ERF 222 (LoS – Law of Succession)
CASE
LEGISLATION
DEFINITION
EXAMPLE
STUDY UNIT 1
CHAPTER 1: INTRODUCTION
General background to law of succession
LoS (deals with who gets what) –
o Comprises legal rules that control transfer of those assets of a
deceased that are eligible for distribution to beneficiaries or
those assets of another person over which the deceased has
the power of disposal.
Purpose –
o Economic function = regulates transfer of wealth through
freedom of succession (common law).
o Social function = preservation of family unit, allows offspring to
step into shoes of deceased (customary law).
Freedom of testation –
o Freedom to dispose of assets within your discretion.
o Protected by s10 & s25 of Consti.
o Not absolute/unlimited (limitations by Consti, common and
statutory law).
Deceased estate = Estate someone leaves behind when they die
(distributed/devolved among heirs).
Estate = assets and liabilities (liabilities must be paid from assets and
cannot be devolved among beneficiaries).
, Beneficiary –
o Persons to whom assets of deceased is transferred ito
succession.
o Legatee – person who receives SPECIFIC asset (benefit =
legacy).
o Heir – person whose benefit/portion must still be determined, it
is not clear from simple reading of will (benefit = inheritance).
o Legatee stronger position than heir when selling assets to pay
liabilities.
Succession rules govern –
o HOW devolution takes place.
o IDENTIFY beneficiaries (those entitled to inherit).
o EXTENT of benefits (inheritance/legacies).
o RIGHTS AND DUTIES that persons may have in deceased
estate.
o Administration process of deceased estate.
Succession takes place in 3 ways –
1. In accordance with valid will (testamentary succession).
2. Through operation of law of intestate succession in absence of
valid will (testate succession).
3. In terms of contract (general rule – succession cannot take
place in terms of contract).
Pure bequest = no conditions, no postponement of dies venit.
Suspensive condition = must fulfill condition before right to claim can
be enforced (dies venit).
Time clause –
o Dies venit will only occur once beneficiary reaches certain age.
, o If dead before reaching that age they still have the dies cedit
and can therefore put that upcoming benefit in their estate but it
will only be dies venit one they were supposed to reach that
age.
Executor –
o Charged with administration of deceased estate after death.
o Nominated by testator in will.
o Winds up estate: pay liabilities, transfers assets that remain to
beneficiaries.
o Acts under supervision of Master.
o Entitled to 3.5% gross value of estate as a fee.
Law of succession in legal system
Material rules of LoS (common and customary law rules) operate in
PRIVATE sphere.
Dual character of LoS
No recognition of customary law during early period of colonialism,
only after 1806 (British rule).
British = policy of non-interference with customs of indigenous people
only if customs were not repugnant to public policy and natural
justice.
1927 = Black Administration Act managed indigenous affairs.
NOW = customary law on same footing as common law.
Modern SA law is mixed, pluralistic legal system –
o Conglomeration of Roman Dutch law (influenced by common
law and adapted by legislation and case law) and,
o Customary law.
, LoS is thus consisting of 2 main branches –
o 1. Common LoS that comprises testamentary and intestate
succession rules.
o 2. Customary rules of succession (only intestate succession
rules).
o Considerations of these 2 branches –
Customary law subjects to 2 provisos: 1. Must be
compatible with Consti 2. May be amended by legislation.
Decision of whether common or customary law is
applicable to deceased estate is made by applying choice
of rules derived from statute/case law.
S1(3) of Law of Evidence Act provides rules dealing with
conflict between different customary laws (as they differ
from various traditional communities).
Differences between common and customary LoS based
on societal and economic considerations (customary LoS =
preservation of family unit and community after death,
common Los = regulate transfer of wealth and more
freedom to dispose deceased property.
Choice of law rules
Conflicting rights and obligations –
o Relevant choice of rules derived from statute/case law.
Testate law of succession –
o Where there is a valid will.
o NO WILL in customary law.
o Dies cedit and dies venit depend on intention of testator.
