LOS201 Exam Notes PDF

LOS201 EXAM NOTES Chapter 1. Introduction 1 – 10, 19 – 23 (Terminology on pages 10 – 18 Law of Succession in South Africa The Law of Succession governs the transfer of an individual's estate upon their death, ensuring the orderly distribution of assets and the fulfillment of any liabilities. In S...

LOS201 EXAM NOTES Chapter 1. Introduction 1 – 10, 19 – 23 (Terminology on pages 10 – 18 Law of Succession in South Africa The Law of Succession governs the transfer of an individual's estate upon their death, ensuring the orderly distribution of assets and the fulfillment of any liabilities. In South Africa, the law is primarily derived from statutory provisions, common law principles, and customary law. It is crucial for individuals to understand the implications of their wills and the consequences of dying intestate (without a will). 1. Intestate Succession When a person dies intestate, the distribution of their estate is governed by the Intestate Succession Act of 1987. This Act outlines the hierarchy of heirs, starting with the deceased's spouse and children, followed by parents, siblings, and further relatives. The Act aims to reflect the deceased's likely intentions based on family structures commonly found in South African society (Jamneck et al., 2017). 2. Testate Succession In contrast, testate succession involves the distribution of an estate according to a valid will. A will must meet specific legal requirements, such as being in writing, signed by the testator and two witnesses, to be enforceable. Testators have the freedom to distribute their assets as they wish, including appointing an executor to manage the estate and ensuring that their wishes are fulfilled (Rautenbach et al., 2017). 3. The Role of Executors Executors play a critical role in the administration of an estate, whether testate or intestate. They are responsible for gathering the deceased’s assets, paying debts, and distributing the remaining estate to the heirs. Executors must act impartially and in the best interest of the estate, ensuring compliance with relevant laws (Paleker et al., 2017). 4. Limitations and Challenges Despite the clear guidelines provided by the law, challenges may arise, such as disputes among heirs, claims from creditors, or challenges to the validity of a will. These disputes can complicate the administration process, often leading to protracted legal battles. Understanding the relevant legal principles and the importance of proper estate planning can mitigate such challenges (Van der Linde et al., 2017). Conclusion The Law of Succession is essential for ensuring the orderly transfer of assets and responsibilities after death. Whether through intestate or testate succession, it reflects societal values and family dynamics within South Africa. Legal practitioners must guide clients through the complexities of succession planning to ensure that their wishes are honored and legal obligations met. Chapter 2. Intestate Law pages 25 – 45 Intestate Law in South Africa Intestate succession occurs when an individual dies without a valid will. The South African legal framework for intestate succession is primarily governed by the Intestate Succession Act 81 of 1987. This legislation outlines how a deceased person’s estate is distributed among surviving relatives, thereby ensuring that the deceased’s assets are transferred according to a structured hierarchy of beneficiaries. According to the Act, the first category of beneficiaries consists of the deceased’s spouse and children. If the deceased was married and had children, the estate is divided equally among them. In cases where there are no children, the surviving spouse receives the entire estate. If the deceased was not married but had children, the children will inherit the estate in equal shares (Jamneck et al., 2017). The Act also provides for a specific order of succession beyond the immediate family. Should the deceased leave no surviving spouse or children, the estate will pass to the deceased's parents. If both parents are deceased, the estate is distributed among the deceased's siblings. In the absence of siblings, the estate will be divided among more distant relatives, such as grandparents, aunts, and uncles (Rautenbach et al., 2017). It is crucial to note that the Intestate Succession Act takes precedence over customary law in cases where a person died intestate. However, customary law may still influence the distribution of the estate if the deceased had not formally married and their customary marriage was recognized (Paleker et al., 2017). This interaction between statutory and customary law can lead to complexities, particularly in communities that adhere to traditional practices. In addition to the Intestate Succession Act, the Administration of Estates Act 66 of 1965 also plays a significant role in regulating the administration of an intestate estate. This Act outlines the procedures for appointing an executor and managing the estate until the distribution of assets is completed (Van