Law of Succession in South Africa PDF

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The Law of Succession in South Africa Print ISBN: 978-0-190428-16-7 ePUB ISBN: 978-0-190432-63-8 Typeset in Utopia Std Regular 9.5pt on 12pt Acknowledgements Publisher: Penny Lane Development editor: Melissa De Grill Project manager: Lindsay-Jane Lücks Copy editor: Allison Lamb Proofreader: Language Mechanics Indexer: Language Mechanics Typesetter: Barbara Hirsch Cover designer: Judith Cross Designer: Oswald Kurten The authors and publisher gratefully acknowledge permission to reproduce copyright material in this book. Every effort has been made to trace copyright holders, but if any copyright infringements have been made, the publisher would be grateful for information that would enable any omissions or errors to be corrected in subsequent impressions. Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. Permissions and acknowledgements The Corbett et al quote on page 233 is reproduced by permission of RELX (UK) trading as LexisNexisHalsbury’s Statutes of England and Wales, 3rd ed volume 50 (1998) sv ‘Wills’ para 482. Contents in brief CHAPTER 1 INTRODUCTION CHAPTER 2 INTESTATE SUCCESSION CHAPTER 3 TESTATE SUCCESSION: GENERAL RULES CHAPTER 4 TESTAMENTARY CAPACITY CHAPTER 5 FORMALITIES FOR A WILL CHAPTER 6 REVOCATION AND REVIVAL OF WILLS CHAPTER 7 CAPACITY TO INHERIT CHAPTER 8 FREEDOM OF TESTATION CHAPTER 9 CONTENT OF WILLS: ABSOLUTE BEQUESTS, CONDITIONS, THE MODUS AND ESTATE MASSING CHAPTER 10 CONTENT OF WILLS: SUBSTITUTION, USUFRUCT AND ACCRUAL CHAPTER 11 CONTENT OF WILLS: TRUSTS CHAPTER 12 COLLATION CHAPTER 13 INTERPRETATION OF WILLS CHAPTER 14 SUCCESSION BY CONTRACT (PACTUM SUCCESSORIUM) CHAPTER 15 CUSTOMARY LAW AND THE REFORM OF CUSTOMARY LAW OF SUCCESSION ACT CHAPTER 16 ADMINISTRATION OF ESTATES Contents List of authors Preface Acknowledgements About the book Basic skills and problem-solving techniques in the law of succession CHAPTER 1 INTRODUCTION (CHRISTA RAUTENBACH) 1.1 General background to the law of succession 1.2 Law of succession in the legal system 1.3 Dual character of the law of succession 1.4 Choice of law rules 1.4.1 The problem of conflicting rights and obligations 1.4.2 Testate law of succession 1.4.3 Intestate law of succession 1.4.4 Administration of estates 1.5 Succession terminology 1.6 Ground rules of succession 1.6.1 Person must have died 1.6.2 Transfer of rights and/or duties with regard to assets and/or the status of the deceased 1.6.3 Beneficiary should at the time of dies cedit be alive or have been conceived 1.6.4 Beneficiary must be competent to inherit CHAPTER 2 INTESTATE SUCCESSION (MOHAMED PALEKER) 2.1 Introduction 2.2 Basic concepts 2.3 When does a person die intestate? 2.4 Vesting of an intestate inheritance 2.5 Capacity to inherit intestate 2.5.1 Only natural persons may inherit 2.5.2 Extramarital, adulterine and incestuous children 2.5.3 Children born as a result of artificial fertilisation 2.5.4 Children born as a result of surrogacy arrangements 2.5.5 Adopted children 2.5.6 Unborn children 2.6 Constitutional challenges 2.6.1 Bhe v Magistrate, Khayelitsha; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa (hereafter Bhe v Magistrate, Khayelitsha) 2.6.2 Daniels v Campbell, Hassam v Jacobs and Govender v Ragavayah 2.6.3 Gory v Kolver 2.7 Applicable intestate succession laws 2.8 The order of succession under the Intestate Succession Act read with the RCLSA 2.8.1 Rule 1 (S 1(1)(a)): deceased is survived by spouse(s), but by no descendants 2.8.2 Rule 2 (S 1(1)(b)): deceased is not survived by a spouse, but is survived by descendants 2.8.3 Rule 3 (S 1(1)(c)): deceased is survived by spouse(s) and descendants Scenario 1 Where the deceased is survived by one spouse Scenario 2 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 2.8.5 Rule 5 (S 1(1)(d)(ii)): deceased is survived by one parent and the descendants of the other parent 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 2.8.7 Rule 7 (S 1(1)(e)(ii)): deceased is survived by descendants of one parent only 2.8.8 Rule 8 (S 1(1)(f)): the deceased is survived by further relations 2.9 Disqualification and repudiation 2.10 Customary law of succession CHAPTER 3 TESTATE SUCCESSION: GENERAL RULES (J UANITA JAMNECK) 3.1 Introduction 3.2 Wills, codicils and testamentary writings 3.2.1 Definition of a will 3.2.2 Basic requirements for a valid will 3.2.2.1 Animus testandi 3.2.2.2Volition (or choice) 3.2.3 Definition of a codicil and a testamentary writing 3.3 Joint and mutual wills 3.4 Adiation and repudiation 3.5 Doctrine of election 3.6 Customary law of succession CHAPTER 4 TESTAMENTARY CAPACITY (JUANITA JAMNECK) 4.1 Introduction 4.2 Testamentary capacity 4.2.1 What is testamentary capacity? 4.2.2 Prescribed age 4.2.3 Mental capabilities 4.2.4 Animus testandi, volition, testamentary capacity and freedom of testation 4.3 Customary law of succession CHAPTER 5 FORMALITIES FOR A WILL (MICHAEL WOOD-BODLEY) 5.1 Introduction 5.2 Formalities in terms of section 2(1)(a) of the Wills Act 5.2.1 Requirement of a written document 5.2.2 Meaning of ‘sign’ and ‘signature’, and the concept of a ‘mark’ 5.2.3 Where must the testator sign? 5.2.4 Signature by an amanuensis 5.2.5 Who is required to witness a will? 5.2.6 The meaning of witnessing 5.2.7 Acknowledging a signature 5.2.8 Must a will be dated or have an attestation clause? 5.2.9 Additional formalities associated with a mark or an amanuensis 5.3 Formalities for the amendment of wills 5.4 Section 2(3) of the Wills Act 5.4.1 Issues of interpretation 5.4.1.1 Degree of compliance 5.4.1.2 Unsigned documents 5.4.2 The ‘executed’ requirement of section 2(3) 5.4.3 Intention requirement of section 2(3) 5.5 Customary law of succession CHAPTER 6 REVOCATION AND REVIVAL OF WILLS (MICHAEL WOOD- BODLEY) 6.1 Introduction 6.2 Methods of revoking a will 6.2.1 Destruction of the whole will 6.2.2 Destruction of part of a will 6.2.3 Express revocation (including informal revocation) 6.2.4 Implied revocation 6.2.4.1 Execution of a later conflicting will 6.2.4.2 Ademption 6.3 Presumptions concerning the revocation of wills 6.4 Doctrine of dependent relative revocation 6.5 Revival of wills 6.6 Revocation by the court: section 2A 6.7 Customary law of succession CHAPTER 7 CAPACITY TO INHERIT (MOHAMED PALEKER) 7.1 Introduction 7.2 Persons capable of inheriting: natural persons 7.2.1 Major beneficiary of sound mind with legal standing 7.2.2 Minor beneficiary 7.2.3 Nasciturus (or unborn) 7.2.4 Illegitimate children 7.2.5 Persons of unsound mind 7.2.6 Insolvents 7.3 Persons capable of inheriting: juristic persons 7.4 Persons disqualified from inheriting 7.4.1 Beneficiary who caused the death of the deceased or the coniunctissimi of the deceased 7.4.1.1 Onus and evidence 7.4.1.2 Tricky questions relating to causation 7.4.1.3 Extension of the bloedige hand maxim 7.4.2 Indignus (unworthy person) 7.4.3 Persons involved in the execution process 7.4.4 Consequences of disqualification 7.5 Customary law of succession CHAPTER 8 FREEDOM OF TESTATION (JUANITA JAMNECK) 8.1 Introduction 8.2 Limitations on freedom of testation 8.2.1 Statutory limitations 8.2.2 Common law limitations 8.2.2.1 Conditions that interfere with a beneficiary's marital relationship 8.2.2.2 Conditions limiting a beneficiary's freedom of movement 8.2.3 Constitutional limitations 8.2.4 Indirect limitations 8.2.4.1 Maintenance of children 8.2.4.2 Maintenance of the surviving spouse 8.2.4.2.1 The meaning of ‘spouse’ 8.2.4.2.2 The RCLSA and the meaning of ‘spouse’ 8.2.4.2.3 The Civil Union Act and the meaning of ‘spouse’ 8.3 Power of appointment 8.4 Customary law of succession CHAPTER 9 CONTENT OF WILLS: ABSOLUTE BEQUESTS, CONDITIONS, THE MODUS AND ESTATE MASSING (JUANITA JAMNECK) 9.1 Introduction 9.2 Vesting of rights 9.3 Bequests 9.3.1 Absolute bequests 9.3.1.1 When does a legacy lapse? 9.3.1.2 Time clauses 9.3.2 Conditional bequests 9.3.2.1 Resolutive (or terminative) conditions 9.3.2.2 Suspensive conditions 9.4 Nudum praeceptum 9.5 Modus or obligation 9.5.1 Types of modus 9.5.2 Difference between a modus and a condition 9.6 Estate massing 9.6.1 How can estate massing be effected? 9.6.2 Section 37 of the Administration of Estates Act 9.6.3 Consequences of estate massing 9.6.3.1 Consequences of adiation 9.6.3.2 Consequences of repudiation 9.7 Customary law of succession CHAPTER 10 CONTENT OF WILLS: SUBSTITUTION, USUFRUCT AND ACCRUAL (ANTON VAN DER LINDE) 10.1 Introduction 10.2 Substitution 10.3 Direct substitution 10.3.1 Express direct substitution by the testator 10.3.2 Direct substitution implied by law (ex lege): Section 2C 10.4 Fideicommissary substitution (fideicommissum) 10.4.1 Various forms of the fideicommissum 10.4.1.1 Fideicommissum expressly created 10.4.1.1.1 Conditional fideicommissum 10.4.1.1.2 Special power of appointment 10.4.1.1.3 Fideicommissum residui 10.4.1.2 Fideicommissum created impliedly 10.4.1.2.1 Si sine liberis decesserit clause 10.4.1.2.2 Other forms 10.5 Statutory restriction on the fideicommissum 10.6 Legal position of the parties to a fideicommissum 10.7 Presumption against a fideicommissum 10.8 Usufruct 10.8.1 Influence on dies cedit and dies venit 10.8.2 Difference between usufruct and fideicommissum 10.9 Common law accrual 10.9.1 What is the intention of the testator? 