LAW OF SUCCESSION SEMESTER 1 NOTES
Legal rules that regulate the devolution of a deceased persons estate upon one or more persons
Who is entitled to succeed the deceased? Who can inherit?
What is the extent of the benefits they are to receive?
What is the administrative process of deceased estate?
SOURCES OF SUCCESSION LAW:
- Wills act 7 of 1953
- Intestate succession act 81 of 1987
- Maintenance of surviving spouses act 27 of 1990
- Trust Property Control Act 57 of 1988
- Administration of Estates Act 66 of 1965
- Recognition of Customary Law of Succession and related Matters CAt 11 of 2009
- Common law and Case law
3 ways succession can take place:
1. Testate succession:
- Valid will
- Invalid will but will condoned in terms of s 2(3) of Wills Act
- Person = testator/testatrix
2. Intestate succession:
- No will when someone dies
- Cannot find will
- Invalid will and court cannot condone it
- = die intestate
- Rules then automatically apply to estate (blood relations, extended family, calculations of
portions)
3. Contract/agreement - successio ex contractu/pactum sucessorium
THE DECEASED ESTATE
Assets and liabilities of deceased person at time of death
Not only property, also debts
Can't sue or be sued
Heir can be individual, company or entity
Executor acts on behalf of the state (e.g., Money outstanding, executor approaches court on
behalf of estate)
N.O = Nomine oficio (acting in official capacity, executor)
Ownership of assets
Who owns before inherited?
Heirs obtain assets and ownership upon death of deceased – universal succession
= makes heirs responsible for liabilities – SA law deems this unfair, children carry your debts
, If you can't bear debts, then shouldn't bear ownership
Heir have vested personal right to estate
Personal right to transfer of the estate from the testator's executor
Once ownership transferred, vested personal right = real right
So, who owns before transfer?
- Master?
- Executor (bare dominium) - can’t sell or use, simply holding until transferred
Greenberg v Estate Greenberg
Joint will of husband and wife
Husband dies, wife survives
Leave property to son, wife has usufruct
When wife dies, property fully theirs
3 sons die before wife, leave to their children
Court must decide when did vesting take place? When husband dies or another time?
Court held vested personal right took place on death and subject to usufruct
Only get vested right upon death to claim delivery of property
‘while it is not yet decided in our law, Greenberg illustrates that we don’t have universal
succession. The executor has some kind of official capacity as owner. Heirs only have personal
vested right in those assets.’
Executor must see first if assets outweigh liabilities
Legal position of the EXECUTOR:
A person who is authorized to act under letters of executorship granted or signed and selaed by
the Master of the high court
Executor testamentary: Nominated by testator in valid will
Executor dative: dies without will, not named = master then appoints an executor (family
attorney, spouse)
If estate is less than R250 000, executor does not need to eb appointed
Someone just appointed to assist in winding up of estate – attorney etc.
This benefits estate as there would be no executor fees
Person chosen must act in good faith (fiduciary position)
Executor can appoint a co-executor – power of assumption
Master must agree to appoint this person, issues letter of executorship
What if executor makes a wrong distribution?
- Section 23(5) of admin of states act
- Can reclaim money of given too much accidentally
What if executor not acting in good faith, not carrying out duties, refuses to institute
proceedings to recover debts or make claims?
- Remove executor from position by bringing in application from high court
- Beneficiary can sue executor for outstanding debt – executor cited as nominal defendant
- Executors cede right of action to beneficiary (circumventing their obligations)
,ADIATION AND REPUDIATION
Beneficiary free to adiate or repudiate
Adiate: accept benefits
Repudiate: refuse benefit
No obligation either way
Why would a person repudiate?
- Personal reasons
- Onerous conditions attached to inheritance
- To reverse massing (2 or more testators mass the whole or part of their estates)
- Testators can allow for substitutes
- Otherwise, can fall back into estate, shared amongst other testate heirs
- May devolve in accordance with intestate succession if no residual heir
Adiation
- No formalities need to be met
- Automatically assumed you accept
- But if there is a condition or obligation, then written adiation needed
- To protect beneficiary of burden
Repudiation
- Always must be done in writing
- Can the assumed by conduct
- Express repudiation – only reversed by court if made in excusable ignorance of rights
Doctrine of election
Beneficiary must elect what they want to do
Cannot partially adiate or partially repudiate IF OBLIGATIONS ATTACHED
Cannot accept benefits without accepting obligations
If no burden, then can partially adiate and repudiate
Can an insolvent person refuse inheritance?
- Trustee cannot force insolvent person to accept inheritance if they wish to repudiate
- Does not cause prejudice to creditors
- Insolvent has limited legal capacity – retains right to accept or reject inheritance
- Right does not pass to trustee
DEATH AND SURVIVORSHIP
What do we consider death?