der Linde et al., 2017). Executors are tasked with identifying all assets, settling debts, and ensuring that the distribution occurs according to the provisions of the Intestate Succession Act. Understanding these legal principles is vital for individuals, as it underscores the importance of making a will. A valid will allows for the deceased to express their wishes regarding the distribution of their estate, which can mitigate potential conflicts among heirs and ensure that assets are allocated according to personal preferences rather than statutory provisions. In summary, intestate succession in South Africa is governed by the Intestate Succession Act, which provides a structured framework for distributing a deceased's estate among relatives. Knowledge of this legislation is essential, as it not only affects how assets are divided but also emphasizes the importance of estate planning. Chapter 3. Testate succession: general rules pages 46 – 58 Testate Succession: General Rules Introduction Testate succession refers to the process of distributing a deceased person's estate according to their valid will. This legal framework is crucial in ensuring that the deceased's wishes are respected, and it operates under specific legislative provisions and principles. Understanding these rules is essential for effective estate planning and administration. Legislative Framework In South Africa, the law governing testate succession is primarily found in the Wills Act 7 of 1953 and the Administration of Estates Act 66 of 1965. These acts provide the necessary guidelines for the creation, validity, and execution of wills, as well as the management of the deceased's estate. General Rules of Testate Succession 1. Creation of a Valid Will To ensure a will's validity, it must meet several requirements as stipulated by the Wills Act. These include the following:  ⮚ Age and Capacity: The testator must be at least 16 years old and possess the mental capacity to understand the nature and consequences of making a will (Jamneck et al., 2017). ⮚ Formalities: The will must be in writing, signed by the testator, and witnessed by at least two competent witnesses who are not beneficiaries (Rautenbach et al., 2017). If these formalities are not observed, the will may be deemed invalid. 2. Intention to Create a Will The testator must have a clear intention to create a will. This intention must be unequivocally demonstrated within the document itself, indicating that the testator's wishes are to be followed upon their death (Paleker et al., 2017). 3. Revocation of Previous Wills A subsequent will automatically revokes any previous wills unless explicitly stated otherwise. The testator can also revoke a will by destroying it or making a formal declaration of revocation (Van der Linde et al., 2017). 4. Freedom of Testation In South Africa, individuals generally have the freedom to bequeath their estate as they see fit. However, this freedom is subject to certain limitations, particularly in cases involving maintenance claims from dependents (Wood-Bodley et al., 2017). The law recognizes the rights of spouses and children, who may claim a portion of the estate if adequately provided for. 5. Distribution of the Estate Upon the testator's death, the estate is administered according to the provisions laid out in the will. The appointed executor is responsible for ensuring the will's execution, paying debts, and distributing assets to beneficiaries. The executor must act in accordance with the law and the instructions provided in the will (Jamneck et al., 2017). 6. Restrictions on Bequests Certain restrictions apply to the distribution of assets through a will. For example, specific property may not be freely bequeathed if it is subject to a right of retention or other legal obligations (Rautenbach et al., 2017).  7. Contesting a Will Interested parties may contest a will if they believe it is invalid or if the testator lacked the capacity to make it. Grounds for contestation include undue influence, fraud, or failure to comply with statutory requirements (Paleker et al., 2017). Conclusion Understanding the rules of testate succession is essential for effective estate planning and administration. The framework established by the Wills Act and the Administration of Estates Act ensures that a deceased person's wishes are honored while balancing the rights of dependents and creditors. By adhering to these guidelines, individuals can ensure that their estate is managed according to their intentions, providing clarity and direction during a difficult time for their loved ones. Chapter 4. Testamentary Capacity pages 59 – 64 Testamentary Capacity Testamentary capacity refers to the legal ability of an individual to create a valid will. It is crucial that the testator (the person making the will) possesses the necessary mental ability at the time of executing the will. In South Africa, testamentary capacity is primarily governed by common law, which requires that the testator must understand the nature of the act