INTESTATE SUCCESSION
CONCEPTS
CONSANGUINITY
The degree of biological or blood relationship between two persons who are descended from the
same common ancestor.
LINEAL CONSANGUINITY
Refers to a direct blood relationship between
individuals, where one is a descendant or
ascendant of the other.
COLLATERAL CONSANGUINITY
Refers to the blood relationship between
people who share a common ancestor but
are not in a direct line of descent from one
another.
DESCENDANT
Definition: Refers to a:
1) A person's child, grandchild, great grandchild etc.
2) Any person considered to be a descendant ito statute.
ASCENDANT
Refers to:
1) The ancestors of the deceased.
2) A person who came before the deceased.
COLLATERAL
Definition: A person who shares an ancestor with the
deceased, including:
1) Full-/half-siblings.
2) Aunts and uncles.
3) Cousins.
4) Nieces or nephews.
PARENTELA
Definition: A group containing both the ascendants and descendants.
1st = Deceased and their descendants.
2nd = Deceased’s ascendants and their descendants (excl. deceased).
2nd
1st
, REPRESENTATION
A person inherits on the basis of their blood relationship with a predeceased beneficiary of the
deceased = they fill the missing spot.
BY STIRPES
A Latin term that means “by roots” or “by stocks” = a line of descendants from common ancestry.
1st A
A leaves 25% to B, C, D and E.
C and D, however, both predecease A.
B C D E
The estate will devolve equally to each,
but for C and D, it will devolve per stirpes
to their descendants.
3rd 4th
2nd
PER CAPITA
Beneficiaries inherit equally from the estate, but if one beneficiary dies before the deceased their
share is divided among the remaining beneficiaries, not their descendants.
A
A leaves equal shares to B, C, D and E.
1st
C and D predecease A – no provision was
B C D E made for stirpes.
C and D’s descendants won’t inherit.
B and E will each inherit an equal share
of A’s estate.
2nd
INTESTACY
DEFINITION
1) de Waal & Schoeman-Malan: Intestacy applies when a deceased person has failed to
regulate the devolution of their estate by a valid will or ANC, or where such regulation can’t be
carried out.
2) Jamneck & Rautenbach: Intestacy consists of statutory rules that determine succession
where a deceased lived under the common law system or under customary law.
CONSOLIDATED DEFINITION
Intestacy is the branch of LOS that determines who inherits a deceased’s estate, and in what
shares, where the deceased has failed to regulate succession by a valid will or ANC, or where
such regulation is wholly or partially ineffective, resulting in the estate devolving ex lege.
Q: Is intestate succession codified?
Yes! It is largely codified in:
1) The ISA as amended, and
2) The RCLSA.
,Q: What is the purpose of intestate succession?
1) Identify the heirs of the deceased,
2) Determine the extent of their interest, and
3) Determine the order in which they inherit.
WHEN IT OCCURS
WHOLE (the entire estate devolves intestate)
1) No valid will or testamentary disposition exists (never drafted or invalid).
2) The will is wholly revoked (by destruction or express revocation with no new will).
3) A document purporting to be a will doesn’t comply with statutory formalities and can’t be
condoned.
4) A valid will subsequently becomes wholly inoperative (factually determined failure).
PARTIAL (a part of the estate devolves intestate)
1) The will bequeaths only specific assets but makes no provision for the residue of the estate.
2) The will appoints only legatees (not heirs), resulting in undisposed residue after debts and
legacies are deducted.
3) An appointed heir fails to succeed (due to predeceasing the testator, repudiation, or
disqualification) and no substitution clause applies.
4) An heir’s appointment is a nullity or lapses, leaving a portion of the estate undisposed of.
5) A valid will failed to dispose of the entire estate, whether through omission or oversight.
Q: How is the timing and identification of heirs determined in intestate succession?
• In cases of pure intestacy, the rights of intestate heirs vest when the estate falls open (dies
cedit), and the identity of heirs is determined at the date of death.
• Where a deceased left a valid will that later becomes inoperative, the identity of intestate
heirs is determined only at the time the will ultimately fails, not at the date of death.
BACKGROUND
ROMAN LAW
• Intestate succession applied when no valid will existed.
• Focus on benefitting agnatic relatives (male lineage).
• The main functions of succession:
1) Maintaining family sacra, and
2) Promoting family continuity.
• At the end of the era:
1) With Praetorian reforms (women and children) and Justinian’s law (blood relatives),
cognatic relatives were recognised, and
2) There was a major shift towards an egalitarian system (no gender distinction) for
inheritance.