Intestate succession –
CASE
LEGISLATION
DEFINITION
EXAMPLE
STUDY UNIT 1
CHAPTER 1: INTRODUCTION
General background to law of succession
LoS (deals with who gets what) –
o Comprises legal rules that control transfer of those assets of a
deceased that are eligible for distribution to beneficiaries or
those assets of another person over which the deceased has
the power of disposal.
Purpose –
o Economic function = regulates transfer of wealth through
freedom of succession (common law).
o Social function = preservation of family unit, allows offspring to
step into shoes of deceased (customary law).
Freedom of testation –
o Freedom to dispose of assets within your discretion.
o Protected by s10 & s25 of Consti.
o Not absolute/unlimited (limitations by Consti, common and
statutory law).
Deceased estate = Estate someone leaves behind when they die
(distributed/devolved among heirs).
Estate = assets and liabilities (liabilities must be paid from assets and
cannot be devolved among beneficiaries).
, Beneficiary –
o Persons to whom assets of deceased is transferred ito
succession.
o Legatee – person who receives SPECIFIC asset (benefit =
legacy).
o Heir – person whose benefit/portion must still be determined, it
is not clear from simple reading of will (benefit = inheritance).
o Legatee stronger position than heir when selling assets to pay
liabilities.
Succession rules govern –
o HOW devolution takes place.
o IDENTIFY beneficiaries (those entitled to inherit).
o EXTENT of benefits (inheritance/legacies).
o RIGHTS AND DUTIES that persons may have in deceased
estate.
o Administration process of deceased estate.
Succession takes place in 3 ways –
1. In accordance with valid will (testamentary succession).
2. Through operation of law of intestate succession in absence of
valid will (testate succession).
3. In terms of contract (general rule – succession cannot take
place in terms of contract).
Pure bequest = no conditions, no postponement of dies venit.
Suspensive condition = must fulfill condition before right to claim can
be enforced (dies venit).
Time clause –
o Dies venit will only occur once beneficiary reaches certain age.
, o If dead before reaching that age they still have the dies cedit
and can therefore put that upcoming benefit in their estate but it
will only be dies venit one they were supposed to reach that
age.
Executor –
o Charged with administration of deceased estate after death.
o Nominated by testator in will.
o Winds up estate: pay liabilities, transfers assets that remain to
beneficiaries.
o Acts under supervision of Master.
o Entitled to 3.5% gross value of estate as a fee.
Law of succession in legal system
Material rules of LoS (common and customary law rules) operate in
PRIVATE sphere.
Dual character of LoS
No recognition of customary law during early period of colonialism,
only after 1806 (British rule).
British = policy of non-interference with customs of indigenous people
only if customs were not repugnant to public policy and natural
justice.
1927 = Black Administration Act managed indigenous affairs.
NOW = customary law on same footing as common law.
Modern SA law is mixed, pluralistic legal system –
o Conglomeration of Roman Dutch law (influenced by common
law and adapted by legislation and case law) and,
o Customary law.
, LoS is thus consisting of 2 main branches –
o 1. Common LoS that comprises testamentary and intestate
succession rules.
o 2. Customary rules of succession (only intestate succession
rules).
o Considerations of these 2 branches –
Customary law subjects to 2 provisos: 1. Must be
compatible with Consti 2. May be amended by legislation.
Decision of whether common or customary law is
applicable to deceased estate is made by applying choice
of rules derived from statute/case law.
S1(3) of Law of Evidence Act provides rules dealing with
conflict between different customary laws (as they differ
from various traditional communities).
Differences between common and customary LoS based
on societal and economic considerations (customary LoS =
preservation of family unit and community after death,
common Los = regulate transfer of wealth and more
freedom to dispose deceased property.
Choice of law rules
Conflicting rights and obligations –
o Relevant choice of rules derived from statute/case law.
Testate law of succession –
o Where there is a valid will.
o NO WILL in customary law.
o Dies cedit and dies venit depend on intention of testator.
Intestate succession –