they are performing, the extent of their property, and the identity of the beneficiaries (Jamneck et al., 2017). To establish testamentary capacity, the testator must meet certain criteria. Firstly, they must have reached the age of majority, which in South Africa is 18 years. Secondly, the individual must be of sound mind, meaning they are able to comprehend the consequences of their actions and make rational decisions regarding the distribution of their assets (Rautenbach et al., 2017). This mental competence is assessed at the time of executing the will; any mental incapacity prior or subsequent to this moment does not invalidate the will, provided that the individual was competent at the time of signing. Moreover, certain conditions or mental states, such as being under the influence of drugs or alcohol, can affect testamentary capacity. If a testator is unable to grasp the essential components of their will due to such factors, the validity of the will may be challenged. It is essential for legal practitioners to ensure that their clients possess testamentary capacity to avoid future disputes regarding the will (Paleker et al., 2017). In cases where a testator suffers from a mental disorder or cognitive impairment, the law recognizes a spectrum of capacity. For instance, if the impairment is not total, the testator may still have the capacity to make a will if they can demonstrate understanding of the will's implications. Courts often rely on medical evidence and the circumstances surrounding the execution of the will to determine capacity (Van der Linde et al., 2017). In conclusion, testamentary capacity is a fundamental aspect of will-making in South Africa. Legal practitioners must thoroughly assess their clients' mental state and understanding of the will-making process to ensure the validity of the testamentary document. The law’s protection against undue influence and incapacity aims to uphold the autonomy and intentions of individuals concerning their estates. Chapter 5. Formalities of a will pages 65 – 87 Formalities of a Will in South Africa In South Africa, the validity of a will is governed by the Wills Act 7 of 1953, which establishes specific formalities that must be adhered to for a will to be legally binding. These formalities aim to ensure that the testator's (the person making the will) intentions are clear and that the will is not the product of coercion, fraud, or misunderstanding. 1. Requirements for a Valid Will According to the Wills Act, a will must meet the following criteria:  Written Form: The will must be in writing. This can be either handwritten or typed (Wills Act, 1953, Section 2(1)). Oral wills are generally not recognized, except in specific, limited circumstances outlined in the Act. Signature: The will must be signed by the testator at the end of the document. This signature signifies the testator's approval of the contents of the will (Wills Act, 1953, Section 2(1)(a)). Witnesses: The will must be signed in the presence of at least two witnesses who must also sign the will in the presence of the testator. The witnesses should be individuals who are not beneficiaries under the will to avoid any conflicts of interest (Wills Act, 1953, Section 2(1)(b)). Capacity: The testator must have the legal capacity to make a will, which includes being at least 16 years old and mentally competent. This is essential to ensure that the testator understands the implications of their decisions (Jamneck et al., 2017). 2. Legislation and Case Law The Wills Act provides the framework for will execution, but several key cases have further clarified the formalities required. For instance, in S v. Gqiba 1999 (1) SA 1094 (SCA), the Supreme Court of Appeal highlighted the necessity of strict adherence to the formalities stipulated in the Wills Act, reaffirming that failure to comply can render a will invalid. Another important case is Harris v. Duna 2012 (5) SA 454 (SCA), where the court emphasized the requirement of the presence of witnesses at the signing of the will. The court ruled that even if the testator's intentions were clear, the lack of proper witnessing could invalidate the will. 3. Special Circumstances In certain cases, the Wills Act accommodates special circumstances where strict compliance with the formalities may not be feasible. For example, Section 2(3) of the Wills Act allows for a will to be validly executed without witnesses in cases where the testator is in imminent peril of death. Such provisions are aimed at ensuring that the wishes of individuals in exceptional situations are respected, albeit with an added layer of scrutiny. 