10.9.2 Where the testator's intention is not clear 10.10 Customary law of succession CHAPTER 11 CONTENT OF WILLS: TRUSTS (ANTON VAN DER LINDE) 11.1 Introduction 11.2 Brief historical perspective 11.3 Defining a trust 11.4 Legal nature of the testamentary trust 11.5 Requirements (or essentialia) for the creation of a valid trust 11.5.1 Intention to create a trust 11.5.2 Create a binding obligation 11.5.3 Testamentary formalities 11.5.4 Determined or determinable trust property 11.5.5 Clear trust object 11.5.6 Lawful trust object 11.6 Core elements of a trust 11.7 Trustees 11.7.1 Appointment and authorisation 11.7.2 Duties of a trustee 11.7.3 Breach of fiduciary duty 11.7.4 Powers of a trustee 11.7.5 Termination of trusteeship 11.8 Beneficiaries 11.8.1 Nomination and qualifications 11.8.2 Rights of beneficiaries 11.8.2.1 Income beneficiary 11.8.2.1.1 Non-discretionary trusts 11.8.2.1.2 Discretionary trusts 11.8.2.2 Capital beneficiaries 11.8.2.2.1 Bewind trusts 11.8.2.2.2 Ownership trusts 11.9 Amendment of trust provisions 11.9.1 Common law 11.9.2 Section 13 of the Trust Property Control Act 11.9.3 Validity of power to amend given to a trustee 11.10 Termination of a trust 11.11 Customary law of succession CHAPTER 12 COLLATION (MICHAEL WOOD-BODLEY) 12.1 Introduction 12.2 Who participates in collation? 12.3 What benefits are collatable? 12.4 Valuation of collatable benefits 12.5 Customary law of succession CHAPTER 13 INTERPRETATION OF WILLS (MOHAMED PALEKER) 13.1 Introduction 13.2 Golden rule of interpretation: ‘to ascertain the wishes of the testator from the language used’ 13.3 Statutory rules of interpretation 13.3.1 Section 2B: ex-spouses 13.3.2 Section 2D(1): ‘child’ or ‘children’ 13.4 Common law rules of interpretation 13.4.1 Ordinary and plain meaning 13.4.2 Construction of the will as a whole 13.4.3 Armchair and extrinsic evidence 13.4.4 Implied provisions 13.4.5 Legal presumptions 13.4.5.1 Writing or typing prevails over standard form wills 13.4.5.2 Presumption against intestacy 13.4.5.3 Ambulatory nature of a will 13.4.5.4 Immediate vesting, acceleration of benefits, finality of institution, maximum benefit and minimum burden 13.4.5.5 Presumption against disinherison and inequality 13.5 Variation of wills 13.6 Rectification of wills 13.7 Customary law of succession CHAPTER 14 SUCCESSION BY CONTRACT (pactum successorium) (CHRISTA RAUTENBACH) 14.1 Introduction 14.2 Origin of the prohibition of the pactum successorium 14.3 What is the pactum successorium used for? 14.3.1 Identifying the pactum successorium 14.3.1.1 Absence of a counterperformance 14.3.1.2 Revocability test 14.3.1.3 Restriction of freedom of testation 14.3.1.4 Vesting test 14.3.1.5 Intention test 14.3.2 Valid forms of the pactum successorium 14.3.2.1 Donatio mortis causa 14.3.2.2 Antenuptial contract 14.4 Customary law of succession CHAPTER 15 CUSTOMARY LAW AND THE REFORM OF CUSTOMARY LAW OF SUCCESSION ACT (CHRISTA RAUTENBACH) 15.1 Introduction 15.2 Content of the RCLSA 15.2.1 Definitions 15.2.2 Interpretation 15.2.3 Freedom of testation 15.2.4 Disputes 15.2.5 Traditional leaders 15.2.6 Property rights 15.3 Order of succession in customary law estates 15.3.1 Introduction 15.3.2 General principles 15.3.3 Succession in monogamous households 15.3.4 Succession in polygynous households 15.3.5 Practical applications of the customary succession rules CHAPTER 16 ADMINISTRATION OF ESTATES (CHRISTA RAUTENBACH) 16.1 Introduction 16.2 Legal reform of the administration of intestate estates of black persons 16.2.1 Black persons who died before 6 December 2000 16.2.2 Black persons who died between 6 December 2000 and 15 October 2004 16.2.3 Black persons who died on or after 15 October 2004 16.3 Uniform rules for the administration of deceased estates 16.3.1 Basic concepts of administration of estates 16.3.1.1 Estate 16.3.1.2 Executor 16.3.1.3 Master 16.3.2 The administration process 16.3.2.1 Phase 1 16.3.2.2 Phase 2 16.3.2.2.1 Awarding and handing over of specific assets 16.3.2.2.2 Partial sale 16.3.2.2.3 Total sale 16.3.2.2.4 Taking over by surviving spouse 16.3.2.2.5 Redistribution agreement 16.3.2.3 Phase 3 16.3.3 Liquidation and distribution account 16.3.3.1 Heading 16.3.3.2 Money column 16.3.3.3 Liquidation account 16.3.3.4 Recapitulation statement 16.3.3.5 Distribution account 16.3.3.6 Income and expenditure account 16.3.3.7 Fiduciary assets account 16.3.3.8 Estate duty addendum 16.3.3.9 Certificate 16.3.3.10 Example of a simple liquidation and distribution account Appendix A Appendix B Appendix C Bibliography Table of cases Table of legislation Index List of authors Juanita Jamneck (Editor) BLC LLB LLD (University of Pretoria) Juanita Jamneck is a Professor in the Department of Private Law at the University of South Africa where she teaches the law of succession. She also teaches the Certificate Course in Deceased Estates Practice for the Law Society of South Africa (Legal Education and Development). Christa Rautenbach (Editor) BIuris LLB LLM LLD (Potchefstroom University for Christian Higher Education, now the North-West University (Potchefstroom Campus)) Christa Rautenbach is a Professor in the Faculty of Law at the North-West University where she teaches the law of succession and legal pluralism, as well as postgraduate courses in the law of succession and child law. She is a co-editor of the Potchefstroom Electronic Law Journal. She is also an Advocate of the High Court of South Africa and an alumnus of the Alexander von Humboldt Foundation. Mohamed Paleker BA LLB LLM (University of Cape Town) Mohamed is a recipient of the Distinguished Teacher's Award from the University of Cape Town. Mohamed Paleker is Associate Professor in the Department of Private Law at the University of Cape Town where he teaches the law of succession and civil procedure. He is also an Attorney of the High Court of South Africa. Anton van der Linde LLB LLM LLD (University of Pretoria) Anton van der Linde is a Professor in the Department of Private Law at the University of Pretoria where he teaches the law of succession and the law of trusts and estates. He also teaches the Certificate Program in Advanced Trust Law through Continuing Education at the University of Pretoria. He is an Attorney of the High Court of South Africa. Michael Wood-Bodley BCom LLB LLM (University of Natal, now the University of KwaZulu-Natal) Michael Wood-Bodley is a Senior Lecturer in the Faculty of Law at the University of KwaZulu-Natal where he teaches the law of succession and an introductory law course, as well as being an adjudicator in the school's Moot Court Program. He is also an Attorney and Conveyancer of the High Court of South Africa. Acknowledgements We wish to specifically thank the following people for their assistance in the preparation of this book: The authors for their hard work in writing their contributions and their patience through the editing process The team at Oxford University Press for their continued support in the writing process. Juanita Jamneck Christa Rautenbach About the book The Law of Succession in South Africa is a pedagogically rich learning resource. This book is designed to form a strong foundation of understanding, to develop the skills to engage independently and judiciously with legal principles and to create skilled and proficient lawyers. Brief description of features Pause for Reflection boxes: These boxes consider the policy ramifications of the law, how it works in practice, its logic and consistency with other principles, possible alternatives and other key issues. This feature instils a broader and deeper understanding of the subject matter. It stimulates discussion, supports independent thinking and develops the ability to engage meaningfully with relevant issues. Counterpoint boxes: These boxes highlight specific criticisms of the law just described and identify reform options. They identify areas of controversy, problems with current law and possible alternatives. This feature supports the ability to think critically and flexibly. It assists students to conceptualise legal issues from various perspectives, develops skills in formulating legal arguments and builds an awareness of various opinions about a particular principle. Legal Thinking boxes: These boxes demonstrate how legal principles are applied to solve legal problems, coaching students to follow a logical, systematic thought process. This feature illustrates in a generic and step-by-step manner how to work through problems conceptually in order to identify the relevant issues and to reach a rational and legally acceptable conclusion. Diagrams: These provide overviews and explain key concepts visually. This feature reinforces understanding, helps to clarify key concepts and shows more clearly the interrelationship between distinct legal concepts and processes. Tables: These are used to distinguish content and to aid conceptualisation. Example font style: This font style distinguishes illustrative examples from the core text. This subtle design feature ensures that any discussion of examples and cases is not confusing or distracting, and allows students