GERMANIC CUSTOMARY LAW
• Property belonged to the family collective, led by the patriarch = at death, eldest son became
head of the family, but property remained family-owned.
, • Succession was agnatic and patriarchal, women excluded.
• Feudal system introduced primogeniture (eldest son inherits land/titles).
• Later shift to parentelic system: Inheritance based on degrees of kinship.
ROMAN-DUTCH LAW
• Rooted in two Dutch systems:
1) Aasdomsrecht (North): Property transfers to the closest blood relatives.
2) Schependomsrecht (South): Property returns to the line of origin.
• Octrooi of 1661 applied Schependomsrecht in the Cape Colony, forming the basis of modern
SA intestate succession.
ENGLISH LAW
• Introduced executorship (1883 Ordinance): The heir no longer steps into deceased’s shoes;
executor manages estate.
• Added administrative and procedural formalities but didn’t fundamentally change intestate
rules derived from Roman-Dutch law.
SOUTH AFRICA
PRE-1988 POST-1988
• Intestate rules drawn from a mix of RD law • ISA (18 March 1988):
and statutory adaptations. 1) Codified intestate succession.
• Discrimination existed: 2) Abolished common-law/statutory
1) Surviving spouses under customary variations.
marriages excluded. 3) Recognised spouses, adopted
2) Adopted, extra-marital, and female children, extra-marital children, and
children often restricted. children from artificial
• BAA applied customary male insemination/surrogacy.
primogeniture to African estates, • The Con protects human dignity and
entrenching racial disparity. equality, which directly influence how the
rules of intestacy are applied and
developed.
• CA expanded protections for all children.
• RCLSA expanded protection for African
estates.
Q: How was the protection of heirs in African customary estates expanded?
• Traditionally, customary succession was universal, patriarchal, and process-based, with the
eldest son or male relative succeeding as head of the household.
• Under apartheid, this system was distorted into a rigid rule of male primogeniture through the
BAA, which reduced diverse customs to a single fixed rule.
• Constitutional jurisprudence shifted this position: The courts struck down male
primogeniture and extended the ISA to all estates regardless of race.
• This culminated in the RCLSA, which unified customary succession with the general law of
intestate succession.
CONCEPTS
CONSANGUINITY
The degree of biological or blood relationship between two persons who are descended from the
same common ancestor.
LINEAL CONSANGUINITY
Refers to a direct blood relationship between
individuals, where one is a descendant or
ascendant of the other.
COLLATERAL CONSANGUINITY
Refers to the blood relationship between
people who share a common ancestor but
are not in a direct line of descent from one
another.
DESCENDANT
Definition: Refers to a:
1) A person's child, grandchild, great grandchild etc.
2) Any person considered to be a descendant ito statute.
ASCENDANT
Refers to:
1) The ancestors of the deceased.
2) A person who came before the deceased.
COLLATERAL
Definition: A person who shares an ancestor with the
deceased, including:
1) Full-/half-siblings.
2) Aunts and uncles.
3) Cousins.
4) Nieces or nephews.
PARENTELA
Definition: A group containing both the ascendants and descendants.
1st = Deceased and their descendants.
2nd = Deceased’s ascendants and their descendants (excl. deceased).
2nd
1st
, REPRESENTATION
A person inherits on the basis of their blood relationship with a predeceased beneficiary of the
deceased = they fill the missing spot.
BY STIRPES
A Latin term that means “by roots” or “by stocks” = a line of descendants from common ancestry.
1st A
A leaves 25% to B, C, D and E.
C and D, however, both predecease A.
B C D E
The estate will devolve equally to each,
but for C and D, it will devolve per stirpes
to their descendants.
3rd 4th
2nd
PER CAPITA
Beneficiaries inherit equally from the estate, but if one beneficiary dies before the deceased their
share is divided among the remaining beneficiaries, not their descendants.
A
A leaves equal shares to B, C, D and E.
1st
C and D predecease A – no provision was
B C D E made for stirpes.
C and D’s descendants won’t inherit.
B and E will each inherit an equal share
of A’s estate.
2nd
INTESTACY
DEFINITION
1) de Waal & Schoeman-Malan: Intestacy applies when a deceased person has failed to
regulate the devolution of their estate by a valid will or ANC, or where such regulation can’t be
carried out.
2) Jamneck & Rautenbach: Intestacy consists of statutory rules that determine succession
where a deceased lived under the common law system or under customary law.