4. Revocation and Alteration of Wills The Wills Act also addresses the revocation of wills. A will can be revoked by a subsequent will, a written declaration, or by the destruction of the will by the testator with the intention to revoke it (Wills Act, 1953, Section 4). Courts have interpreted these provisions to ensure that a testator's last wishes are honored, even in the absence of strict compliance with formalities, provided there is clear evidence of intent (Rautenbach et al., 2017). Conclusion In summary, the formalities of a will in South Africa are crucial to ensure that a testator’s intentions are clearly articulated and respected. The Wills Act outlines specific requirements for validity, including the necessity for written form, signature, and witnessing, while case law reinforces these principles. By adhering to these formalities, individuals can ensure their final wishes are fulfilled, preventing potential disputes and legal complications for their heirs. Chapter 6. Revocation and Revival of wills Revocation and Revival of Wills Introduction The revocation and revival of wills are fundamental concepts in the field of succession law, specifically regarding how a testator’s intentions regarding their estate can be altered or reinstated. In South Africa, the law governing the revocation and revival of wills is primarily derived from the common law principles that are codified in various statutes, including the Wills Act 7 of 1953. Understanding these principles is crucial for legal practitioners and individuals involved in estate planning, as they dictate the validity and enforceability of wills. Revocation of Wills Revocation refers to the legal process by which a testator nullifies a previously executed will, thereby rendering it ineffective. In South African law, a will can be revoked in several ways: 1. Explicit Revocation: A testator may revoke a will expressly by creating a new will that explicitly states the intention to revoke the previous will. According to Section 2(1) of the Wills Act, if a subsequent will is made, it will automatically revoke any prior wills that are inconsistent with its provisions (Jamneck et al., 2017). 2. Destruction of the Will: The physical destruction of a will by the testator also constitutes a revocation. The act of tearing, burning, or otherwise obliterating the document, with the intention to revoke it, serves to invalidate the will. It is essential that this act is performed by the testator or at their direction, demonstrating the necessary intent to revoke (Rautenbach et al., 2017). 3. Marriage: In South Africa, the marriage of a testator generally leads to the automatic revocation of a will unless the will was executed in contemplation of that marriage. This provision ensures that the estate is managed in accordance with the testator's updated familial circumstances (Paleker et al., 2017). 4. Inconsistency: A will may also be revoked if it is inconsistent with the provisions of a later document that serves as a will or codicil. If the terms of the new document conflict with the previous will, the latter is effectively revoked. 5. Order of the Court: A court can also revoke a will if it is established that the testator lacked the requisite capacity to make a will at the time of its execution, or if the will was executed under undue influence or fraud (Wood-Bodley et al., 2017). It is important to note that the intention behind the revocation must be clear, as courts will assess the actions of the testator to determine if the revocation was intended. Revival of Wills The revival of a will refers to the process by which a previously revoked will is reinstated and becomes effective once more. The law regarding revival can be complex, as South African legislation does not explicitly address the revival of revoked wills. However, the following principles are generally accepted: 1. Re-execution: A revoked will may be revived by re-executing it with the required formalities of a valid will, such as being signed by the testator in the presence of witnesses. This is the most straightforward method of reviving a will (Jamneck et al., 2017). 2. Intention to Revive: If a testator expresses a clear intention to revive a previously revoked will, this can lead to its revival, provided that the will is still in existence. Such intention can be demonstrated through written declarations or other testamentary documents (Rautenbach et al., 2017). 3. No Subsequent Will: The absence of any subsequent will after a revocation can also suggest an intention to revive the previous will. If the testator revokes a will and then does not execute another will, it may be inferred that the original will is intended to be revived (Paleker et al., 2017). 