to retain conceptual focus when comprehending core principles which are introduced in the text. It allows students to refocus their attention when they are ready to access further detail and clarity without interrupting the essential explanation of the principles. This chapter in essence: This section summarises the key areas and core topics covered in the chapter in a succinct list of essential points. Table of concepts in chapter 1: This contains explanations of the words and phrases that constitute the terms of art that are particular to the area of study covered in the book. Latin phrases and many others are explained and contextualised. It has been designed to facilitate the study of these concepts and definitions. Basic skills and problem-solving techniques in the law of succession The aim of this book Welcome to a study of the basic principles of the law of succession. The aim of this textbook is to provide students and practitioners with a general background to the law of succession and to discuss the general principles of the law of succession which forms an integral part of the South African law. After studying the general principles as set out in this book, you should be able to recognise the role of the law of succession in everyday life. This requires an understanding of the most pressing and prevalent issues relating to the law of succession generally occurring in South Africa. After you have worked through the contents of this textbook, you should have a clear understanding of the law of succession in a variety of contexts and you should be in a position to demonstrate an ability to interpret, explain and solve problems in the law of succession in different scenarios. Lastly, you should be able to read, understand and apply the legal principles pertaining to the law of succession as contained in case law. Problem-solving skills A law student or practitioner has to have problem-solving skills which he or she needs to sharpen continually. It is not enough to learn the legal rules by heart – you have to be able to apply these rules to problems during classroom discussions, assignments and exams and, in due course, be able to apply the same problem-solving methods in practice. The same skills must be applied in solving law of succession problems. The legal thinking boxes and examples used in this book are designed to form a strong foundation of understanding, to develop the skills to engage independently and judiciously with legal principles and to help in creating skilled and proficient lawyers. To solve a problem the following steps can be helpful in reaching a logical conclusion: First, identify the relevant legal issues by analysing the problem statement or facts provided. Second, describe the legal rules of the law applicable to the issues. During this step you have to state what the relevant legal rules are, give definitions of relevant concepts, cite case law, give applicable legislative provisions and also discuss contradictory viewpoints (the so-called ‘grey areas’). Third, apply the principles you have identified to the problem statement or the facts given to you. Fourth, draw a conclusion based on your foregoing analysis which will be part of your advice that you give your client. Consider the following example: Wendy approaches you for advice. Daniel, her recently deceased husband, left his entire estate to his secretary, Sophie, with whom it appears he was having an extramarital affair. He signed a document which appears to be his will with his initials and not his full signature in the presence of two witnesses. Wendy's friend, a secretary at a law firm, told her that Daniel's will is probably invalid as it does not comply with the certificate requirement. Advise Wendy on the validity of Daniel's will and any other possibilities that would allow her to inherit. Step 1 Identify the issues: This problem statement deals with the validity of a will that does not comply with the formalities of a will. (See chapter 5 for a discussion of the formalities.) Step 2 Discuss the principles: In terms of section 1 of the Wills Act, a testator is required to sign his will. The testator can do this by means of his signature, initials, the making of a mark or by using an amanuensis (someone signing on his behalf). If, however, he uses the last two methods (mark or amanuensis), a certificate by a commissioner of oaths has to be attached to the will. As Daniel did not use either of these methods, it does not become an issue. The question, however, is whether Daniel's initials qualify as a signature in terms of the Act. Here you have to discuss relevant case law and the provisions of the Act. Step 3 Apply the principles to the problem statement: Since Daniel's initials qualify as a signature in terms of the Wills Act, a certificate does not have to be attached to the will and the will is therefore valid. Step 4 Draw a conclusion (give advice to your client): Wendy will not be able to prevent Sophie from inheriting Daniel's entire estate because the will is valid. (Here you have to consider if there are any other possibilities available for Wendy.) Wendy may, however, have a claim for maintenance against Daniel's estate in terms of the Maintenance of Surviving Spouses Act if she complies with the requirements of the Act. If her claim succeeds, it will be paid out first before the residue of the estate is paid to Sophie. (See paragraph 8.2.4.2 for a discussion of the Act.) In terms of the Maintenance of Surviving Spouses Act, if a marriage is dissolved by death, the survivor shall have a claim against the estate of the deceased spouse for the provision of his or her reasonable maintenance needs until his or her death or remarriage but only insofar as he or she is unable to provide this from his or her own means and earnings. In determining the reasonable maintenance needs of the surviving spouse the following factors, in addition to any other relevant factor, are taken into consideration: the amount in the estate of the deceased spouse that is available for distribution to heirs and legatees the existing and expected means, earning capacity, financial needs and obligations of the surviving spouse and the subsistence of the marriage the standard of living of the survivor during the subsistence of the marriage and his or her age at the death of the deceased spouse. A claim for maintenance by a surviving spouse against the estate of the deceased spouse occupies the same position of preference as a claim for maintenance by a dependent child of the deceased spouse. Hints on studying this subject The following hints should provide you with the necessary tools to study the law of succession or, if you are a practitioner, provide you with guidelines in identifying the relevant principles applicable in a law of succession case in which your client is involved: Definitions form the basis of your knowledge and understanding of the law of succession and should be studied in detail. Without absolute knowledge of these definitions you will find it impossible to study or apply the law of succession. The correct use of all terminology is extremely important as you do not want to inadvertently change the meaning of your answers in the examination by using the wrong terminology. Take, for example, the terms ‘incapable’ and ‘incompetent’. A person may be ‘capable’ of taking a benefit, in other words it is possible for him, but the law regards him as ‘incompetent’, in other words the law refuses to give him the benefit because, for example, he murdered the testator. It is therefore imperative to use the correct terminology. Note that certain cases are mentioned throughout the textbook. It is always extremely important to refer to case law where possible to substantiate any argument. Remember that only the essence of some cases is discussed and that you should read the case in full if you want to understand it properly. At the end of each chapter, you will find a heading ‘This chapter in essence’. This paragraph gives an overview of the chapter concerned. On completion of a study of this textbook, students and practitioners should have not only a detailed knowledge of each individual chapter, but also a complete picture of the law of succession as a whole. Example of a will Some of you may not have seen what an actual will looks like before. Below you will find an example of a fairly simple will made by a single testator. The contents of the provisions in a will may, of course, differ greatly according to each testator's needs and wishes. Note: The names and facts contained in this example are fictitious. Note that it is also possible for multiple testators to make a joint will. To comply with the formalities, all their signatures will then appear on each page and at the end of the will. Conclusion We trust that you will find this textbook informative and that you will enjoy your study of the law of succession. Chapter 1 Introduction What is the nature, scope and application of the law of succession in South Africa? 