Traditional approach: heart and lungs stop working
Modern medical approach dies when no more brain activity
, Exception to the general rule (owner of estate must die)
1. presumption of death order
2. estate massing – couple put estate in one testate
- Surviving spouse treated as if they have died
Commorientes
Number of people are killed in same disaster
Who died first?
- Common law presumption: presumed that youngest died first (NO LONGER USED)
- English law: older person died first (NO LONGER USED)
- General rule today: if sequence can't be established, no presumption of who died first and no
presumption of simultaneous death
- Must use EX PARTE GRAHAM case to support simultaneous death – must consider facts to
determine if there was successive or simultaneous death
- Use graham case if you need to determine whther successive or simultaneuos
- Greyling: if husband and wife with joint will and clause in will that mentions dying
silmultaneuosly
- Simultaneous death means in the same incident (Greyling v Greyling 1978)
- EG. AND CLARITY ON SIMULTANEOUS DEATH
- Ex parte Graham There is no presumption as to the order of death in our law. When two people
die in the same disaster the court will look at the facts/evidence. If it is not possible to establish
who died first, the court will find that they died simultaneously
- Two persons who die in the same accident, cannot inherit from each other, because one has to
survive a person to be able to inherit from him/her. Survivorship is a precondition for inheriting.
- On the evidence, it is not clear who died first. Therefore, the court will find that Sheldon and
Missy died simultaneously.
- Sheldon’s will cannot be executed because Missy cannot inherit from him as she must be alive at
the time of inheriting. Sheldon’s estate will therefore devolve in terms of the law of intestate
succession and his mother and father will inherit his estate. Missy is survived by her husband and
he will inherit her estate in terms of her will.
- EG and CLARITY ON SUCCESSIVE
- If Missy survived Sheldon, she would have inherited as per Sheldon’s will.(NB successive death
in this instance). When she later died in hospital, her husband would essentially have inherited
Sheldon and Missy’s estate because Sheldon’s estate formed part of Missy’s)
SURVIVORSHIP
- Precondition to inheriting
- Must be someone alive to obtain rights
- Intestate: if heir predeceases the testator, heir to predeceased heir represents predeceased heir
(representation)
- Testate: same same but called substitute
- Nasciturus fiction: heir who has been conceived but not yet born alive, can they inherit
o Must have been conceived at the time of the devolution of the estate, must be born alive, must
be to their benefit
Legal rules that regulate the devolution of a deceased persons estate upon one or more persons
Who is entitled to succeed the deceased? Who can inherit?
What is the extent of the benefits they are to receive?
What is the administrative process of deceased estate?
SOURCES OF SUCCESSION LAW:
- Wills act 7 of 1953
- Intestate succession act 81 of 1987
- Maintenance of surviving spouses act 27 of 1990
- Trust Property Control Act 57 of 1988
- Administration of Estates Act 66 of 1965
- Recognition of Customary Law of Succession and related Matters CAt 11 of 2009
- Common law and Case law
3 ways succession can take place:
1. Testate succession:
- Valid will
- Invalid will but will condoned in terms of s 2(3) of Wills Act
- Person = testator/testatrix
2. Intestate succession:
- No will when someone dies
- Cannot find will
- Invalid will and court cannot condone it
- = die intestate
- Rules then automatically apply to estate (blood relations, extended family, calculations of
portions)
3. Contract/agreement - successio ex contractu/pactum sucessorium
THE DECEASED ESTATE
Assets and liabilities of deceased person at time of death
Not only property, also debts
Can't sue or be sued
Heir can be individual, company or entity
Executor acts on behalf of the state (e.g., Money outstanding, executor approaches court on
behalf of estate)
N.O = Nomine oficio (acting in official capacity, executor)
Ownership of assets
Who owns before inherited?
Heirs obtain assets and ownership upon death of deceased – universal succession
= makes heirs responsible for liabilities – SA law deems this unfair, children carry your debts
, If you can't bear debts, then shouldn't bear ownership
Heir have vested personal right to estate
Personal right to transfer of the estate from the testator's executor
Once ownership transferred, vested personal right = real right
So, who owns before transfer?
- Master?
- Executor (bare dominium) - can’t sell or use, simply holding until transferred
Greenberg v Estate Greenberg
Joint will of husband and wife
Husband dies, wife survives
Leave property to son, wife has usufruct
When wife dies, property fully theirs
3 sons die before wife, leave to their children
Court must decide when did vesting take place? When husband dies or another time?
Court held vested personal right took place on death and subject to usufruct
Only get vested right upon death to claim delivery of property
‘while it is not yet decided in our law, Greenberg illustrates that we don’t have universal
succession. The executor has some kind of official capacity as owner. Heirs only have personal
vested right in those assets.’