4. Presumption of Revival: There exists a presumption that a testator intends to revive a will when they take actions that suggest they still wish for the provisions of the earlier will to apply. For example, if a testator creates a new will that refers to the earlier will or expresses intentions consistent with the earlier will, this can support a claim for revival. Conclusion Understanding the concepts of revocation and revival of wills is essential for the effective management of an estate and ensuring that the testator's intentions are honored. The legal principles outlined above provide a framework for determining when a will may be revoked or revived, focusing on the testator's intentions and actions. As such, practitioners must be aware of these principles to guide clients effectively in their estate planning endeavors. Terminologies a. Absolute bequest An absolute bequest is a bequest which does not contain any conditions. It. is the simplest way of making a bequest and the effect of such a bequest is that vesting. normally takes place on the testator's death. b. Accrual or the right to accrual Accrual is a way to ensure that both spouses in a marriage gain a fair share of the estate once the marriage ends. The accrual system applies automatically to all marriages out of community of property. For the accrual system to apply, the Ante-nuptial Contract must be drafted in a certain way. c. Adiation Adiation is the act of accepting an inheritance, or benefit, that is specified in a will, opposite of repudiation d. Amanuensis a literary or artistic assistant, in particular one who takes dictation or copies manuscripts. e. Animus testandi is a legal term that means the intent to create a will or testament. It's a required intention for a valid will, and it turns the act of creating the will into an act of testation. The testator doesn't need to be aware that they're making a will, or intend to make one f. Animus testandi is a legal term that means the intent to create a will or testament. It's a required intention for a valid will, and it turns the act of creating  the will into an act of testation. The testator doesn't need to be aware that they're making a will, or intend to make one g. Bequest is the act of giving property by will h. Animus testandi is a legal term that means the intent to create a will or testament. It's a required intention for a valid will, and it turns the act of creating the will into an act of testation. The testator doesn't need to be aware that they're making a will, or intend to make one i. Animus testandi is a legal term that means the intent to create a will or testament. It's a required intention for a valid will, and it turns the act of creating the will into an act of testation. The testator doesn't need to be aware that they're making a will, or intend to make one j. A Curator Bonis is a person appointed by a Court to manage the finances, property, or estate of another person who cannot do so because of mental or physical incapacity. A Curator Bonis is also used to protect the interest of minor children in marital disputes. k. dies venit” literally means “the moment has come”. This occurs at the time when the beneficiary becomes entitled in law to demand delivery of the vested right to him/her l. dies cedit” literally means “the day has come” and occurs the moment the right is deemed to have vested in its beneficiary m. Massing is when two (or in some cases more) testators, combine their estates (or a portion of their estates) and bequeath the massed estate to an heir or heirs. n. A fideicommissum is a legal arrangement that involves a bequest of property to one person with the condition that the property is later transferred to another person o. A legacy is a specific item or amount of money that a testator leaves to a legatee in a will. A legatee is the person who receives the legacy. p. Male primogeniture is a system of inheritance that gives the firstborn legitimate male child the right to inherit their parent's estate q. A modus is defined as a qualification or obligation added to a gift or testamentary disposition whereby the person benefited is required to devote the property he receives, or the value thereof, in whole or in part to a specific purpose r. A mutual will is one that covers a married or legally bound couple rather than a single individual. In a mutual will, the terms remain binding for the remaining party after the first partner dies. s. Rectification of a will is a process that can be used to correct a discrepancy between the testator's true intentions and the will's expression of those intentions. This can happen when an error occurs during the will-making process. t. term "residue" refers to a leftover part or remnant, while "residuary estate" refers to the remaining assets of a deceased person after debts, expenses, and taxes have been paid u. Revocation is cancelling a document before it has come into legal effect or been acted upon, as revoking a will  v. Per stirpes is a Latin phrase that means “by roots” or “by branch.” This phrase often appears in the context of wills and retirement accounts to define how your assets should be passed down in the event a beneficiary passes away before you do w. Testamentary capacity is the legal term for a person's mental and legal ability to create or change a valid will. It's also known as sound mind and memory or disposing mind and memory Cases to know Bhe v Magistrate Khayelitsha Daniels v Campbell Hassam v Jacobs Gory v Kolver Casey v the Master Kidwell v the Master Estate Orpen v Estate Atkinson Ex parte Graham Bekker v Naude MacDonald v The Master Blom v Brown act of entering upon an inheritanceReferences 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.