1.1 General background to the law of succession 1.2 Law of succession in the legal system 1.3 Dual character of the law of succession 1.4 Choice of law rules 1.5 Succession terminology 1.6 Ground rules of succession This chapter in essence 1.1 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: in accordance with a valid will, that is, testamentary succession or successio ex testamento, which is discussed from chapter 3 onwards 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 chapter 2 in terms of a contract or agreement, that is, successio ex contractu or pactum successorium, which is discussed in chapter 14. 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 this publication in chapter 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: Administration of Estates Act 66 of 1965 (hereinafter referred to as the Administration of Estates Act) Black Administration Act 38 of 1927 (hereinafter referred to as the Black Administration Act) Children's Act 38 of 2005 (hereinafter referred to as the Children's Act) Children's Status Act 82 of 1987 (hereinafter referred to as the Children's Status Act) Civil Union Act 17 of 2006 (hereinafter referred to as the Civil Union Act) Constitution of the Republic of South Africa 200 of 1993 (hereinafter referred to as the Interim Constitution) Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution) Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 (hereinafter referred to as the Immovable Property Removal or Modification of Restrictions Act) 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. Law of Evidence Amendment Act 45 of 1988 (hereinafter referred to as the Law of Evidence Amendment Act) Maintenance of Surviving Spouses Act 27 of 1990 (hereinafter referred to as the Maintenance of Surviving Spouses Act) Marriage Act 25 of 1961 (hereinafter referred to as the Marriage Act) Matrimonial Property Act 88 of 1984 (hereinafter referred to as the Matrimonial Property Act) Recognition of Customary Marriages Act 120 of 1998 (hereinafter referred to as the Recognition of Customary Marriages Act) 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). See Appendix C at the end of the book for a copy of this Act. Trust Property Control Act 57 of 1988 (hereinafter referred to as the Trust Property Control Act) Wills Act 7 of 1953 (hereinafter referred to as the Wills Act). See Appendix A at the end of the book for a copy of this Act. This Act incorporates the amendments affected by the Law of Succession Amendment Act 94 of 1992. 1.2 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. 1.3 Dual character of the law of succession Colonialism in its various forms had a considerable impact on the development of law in general and the law of succession in particular. There was no recognition of customary law during the early period of occupation at first by the Dutch (1652–1795 and 1803–1806) and later by Britain (1795–1803). Only after the second British occupation in 1806 did customary law receive some form of recognition. The British followed a policy of non-interference with the customs and usages of indigenous people, provided that these customs and usages were not 1 repugnant to the principles of public policy and natural justice. During this time the various territories regulated the application of customary law by means of their own legislation. In 1927, the various colonial laws were finally consolidated in the controversial Black Administration Act that provides for the management of indigenous affairs. Although this Act managed the affairs of Africans for a long time, it did not survive constitutional scrutiny and little of the Act remains today. After many years of being treated as the stepchild of South African law, there is now no doubt as to the place of customary law. It is part and parcel 2 of modern South African law, equal to (and not subordinate to) the common law. Modern South African law is thus a mixed legal system. On the one hand, it is a conglomeration of Roman-Dutch law as influenced by English common law and adapted by legislation and court decisions. On the other hand, it consists of a number of indigenous laws, jointly referred to as customary law. In terms of the Recognition 3 of Customary Marriages Act, customary law is defined as the ‘customs and usages traditionally observed among 4 the indigenous African people’ and in terms of the partly repealed Black Administration Act, the term ‘black’ includes ‘any person who is a member of any aboriginal race or tribe of Africa’. The Law of Evidence 5 Amendment Act defines indigenous law as ‘the law or custom as applied by the Black tribes in the Republic’, 6 and the South African Law Reform Commission defines customary law as the ‘customs and usages traditionally observed among indigenous African peoples of South Africa and which form part of the culture of those people’. Against this background, one can say that the South African law of succession consists of two main branches – the common law of succession that comprises testamentary and intestate succession rules and the customary law of succession that comprises only intestate succession rules. Traditional textbooks on the law of succession distinguish between the common and customary laws of succession, and most universities deal with these two branches as two distinct separate systems. Legal literature has yet to recognise fully that both common law and customary law form part of modern South African law and that the law of succession is a dual system of law comprising two main branches, namely the common law and the customary law. While the common law and customary law have equal status in the South African legal system, there are four issues that must be considered when looking at the two branches of succession law: Customary law is subject to two provisos, namely it must be compatible with the Constitution and it may 7 be amended by means of legislation. The decision as to which law (common or customary) is applicable to a particular deceased estate is made by applying choice of law rules that can be derived from statute or judicial precedent. The choice of law rules for the law of succession are discussed at paragraph 1.4. Because customary law is not a single, unified system of law, but comprises the different customary laws of the various traditional communities in South Africa, section 1(3) of the Law of Evidence Amendment Act provides certain rules for dealing with conflict between the different customary laws. Section 1(3) reads: In any suit or proceedings between Blacks who do not belong to the same tribe, the court shall not in the absence of any agreement between them with regard to the particular system of indigenous law to be applied in such suit or proceedings, apply any system of indigenous law other than that which is in operation at the place where the defendant or respondent resides or carries on business or is employed, or if two or more different systems are in operation at that place (not being within a tribal area), the court shall not apply any such system unless it is the law of the tribe (if any) to which the defendant or respondent belongs. Although a discussion of these rules is beyond the scope of this book, the differences between the various customary laws must be kept in mind when deciding which customary laws will be applicable to a particular deceased estate. The differences between the common and customary laws of succession are mostly based on societal and economic considerations. On the one hand, the main purpose of the customary law of succession is the preservation of the family unit and the community after the death of the deceased. For this reason, the heir steps into the shoes of the deceased and acquires all the deceased's rights and obligations. On the other hand, the common law of succession rules are designed to regulate the transfer of the wealth of the deceased and they allow the deceased more freedom to dispose of his or her property as he or she pleases. The differences between the common and customary laws of succession based on societal and economic considerations will become more evident when the various rules are discussed in later chapters. 1.4 Choice of law rules 1.4.1 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. PAUSE FOR REFLECTION Common and customary systems of succession In the past, particularly prior to 1994, the common and customary systems of succession were kept strictly separate in South Africa. There were specific statutes regulating the succession of the property of black people and the administration of their estates. Section 23 of the Black Administration Act prohibited black persons from disposing of certain property (movable house property and quitrent land) by means of a will. House property had to devolve according to customary law and quitrent land had to devolve according to special statutory tables of succession similar to customary law. The only property that black persons could dispose of by means of a will was family property and other immovable property not qualifying as house property. In the case of property bequeathed by means of a will, the common law of succession applied. As for intestate succession, the Intestate Succession Act expressly laid down that estates subject to section 8 23 of the Black Administration Act fell outside the provisions of the Act. The result was that the intestate estates of black persons were excluded from the Intestate Succession Act. These intestate estates had to devolve according to rules laid down in special regulations promulgated under the Black Administration Act. In general terms, the regulations linked the relevant succession laws to the deceased's form of marriage or matrimonial property system. For example, if a deceased had concluded a civil marriage in community of property, his or her estate had to devolve according to the common law rules of succession. If, however, he or she had concluded a customary marriage, the customary succession laws would be applicable. In a similar vein, a distinction was drawn between the administration of estates of black persons and other persons. These differences and subsequent developments will be discussed in chapters 2 and 15. 