Executor must see first if assets outweigh liabilities
Legal position of the EXECUTOR:
A person who is authorized to act under letters of executorship granted or signed and selaed by
the Master of the high court
Executor testamentary: Nominated by testator in valid will
Executor dative: dies without will, not named = master then appoints an executor (family
attorney, spouse)
If estate is less than R250 000, executor does not need to eb appointed
Someone just appointed to assist in winding up of estate – attorney etc.
This benefits estate as there would be no executor fees
Person chosen must act in good faith (fiduciary position)
Executor can appoint a co-executor – power of assumption
Master must agree to appoint this person, issues letter of executorship
What if executor makes a wrong distribution?
- Section 23(5) of admin of states act
- Can reclaim money of given too much accidentally
What if executor not acting in good faith, not carrying out duties, refuses to institute
proceedings to recover debts or make claims?
- Remove executor from position by bringing in application from high court
- Beneficiary can sue executor for outstanding debt – executor cited as nominal defendant
- Executors cede right of action to beneficiary (circumventing their obligations)
,ADIATION AND REPUDIATION
Beneficiary free to adiate or repudiate
Adiate: accept benefits
Repudiate: refuse benefit
No obligation either way
Why would a person repudiate?
- Personal reasons
- Onerous conditions attached to inheritance
- To reverse massing (2 or more testators mass the whole or part of their estates)
- Testators can allow for substitutes
- Otherwise, can fall back into estate, shared amongst other testate heirs
- May devolve in accordance with intestate succession if no residual heir
Adiation
- No formalities need to be met
- Automatically assumed you accept
- But if there is a condition or obligation, then written adiation needed
- To protect beneficiary of burden
Repudiation
- Always must be done in writing
- Can the assumed by conduct
- Express repudiation – only reversed by court if made in excusable ignorance of rights
Doctrine of election
Beneficiary must elect what they want to do
Cannot partially adiate or partially repudiate IF OBLIGATIONS ATTACHED
Cannot accept benefits without accepting obligations
If no burden, then can partially adiate and repudiate
Can an insolvent person refuse inheritance?
- Trustee cannot force insolvent person to accept inheritance if they wish to repudiate
- Does not cause prejudice to creditors
- Insolvent has limited legal capacity – retains right to accept or reject inheritance
- Right does not pass to trustee
DEATH AND SURVIVORSHIP
What do we consider death?
Traditional approach: heart and lungs stop working
Modern medical approach dies when no more brain activity
, Exception to the general rule (owner of estate must die)
1. presumption of death order
2. estate massing – couple put estate in one testate
- Surviving spouse treated as if they have died
Commorientes
Number of people are killed in same disaster
Who died first?
- Common law presumption: presumed that youngest died first (NO LONGER USED)
- English law: older person died first (NO LONGER USED)
- General rule today: if sequence can't be established, no presumption of who died first and no
presumption of simultaneous death
- Must use EX PARTE GRAHAM case to support simultaneous death – must consider facts to
determine if there was successive or simultaneous death
- Use graham case if you need to determine whther successive or simultaneuos
- Greyling: if husband and wife with joint will and clause in will that mentions dying
silmultaneuosly
- Simultaneous death means in the same incident (Greyling v Greyling 1978)
- EG. AND CLARITY ON SIMULTANEOUS DEATH
- Ex parte Graham There is no presumption as to the order of death in our law. When two people
die in the same disaster the court will look at the facts/evidence. If it is not possible to establish
who died first, the court will find that they died simultaneously
- Two persons who die in the same accident, cannot inherit from each other, because one has to
survive a person to be able to inherit from him/her. Survivorship is a precondition for inheriting.
- On the evidence, it is not clear who died first. Therefore, the court will find that Sheldon and
Missy died simultaneously.
- Sheldon’s will cannot be executed because Missy cannot inherit from him as she must be alive at
the time of inheriting. Sheldon’s estate will therefore devolve in terms of the law of intestate
succession and his mother and father will inherit his estate. Missy is survived by her husband and
he will inherit her estate in terms of her will.
- EG and CLARITY ON SUCCESSIVE
- If Missy survived Sheldon, she would have inherited as per Sheldon’s will.(NB successive death
in this instance). When she later died in hospital, her husband would essentially have inherited
Sheldon and Missy’s estate because Sheldon’s estate formed part of Missy’s)
SURVIVORSHIP
- Precondition to inheriting
- Must be someone alive to obtain rights
- Intestate: if heir predeceases the testator, heir to predeceased heir represents predeceased heir
(representation)
- Testate: same same but called substitute
- Nasciturus fiction: heir who has been conceived but not yet born alive, can they inherit
o Must have been conceived at the time of the devolution of the estate, must be born alive, must
be to their benefit