CONSOLIDATED DEFINITION
Intestacy is the branch of LOS that determines who inherits a deceased’s estate, and in what
shares, where the deceased has failed to regulate succession by a valid will or ANC, or where
such regulation is wholly or partially ineffective, resulting in the estate devolving ex lege.
Q: Is intestate succession codified?
Yes! It is largely codified in:
1) The ISA as amended, and
2) The RCLSA.
,Q: What is the purpose of intestate succession?
1) Identify the heirs of the deceased,
2) Determine the extent of their interest, and
3) Determine the order in which they inherit.
WHEN IT OCCURS
WHOLE (the entire estate devolves intestate)
1) No valid will or testamentary disposition exists (never drafted or invalid).
2) The will is wholly revoked (by destruction or express revocation with no new will).
3) A document purporting to be a will doesn’t comply with statutory formalities and can’t be
condoned.
4) A valid will subsequently becomes wholly inoperative (factually determined failure).
PARTIAL (a part of the estate devolves intestate)
1) The will bequeaths only specific assets but makes no provision for the residue of the estate.
2) The will appoints only legatees (not heirs), resulting in undisposed residue after debts and
legacies are deducted.
3) An appointed heir fails to succeed (due to predeceasing the testator, repudiation, or
disqualification) and no substitution clause applies.
4) An heir’s appointment is a nullity or lapses, leaving a portion of the estate undisposed of.
5) A valid will failed to dispose of the entire estate, whether through omission or oversight.
Q: How is the timing and identification of heirs determined in intestate succession?
• In cases of pure intestacy, the rights of intestate heirs vest when the estate falls open (dies
cedit), and the identity of heirs is determined at the date of death.
• Where a deceased left a valid will that later becomes inoperative, the identity of intestate
heirs is determined only at the time the will ultimately fails, not at the date of death.
BACKGROUND
ROMAN LAW
• Intestate succession applied when no valid will existed.
• Focus on benefitting agnatic relatives (male lineage).
• The main functions of succession:
1) Maintaining family sacra, and
2) Promoting family continuity.
• At the end of the era:
1) With Praetorian reforms (women and children) and Justinian’s law (blood relatives),
cognatic relatives were recognised, and
2) There was a major shift towards an egalitarian system (no gender distinction) for
inheritance.
GERMANIC CUSTOMARY LAW
• Property belonged to the family collective, led by the patriarch = at death, eldest son became
head of the family, but property remained family-owned.
, • Succession was agnatic and patriarchal, women excluded.
• Feudal system introduced primogeniture (eldest son inherits land/titles).
• Later shift to parentelic system: Inheritance based on degrees of kinship.
ROMAN-DUTCH LAW
• Rooted in two Dutch systems:
1) Aasdomsrecht (North): Property transfers to the closest blood relatives.
2) Schependomsrecht (South): Property returns to the line of origin.
• Octrooi of 1661 applied Schependomsrecht in the Cape Colony, forming the basis of modern
SA intestate succession.
ENGLISH LAW
• Introduced executorship (1883 Ordinance): The heir no longer steps into deceased’s shoes;
executor manages estate.
• Added administrative and procedural formalities but didn’t fundamentally change intestate
rules derived from Roman-Dutch law.
SOUTH AFRICA
PRE-1988 POST-1988
• Intestate rules drawn from a mix of RD law • ISA (18 March 1988):
and statutory adaptations. 1) Codified intestate succession.
• Discrimination existed: 2) Abolished common-law/statutory
1) Surviving spouses under customary variations.
marriages excluded. 3) Recognised spouses, adopted
2) Adopted, extra-marital, and female children, extra-marital children, and
children often restricted. children from artificial
• BAA applied customary male insemination/surrogacy.
primogeniture to African estates, • The Con protects human dignity and
entrenching racial disparity. equality, which directly influence how the
rules of intestacy are applied and
developed.
• CA expanded protections for all children.
• RCLSA expanded protection for African
estates.
Q: How was the protection of heirs in African customary estates expanded?
• Traditionally, customary succession was universal, patriarchal, and process-based, with the
eldest son or male relative succeeding as head of the household.
• Under apartheid, this system was distorted into a rigid rule of male primogeniture through the
BAA, which reduced diverse customs to a single fixed rule.
• Constitutional jurisprudence shifted this position: The courts struck down male
primogeniture and extended the ISA to all estates regardless of race.
• This culminated in the RCLSA, which unified customary succession with the general law of
intestate succession.