1.4.2 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. 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 chapter 8. PAUSE FOR REFLECTION Common or customary law of succession? It is not always obvious whether the common or customary law of succession is applicable to a particular deceased estate. For example, although the concept of a will is unknown in customary law, it is accepted that a family head can make certain allocations of property to houses and individuals, and that his deathbed wishes must be respected. It could prove difficult to decide which law is applicable if a deathbed wish, which is also a phenomenon of the common law, appears in a will. Another example is a conflict situation that may develop when a vague clause in a will has to be interpreted. A usually clear-cut reference to ‘my children’ can be problematic if the deceased lived under a system of customary law. Although ‘my children’ usually refers to the descendants of a testator in terms of the common law, ‘my children’ could also include any person who was a dependant of the deceased in terms of the 9 customary law. It is an elementary principle of the common law that every document (including a will) must be read in the light of the circumstances that existed at the time of the drafting of the document. This principle is referred to as the armchair evidence rule and is applied when the court places itself in the position of the testator to determine what the intention was when the will was drafted. The customs or culture of the testator will obviously be one of the factors that the court takes into consideration and it could be that customary law principles would influence the interpretation of the will. 1.4.3 Intestate law of succession Where a deceased died without a valid will, the choice of law rules are more complex. In the past, statutory choice of law rules determined the law of succession applicable to persons. Section 23 of the Black Administration Act prohibited black persons from making wills regarding certain property, while section 1(4)(b) of the Intestate Succession Act confirmed that estates falling under section 23 fell outside the scope of the Intestate Succession Act. In addition, regulations promulgated under the Black Administration Act laid down certain choice of law rules if a person living under a system of customary law died without a valid will. Bhe v Magistrate, Khayelitsha In the landmark case Bhe v Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); 10 Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa (hereinafter referred to as Bhe v Magistrate, Khayelitsha unless indicated otherwise), the Constitutional Court made major changes to the choice of law rules to be applied to the intestate estates of persons living under a system of customary law. The Court declared section 1(4)(b) of the Intestate Succession Act, section 23 of the Black Administration Act and the regulations promulgated under this section unconstitutional and invalid. Consequently, the Court ordered that, as from 15 October 2004, the Intestate Succession Act had to be applied to all intestate estates, irrespective of the cultural affiliation of the deceased. The customary law of succession can now only be applied if so chosen by means of freedom of testation, in other words, by means of a clause in a will. In line with these developments, the Reform of Customary Law of Succession Act (the RCLSA) was promulgated to modify the customary law of succession. The President assented to the Act on 19 April 2009 and it came into operation on 20 September 2010. The Act contains an important choice of law rule, namely that the estate of any person who is subject to customary law that does not devolve in terms of a will, must devolve 11 according to the Intestate Succession Act. Although the Act applies the Intestate Succession Act to customary law estates, there are important differences 12 between the devolution of these estates and ordinary common law estates. The Department of Justice and Constitutional Development foresaw that there might be disputes or uncertainty with regard to the question of whether customary law is applicable or not. To resolve this, there is a provision in the RCLSA giving jurisdiction to the Master of the High Court regarding disputes or uncertainties in connection with the devolution of family 13 property. The Master may also refer a matter to a magistrate who must hold an enquiry and make recommendations. However, laying down these rules in the RCLSA does not necessarily mean that it is going to be applied in practice. It is customary for a family to distribute the estate of a deceased living under customary law informally. Normally, authorities, such as the Master of the High Court or a magistrates' court official appointed as a designated officer of the Master, are only consulted if there is a serious disagreement among the family members of the deceased. It is thus almost impossible to speculate on the extent to which the rules of intestate succession contained in the Intestate Succession Act will actually be applied without conducting empirical research in this regard. 1.4.4 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 14 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 15 depending on the value of the estate. 1.5 Succession terminology This section comprises an easy-to-use reference list of concepts inherent in the law of succession that are used in this book. Table 1.1 List of concepts inherent in the law of succession Concept Meaning absolute a bequest that does not contain any conditions. It is the simplest way of making a bequest bequest and the effect of such a bequest is that vesting of rights normally takes place on the testator's death accrual or the the right which co-heirs or co-legatees have of inheriting the share that their co-heir or co- right of accrual legatee cannot or does not wish to receive (ius accrescendi) ademption a form of tacit revocation of a legacy when a testator voluntarily alienates the object of the legacy during his or her lifetime causing the legacy to fail adiation the acceptance of a benefit from the estate of a testator administration the process, including all administrative actions to initiate and complete the process, by of estates which a deceased estate is liquidated by an executor under the supervision of the Master of the High Court and is divided among the beneficiaries amanuensis someone who signs the will on behalf of the testator amendment deletion, addition, alteration or interlineation by the testator. An amendment is distinguished from rectification, which takes place when a court adds, deletes or corrects something in a will because the testator made a mistake. See also rectification animus testandi the intention of the testator to make a will armchair evidence used by the court to place itself in the position in which the testator was at the time evidence of the making of the will ascendants ancestors of the deceased; anybody in the ascending (upwards) line of relationship attestation a clause that appears at the end of the will in which it is declared that all the parties were clause present and signed in one another's presence. It may also record the place and date of signature beneficiary or the person or persons to whom a testator's estate is transferred. Beneficiaries are called beneficiaries heirs when they receive an inheritance and legatees when they receive a legacy. See also heir and legatee bequeath to dispose of assets by means of a will bequest the bequeathable assets left by a deceased. It is called an inheritance when bequeathed to an heir and a legacy when bequeathed to a legatee capacity to act a person's capacity to enter into legal acts. The required age is 18. This capacity must be distinguished from testamentary capacity. See also testamentary capacity child's portion calculated by dividing the deceased's estate by the number of children who have either survived him or her, or who have predeceased him or her but have left descendants of their own, plus the number of surviving spouses collateral refers to a person who is related to the deceased because he or she has the same ancestor as the deceased, for example a full brother, a half-brother, full sister, half-sister, niece, nephew, cousin, uncle or aunt. A full brother