in accordance with the requirements of section 2(1) because the lengthy delays and financial expense involved in obtaining a court order that a defective document be treated as a will can be disastrous for the testator’s family. In addition, it may not always be possible to satisfy the requirements for such an order. Self-Assessment Questions 5.1 Explain the formalities in terms of section 2(1)(a) of the Wills Act. 5.2 Explain the formalities for the amendment of wills. 5.3 Explain section 2(3) of the Wills Act. 5.4 Explain the impact of customary law of succession in terms of the formalities for a will. © STADIO (Pty) Ltd Law of Succession LOS201/262 37 Topic 6 Revocation and Revival of Wills Prescribed Reading Before continuing with this topic, please read the following: Jamneck et al. (2012: Chapter 6) 6.1 Introduction After completing this topic, you should be able to: Conceptualise the methods of revoking a will Explain the presumptions concerning the revocation of wills Conceptualise the doctrine of dependent relative revocation Explain the revival of wills Conceptualise the revocation by the court: Section 2A Contextualise the customary law of succession in terms of the revocation and revival of wills A testator is free to revoke his or her will at any time during his or her lifetime? Any agreement that attempts to restrict this freedom is unenforceable? There are only two exceptions: 1. Where a mutual will establishes estate massing, the surviving testator who accepts the benefit of the massing cannot subsequently alter the testamentary disposition of the massed assets stipulated in the mutual will. 2. Testamentary provisions contained in a duly registered antenuptial contract cannot be unilaterally departed from or altered. There are two essential elements for the revocation of a will: 1. an intention to revoke (animus revocandi) 2. a legally recognised act by which this intention is manifested. Revocation takes place only when both essentials are satisfied. If the intention to revoke is present but is not manifested in a legally recognised act of revocation, then it may be possible for the court to order that the will be revoked in terms of section 2A of the Wills Act. © STADIO (Pty) Ltd Law of Succession LOS201/262 38 The revocation of wills is governed by the common law and the provisions of the Wills Act. Revocation of a will that expressly or impliedly revokes an earlier will does not revive the earlier will. In other words, it does not bring the earlier will back into operation. 6.2 Methods of Revoking a Will Activity 6.1 South African common law recognises four methods of revocation, namely: destruction of the whole will destruction of part of a will express revocation (including informal revocation) implied revocation Explain each of these methods of revocation. 6.3 Presumptions Concerning the Revocation of Wills If a will is found in the testator's possession in a damaged state, such as would be sufficient to revoke the will if done with animus revocandi, then it is rebuttably presumed that the damage was done by the testator with such intention and the will is accordingly revoked. If it is shown that the testator’s will was in his or her possession but, after diligent search following his or her death, the will cannot be found, it is rebuttably presumed to have been revoked by the testator. The presumption is actually two-fold: 1. There was an act of destruction. 2. This was done with an intention to revoke (animus revocandi). With respect to a will damaged while in the possession of a third party, such as the testator’s attorney or the trustee department of a bank, it has been held that the presumption that the will was revoked does not apply and it is presumed that the destruction was not done with revocatory intention. It seems likely that the position will be the same if the will went missing while in the possession of a third party since the rationale for the presumption as to missing wills will not be present. © STADIO (Pty) Ltd Law of Succession LOS201/262 39 6.4 Doctrine of Dependent Relative Revocation An essential requirement for a valid revocation is that the testator must have had animus revocandi. Suppose a testator, believing that he or she has just successfully executed a new will, destroys his or her previous will (either physically or symbolically) without realising that the new will does not comply with the formalities for a will and lacks legal efficacy. In this example, the testator's revocatory intention is based on a supposition that proves to be wrong – the new will is not valid. In other words, the intention is defective and the destroyed will is not revoked. This is in terms of the doctrine of dependent relative revocation or, more simply, the principle of conditional revocation. 6.5 Revival of Wills Revival of a will occurs when a previously revoked or lapsed will is given legal force again. The destruction of a will that expressly or impliedly revoked an earlier will does not bring about the revival of the earlier revoked will. For some years, since the decision of the Appellate Division in Moses v Abinader, there was uncertainty over the permitted methods for reviving a revoked will. Clearly, the re-execution of a revoked will, that is, signing the will afresh in the presence of two witnesses in full compliance with the will-making formalities, serves to revive the will. 6.6 Revocation by the Court: Section 2A in section 2(3) the Wills Act makes provision for a court to order that a defectively executed will be treated as if it were a valid will, provided, among other things, that the court is satisfied that the defective will was intended by the testator to be his or her will. Section 2A is a parallel provision that empowers a court to complete a defective attempt by a testator to revoke his or her will. Section 2A reads as follows: If a court is satisfied that a testator has - (a) made a written indication on his will or before his death caused such indication to be made; (b) performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or (c) drafted another document or before his death caused such document to be drafted, © STADIO (Pty) Ltd Law of Succession LOS201/262 40 by which he intended to revoke his will or a part of his will, the court shall declare the will or the part concerned, as the case may be, to be revoked. Once a court is satisfied that the requirements of this section have been satisfied, it is obliged to make an order revoking the will, or part of the will, as the case may be. Because the section is peremptory and involves a court in undoing the testator's (original) wishes, it has been held that courts must adopt a cautious approach in determining that the testator intended to revoke his or her will. It follows from the section that a court can only grant an order in terms of section 2A if there is proof on a balance of probabilities that the testator intended to revoke the will (or a part of the will), and that the testator, or another person acting on the testator's behalf with the testator’s authority, performed one of the actions described in sections 2A(a) – (c) for the purpose of revoking the will. Thes

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