or sister of the deceased is a brother or sister descended from both parents of the deceased. A half-brother or half-sister is a brother or sister descended from one parent of the deceased collation or under certain circumstances, a descendant who received certain benefits (either property or collatio money) from a testator during the testator's lifetime has to collate (bring in) such benefit (or bonorum its value) before he or she may inherit from the estate of the testator to ensure a fair distribution of the deceased estate among all the descendants commorientes people who die simultaneously in a disaster competent with regard to a will, any person over the age of 14 years who is competent to give evidence witness in a court of law compos mentis of sound mind conditional a bequest that depends on a future event which is uncertain in the sense that it may or may bequest not occur coniunctissimae the persons closest to the deceased, namely the surviving spouse, parents and children personae or coniunctissimi contractual a contract in which the parties attempt to regulate the devolution of the entire estate or part succession or of the estate of one or both parties pactum successorium curator a person who has been legally appointed to take care of the interests of someone who is unable to manage his or her affairs, for example someone who is a minor or mentally ill. A curator ad litem is a person appointed to assist someone to litigate in court, while a curator bonis is a person appointed to administer property or an estate customary in customary law, the word ‘house’ refers to the family, property, rights and status connected house to the customary marriage of a man and a woman. Since polygyny is still practised among certain traditional communities, one family head may have more than one wife and thus more than one house because each wife constitutes a house with certain property, rights and status customary law there are three categories of customary law property, namely family property, house property property and personal property. Family property is property that has neither been allotted nor has accrued to a specific house. Family property is controlled by the head of the family although the property is owned by all the family members together. It includes property that the family head inherited from his mother's house, property he acquired by his own labour and land allotted by the traditional authority to the family group, but not to a particular house. House property is property that accrues to a specific house in terms of customary law or is allocated by the family head to a particular house and must be used for the benefit of that house. It includes the earnings of the members of the house, livestock allocated to the house and its increase, property given to a wife at the time of her marriage, lobolo received for daughters of the house on their marriage, compensation for delicts against members of the house, agricultural products produced by the wife of the house and other products produced by other members of the house. Personal property belongs to the person who acquired it and includes items of a personal nature such as a walking stick, a snuff box, clothing and jewellery customary a marriage concluded in terms of customary law marriage deceased consists of the assets and liabilities of a deceased person at the time of his or her death. estate The estate therefore consists not only of property, but also of any debts that the deceased incurred before his or her death. The residue of the estate refers to that part of the deceased's estate which remains after funeral expenses, all debts, taxes, administrative fees and other administration costs, maintenance claims and all legacies have been paid out. The residue is what is left in the estate after everything has been paid out or transferred and it includes all bequests that have failed or lapsed descendants common law descendants include the lineal descendants (persons in the downwards line) of the deceased. The customary law concept of descendants generally includes a wider circle of descendants. According to section 1 of the RCLSA, the following categories of persons qualify as descendants: 1. a person who is a descendant in terms of the Intestate Succession Act (thus common law descendants) 2. a person who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child 3. a woman who was involved in a substitute marriage or a woman-to-woman marriage dies cedit the day will come. The time when a beneficiary obtains a vested right to claim delivery of bequeathed property unconditionally (whether or not the exercise of this right is delayed until some future date which is certain to arrive) dies venit the day has come. The time at which a beneficiary's right to claim delivery of bequeathed property becomes enforceable or the day when delivery of the property has to take place direct occurs where a testator names a substitute or a series of substitutes who are to inherit if the substitution heir or legatee named to benefit in a will does not inherit. Direct substitution is substitution in the alternative donatio mortis a donation aimed at the death of the donor that must comply with the formalities laid down for causa a will estate massing when two or more testators (usually two spouses) mass the whole or parts of their estates into one consolidated economic unit for the purpose of testamentary disposal and the disposal becomes effective on the death of the first-dying spouse execution of a the process whereby the testator and other parties comply with all the formalities required to will bring a valid will into existence executor the person who is charged with the administration of a deceased estate; the person who winds up the estate. An executor in a deceased estate is distinguished from a curator of an insolvent estate and from a trustee or administrator of a trust extrinsic evidence outside the will itself; evidence of facts that do not appear from the will itself evidence fideicommissary occurs where a testator directs that a series of beneficiaries are to own his or her whole substitution or estate or part of it, or specific assets one after the other. The first heir is known as the fideicommissum fiduciary and the succeeding beneficiary as the fideicommissary. See also substitution fideicommissum where property is left to a fiduciary subject to the condition that as much of it as may be left residui at the time of his or her death is to devolve on another person (the fideicommissary) formalities the formal legal requirements with which a will must comply to be valid freedom of the freedom of a person to dispose of his or her estate as he or she pleases testation heir a beneficiary who inherits a testator's entire estate, a portion thereof or the residue thereof. The bequest is known as an. legatee inheritance See also inter vivos between the living inter vivos trust a trust created during the life of the creator thereof intestate law of the legal rules or legal norms that determine how succession should take place in cases succession or where a testator fails to regulate succession on death by way of a valid will or a pactum successio ab successorium contained in an antenuptial contract intestato joint will where two or more testators set out their respective wills in the same document. Such a will differs from a mutual will in that the parties do not necessarily appoint each other as beneficiaries. See also mutual will juristic act an act that is intended to create or alter rights and obligations; an act to which the law attaches at least some of the consequences envisaged by the acting party or parties. Such an act may be multilateral, in other words, an act performed through the cooperation of two or more persons, for example to conclude a contract, or unilateral, in other words, an act performed by one person, for example the making of a will law of comprises legal rules that control the transfer of those assets of a deceased that are eligible succession for distribution to beneficiaries, or those assets of another person over which the deceased has the power of disposal legatee a person who inherits a specific asset or a specific amount of money from a testator. The bequest is known as a. heir legacy See also living the actual version of customary law as applied by the people living under a system of customary law customary law which may differ from the official version. See also official customary law lobolo the property in cash or in kind that a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of a customary marriage male under customary law the heirs of the deceased are usually male and are identified by their primogeniture relationship to the deceased through the male line. The firstborn son in a monogamous household is normally the deceased's heir; in a polygynous household, it is normally the firstborn son of the main house. In the absence of a firstborn son or his descendant, succession passes to the second son or his descendants, and keeps on passing to the male descendants until one is found. If the deceased had no male descendants, his father will be the heir. If the father is already deceased, the deceased's eldest brother will be next in line. Failing him, his male descendants in order of seniority will succeed, and so the order continues to the other brothers, then the grandfather, paternal uncles or their descendants in order of seniority and keeps passing on until a male heir in the specific line is found modus or a qualification added to a gift or testamentary disposition which requires the beneficiary to obligation devote the property received (or the value thereof) in whole or in part to a specific purpose mortis causa in contemplation of death mutual will where two or more testators draw up a joint will and confer benefits on each other in the same will. See also joint will nudum if a testator bequeaths property to a beneficiary but prohibits him or her from dealing with praeceptum the property in a certain way, for example alienating the property, such a prohibition will only be valid if someone else has been nominated by the testator to take the property should the beneficiary contravene the prohibition. If no provision is made for a substitute or ‘gift over’ in the event of contravention of the prohibition, the prohibition is called a nudum praeceptum or nude prohibition and is not legally binding official the version of customary law as applied by the courts and entrenched in legislation. See customary law also living customary law pactum a contract in which the parties attempt to regulate the devolution of the entire or part of the successorium assets of one or both parties polygyny and a form of polygamy where a man has more than one wife polygynous posthumous something that occurs or continues after someone's death. For example, a posthumous child means a child born after the death of the father of the child power of the power to appoint certain beneficiaries as heirs or legatees given to someone else by the appointment testator precedent also known as stare decisis – ‘to stand by that which is decided’. South African courts system follow the principle of stare decisis which means that when a court makes a decision, it establishes a precedent that has to be followed by other courts in their future judgments. The precedent system is especially used in common law systems where judges are greatly involved in making law; when judges interpret the law, it leads to a common understanding of how law should be interpreted pre-legacy also possible to create in a will. Such a pre-legacy has precedence over all other legacies and inheritances prodigal a spendthrift; someone who is characterised by excessive or imprudent spending quid pro quo something for something; mutual consideration quitrent land the owner of land held under a quitrent title does not have full ownership of the land, but only (the Afrikaans the right to loan the property from the government for a certain period of time and against term is erfpag) payment of a certain amount of money rebuttable a presumption that will stand as a fact unless proven otherwise presumption rectification takes place when a court adds, deletes or corrects something in a will because the testator made a mistake when making the will and the will does not reflect his or her intention correctly. Must be distinguished from amendment – see also amendment repudiation the rejection of a benefit or refusal to inherit a benefit from the estate of a testator residue or refers to that part of the deceased's estate after the payment of funeral expenses, all debts, residuary taxes, administrative fees and other administration costs, maintenance claims and all estate legacies have been paid out. The residue is what is left in the estate after everything has been paid out or transferred and it includes all bequests that have failed or lapsed. If the funds in the estate are not sufficient to pay the creditors and the legatees, the heirs receive nothing. If the debts exceed the funds available in the residue of the estate, the legacies will be proportionately reduced and the heirs will receive nothing resolutive a bequest is subject to a resolutive (terminative) condition when the bequest is made to (terminative) terminate if a particular uncertain future event takes place condition resolutive a bequest subject to a resolutive (terminative) time clause is one where the beneficiary's (terminative) rights are terminated when a certain time arrives time clause or resolutive term si sine liberis a clause that stipulates that if a beneficiary dies without children after the testator, the benefit decesserit must pass to a third party clause spes hope or expectation stipulatio alteri a contract in favour of a third person stipulation or general terms used for clauses in a will where the testator has made his or her intentions provision known stirps or stirpes a line of descendants of common ancestry. A stirps (plural: number of stirps or stirpes) includes every descendant of the deceased who survives the deceased, or a predeceased descendant of the deceased who leaves living descendants. In other words, a stirps is a surviving child of the deceased and the descendants of a predeceased child substitution occurs when a testator appoints a beneficiary to inherit a benefit and, at the same time, appoints another beneficiary to take the place of the first-mentioned beneficiary. Substitution may take place either in the alternative (direct substitution) or one beneficiary after another (fideicommissary substitution). See also direct substitution and fideicommissary substitution succession to in the customary law of succession, the successor steps into the shoes of the deceased and status gains control over the property and people whom the deceased controlled. In other words, the successor succeeds to the status of the deceased as well as to both the assets and liabilities of the estate survivor or the spouse who is still alive after the death of his or her spouse. In terms of the common law, surviving the term ‘spouse’ normally refers to someone with whom the deceased had a valid civil spouse marriage. However, in modern South African law, the following categories qualify as surviving spouses: 1. a spouse in a marriage in terms of South African law, namely a marriage concluded under the Marriage Act, the Recognition of Customary Marriages Act or the Civil Union Act 2. a spouse in a customary marriage that does not fall within the ambit of the Recognition of Customary Marriages Act 3. a spouse in a marriage concluded in accordance with a system of Muslim or Hindu law. Special circumstances exist in the case of customary marriages, especially in the context of succession. Section 2 of the Reform of Customary Law of Succession Act recognises two additional categories of spouses, namely: 1. a woman with whom the deceased entered into a union in accordance with customary law with the purpose of providing children for the spouse's house (substitute marriage) 2. any woman who was married to a deceased woman under customary law for the purpose of providing children for the house of the deceased (woman-to-woman marriages). See also paragraph 8.2.4.2.2 suspensive if a bequest is made subject to a suspensive condition, the beneficiary does not obtain a condition vested, finally established right to the benefit unless and until a particular uncertain future event takes place suspensive time a bequest subject to a suspensive time clause is a bequest from which the beneficiary will clause or receive the benefit only at a certain future time suspensive term testamentary capacity to make a will. Every person aged 16 years or more may make a will unless at the capacity time of making the will, he or she is mentally incapable of appreciating the nature and effect of the act. This capacity must be distinguished from capacity to act. See also capacity to act testamentary a document that defines any one of the three essential elements of a bequest: writing 1. the property bequeathed 2. the extent of the interest bequeathed; or 3. the beneficiary testate law of comprises those legal rules or norms that regulate the devolution of a deceased person's succession or estate on one or more persons according to the testator's wishes as expressed in a will successio ex testamento testator a natural person who makes a will in which he or she bequeaths an estate in the form of bequeathable assets trust the arrangement through which the property of a person is by virtue of a trust instrument bequeathed: (a) to another person, the trustee, in whole or in part, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument; or (b) to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument to the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument, but does not include the case where the property of another is to be administered by any person as executor, tutor or curator 16 in terms of the provisions of the Administration of Estates Act. In other words, in a trust the testator entrusts the ownership and control of his or her property to a third party (the trustee) to manage the property in the interests of a beneficiary or beneficiaries trust a written agreement, a testamentary writing or a court order in terms of which a trust is instrument created tutor a third person appointed in a will by a natural parent or parents where such a parent or parents, who would ordinarily act as the minor's guardian, is or are unavailable, for whatever reason, to act as guardian usufruct, occurs when ownership is bequeathed to one person but the right to use, enjoy and take the ususfructus or fruits of the property is bequeathed to another. The latter is called the usufructuary and the life interest owner is called the dominus, remainderman or nude owner vest takes place when legal ownership of property or legal rights settle on a beneficiary will or a unilateral, voluntary juristic act contained in a document which complies with formalities testament required by law, and in which the testator gives instructions pertaining to what must happen to his or her estate after his or her death 1.6 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. 1.6.1 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. Estate Orpen v Estate Atkinson 17 The application of the rule is illustrated in Estate Orpen v Estate Atkinson where the testators, the Atkinsons, massed their estates in a joint will. They had only one child, a daughter. According to the stipulations of the will, the massed estate would, on the death of Mr Atkinson, should he die first, be handed over to the executors of the estate and they would act as trustees (in other words, a trust was created). From the moment of death of the testator, Mrs Atkinson, also a testator, and the daughter would receive the income of the trust in equal parts (in other words, they would be income beneficiaries). Should one of them die, the survivor would receive the whole of the trust income for the rest of her life. Should the daughter die, the whole trust (corpus) would go to her children in equal shares, subject to the usufruct of Mrs Atkinson should she still be alive. The will also stipulated that if the daughter should on death have no children, 20% of the trust capital (corpus) would go to such person as the daughter might designate in her will. She therefore obtained a ‘power of appointment’ in her parents' will with regard to 20% of the corpus of the trust. The destination of the other 80% was arranged for in the parents' will and is not of concern for purposes of this discussion. On 5 March 1963, while her father was still alive, the daughter, Mrs Orpen, made a will in which, with reference to her ‘power of appointment’, she bequeathed the 20% trust capital to her husband, Mr Orpen. She thus exercised her ‘power of appointment’ in favour of her spouse. Mrs Orpen died on 23 March 1963 without children. Her father, Mr Atkinson, the creator of the ‘power of appointment’, died after his daughter on 9 November 1963. Mr Orpen died on 23 December 1964. The legal question was whether the exercise of Mrs Orpen's ‘power of appointment’ in favour of Mr Orpen in terms of her father's will was valid, and whether her spouse's deceased estate had obtained vested rights with regard to the 20% trust capital that she had bequeathed to him, regardless of the fact that she died before her father. Her father was therefore still alive when her will, in which she exercised her ‘power of appointment’, came into operation. The Court held that Mr Orpen's estate had no right to 20% of the trust capital. Mrs Orpen obtained her ‘power’ from her father and she could not exercise it unless she survived her father. Because he was still alive when she died, she could not exercise rights left to her in his will. She could only validly exercise her rights if she survived him. 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. 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. The principles applicable to judicial 18 presumption of death have been reviewed in detail by the higher courts, for example in Re Beaglehole, Ex 19 20 21 22 23 parte Engelbrecht, Ex parte Rungasamy, Ex parte Govender, Ex parte Pieters and Ex parte Stoter. 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 24 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. Consider the following example: Examples of commorientes Xavier and his daughter Brenda die in a plane crash in which there are no survivors. In terms of Xavier's will, his son Casper is his only heir. Xavier's estate is only worth R100. In terms of Brenda's will, Xavier is her only heir and Brenda was wealthy. If Xavier died after Brenda and could first inherit from her, Casper, who inherits from Xavier, is in a favourable position. Casper would want to prove that Brenda died before Xavier. If Xavier and Brenda died simultaneously and on impact, Xavier cannot inherit anything from Brenda as he was not alive on Brenda's death. 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. Ex parte Graham 25 In Ex parte Graham, the testatrix and her adopted son, together with the rest of the passengers and crew, were killed when their plane crashed in a swamp. The testatrix had a will in which she left to her son ‘all my estate remaining at the time of the death of my father and mother’. The will also provided for the immediate transfer of certain immovable property into the name of the son subject to the right of her parents to remain in the home for the rest of their lives. In conclusion, she stipulated that ‘should my adopted son predecease me’, the whole estate must succeed unconditionally to her mother. In terms of the will, the testatrix's estate was awarded to her mother, but the Registrar of Deeds refused to transfer the immovable property without a court order declaring that the ‘adopted son died before or simultaneously’ with the testatrix. The Court came to the conclusion that there is no presumption as to which of two people, who perished in the same accident, predeceased the other. The question as to who died first is a question of fact depending on the circumstances of each case. In this particular case the evidence was such that no other conclusion than one of simultaneous death could be reached and the Court made an order accordingly. Greyling v Greyling 26 In Greyling v Greyling, a husband and wife were killed in a car accident. According to the evidence, the husband probably lived longer than his wife. In their joint will the spouses stipulated that should the husband die first, the wife shall inherit the residue of the estate and shall have a usufruct of the immovable property, which had been bequeathed to one of their sons (the first respondent). The will also stipulated that if the wife dies first, the whole of the estate had to devolve to the husband. Finally, the will contained a provision to the effect that if they died simultaneously, the immovable property in their estate had to devolve to one of their sons (the first respondent), while the residue of the estate had to be divided equally among the rest of their living children. The first applicant (another son of the deceased) argued that his mother had died first and because his father was her only beneficiary in terms of the joint will, it would mean that she died intestate. In opposition, the first respondent argued that the estate must be liquidated as if his parents had died simultaneously, resulting in him being the beneficiary of all the immovable property. The Court held that the words ‘gelyktydig te sterwe kom’ (to die simultaneously) meant the death of the testators as the result of a single incident, irrespective of the fact that there was a difference in the exact time at which they died. It held accordingly that the estate had to be administered in accordance with the will as if both parents had died simultaneously, resulting in the first respondent receiving the immovable property while the rest of the children received the residue of the estate in equal parts. 1.6.2 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 chapter 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. 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. 1.6.3 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 27 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 benefit 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. 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. 1.6.4 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 chapters 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 chapters 2 and 15. THIS CHAPTER IN ESSENCE 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. There are various rules to determine whether the common law rules or the customary law rules are applicable: 4.1 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. 4.2 The Intestate Succession Act applies to all intestate estates irrespective of the cultural affiliations of the deceased. 5. Succession may take place in three ways: 5.1 in accordance with a valid will (testamentary succession) 5.2 through the operation of intestate succession (without a valid will) 5.3 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: 6.1 The testator must have died. 6.2 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). 6.3 At the time of dies cedit, the beneficiary has to be alive or have been conceived. 6.4 The beneficiary must be competent to inherit. 1 For examp

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