SUCCESSION: Section 1
INTRODUCTION
1.1 The aims and objectives of the Law of Succession; key concepts; and a broad overview of the law of
succession and administration of deceased estates:
Article “The Socio-Economic Foundations of the Law of Succession”
Textbook pages 1-15
1.2 The deceased estate: legal personality or otherwise of the deceased estate and ownership of estate assets:
Greenberg v Estate Greenberg
1.3 The legal position of the executor:
Textbook pages 264-265
1.4. Adiation and Repudiation of inheritance:
1.4.1 Express adiation no longer required
1.4.2 Is repudiation of an inheritance a voidable disposition in terms of the Insolvency Act?
Textbook pages 51-53
1.5 Death and survivorship:
1.5.1 Death
Textbook pages 15-17
1.5.2 Survivorship
1.5.2.1 Survivorship, a precondition for inheriting
1.5.2.2 The nasciturus fiction, the exemption to survivorship
Section 2(d)(1)(c) of the Wills Act
Textbook pages 19-20
1.5.2.3 Commorientes
Ex parte Graham
Textbook pages 17-18
1.6 Vesting and enforcement rights in brief
1.6.1 The distinction between dies cedit and dies venit and the exact moment when the ius in personam ad rem
acquirendam arises.
1.6.2 The purpose and importance of dies cedit and dies venit
Textbook pages 18-19
* This includes only prescribed readings, check course outline for recommended reading.
, 1.1 The aims and objectives of the Law of Succession; key concepts; and a
broad overview of the law of succession and administration of deceased estates:
Article “The Socio-Economic Foundations of the Law of Succession”
Textbook pages 1-15
The Socio-Economic Foundations of the Law of Succession
1. INTRODUCTION
The study of the law of succession seldom focuses on the rich social and economic dynamics that underlie this branch of
law. These dynamics are fundamental in answering questions such as; what is the basic function of the law of
succession? What is the relationship between testate and intestate succession? What are the basic principles underlying
testate and intestate succession? What is the importance of ‘freedom of testation’ and how can limitations to it be
explained. This paper aims to examine the influence of social and economic fundamentals on the law of succession.
2. BASIC FUNCTION OF THE LAW OF SUCCESSION
1. General
Any property system must have rules in place to solve the problem of distribution of property over time, because the
owners of property eventually die. The key question to ask in finding a feasible solution to this problem is; what is the
basic function of the law of succession?
2. Social factors influencing the law of succession
The concept of the family is intimately linked with the social function of the law of succession which stems from the widely
shared belief that it is an important social unit, worthy of protection and preservation. The law of succession attempts to
fulfill this role by (a) intestate succession; drawing the circle of potential heirs as small as possible, and (b) testate
succession; by imposing restrictions on the freedom of testation (‘principle of forced succession’). There are also other
important social underpinnings on the law of succession and in general it can be acknowledged that the law of succession
grows and becomes more complex as society does. Wealth, age, divorce rate, co-habitation (including same-sex
relationships) among others all are social factors influencing the law of succession.
3. Economic factors influencing the law of succession
Freedom of testation (as opposed to forced testation) embodies the economic principle of a gift as it exercises the free will
of the property holder. Succession is, economically speaking, a process of wealth transmission and thus changes in the
structure of society’s wealth have profound effects on the operation of the law. Private sector wealth (formerly dominated
by land) now has two new features, financial assets (e.g. stocks, bonds, bank deposits etc.) and human capital (relevant
skills and knowledge). The nature of modern society means that intergenerational transfers are now dominated by
investment on education (human capital) because (a) it is viewed as fundamentally important to success and (b) it has
become enormously expensive. Increasing life expectancy has also had an important influence on wealth transfer. The
increasing tendency of people to outlive their period of productive employment means that after retirement a period of
dissaving occurs and ‘pension wealth’ (predominantly financial assets) is eroded until death leading to the result that
‘transfer on death’ is ceasing to be the fundamental intergenerational transmission of wealth (of the broad middle class).
3. FREEDOM OF TESTAT ION
1. The Principle
It is said to be the most obvious manifestation of private autonomy and has been accepted into South African law as one
of the founding principles of the law of testate succession. Various devices are employed to protect this freedom such as
strict formalities required in execution (to prevent fraud), measures protecting freedom form ‘undue influence’.
2. Restrictions on the freedom of testation
INTRODUCTION
1.1 The aims and objectives of the Law of Succession; key concepts; and a broad overview of the law of
succession and administration of deceased estates:
Article “The Socio-Economic Foundations of the Law of Succession”
Textbook pages 1-15
1.2 The deceased estate: legal personality or otherwise of the deceased estate and ownership of estate assets:
Greenberg v Estate Greenberg
1.3 The legal position of the executor:
Textbook pages 264-265
1.4. Adiation and Repudiation of inheritance:
1.4.1 Express adiation no longer required
1.4.2 Is repudiation of an inheritance a voidable disposition in terms of the Insolvency Act?
Textbook pages 51-53
1.5 Death and survivorship:
1.5.1 Death
Textbook pages 15-17
1.5.2 Survivorship
1.5.2.1 Survivorship, a precondition for inheriting
1.5.2.2 The nasciturus fiction, the exemption to survivorship
Section 2(d)(1)(c) of the Wills Act
Textbook pages 19-20
1.5.2.3 Commorientes
Ex parte Graham
Textbook pages 17-18
1.6 Vesting and enforcement rights in brief
1.6.1 The distinction between dies cedit and dies venit and the exact moment when the ius in personam ad rem
acquirendam arises.
1.6.2 The purpose and importance of dies cedit and dies venit
Textbook pages 18-19
* This includes only prescribed readings, check course outline for recommended reading.
, 1.1 The aims and objectives of the Law of Succession; key concepts; and a
broad overview of the law of succession and administration of deceased estates:
Article “The Socio-Economic Foundations of the Law of Succession”
Textbook pages 1-15
The Socio-Economic Foundations of the Law of Succession
1. INTRODUCTION
The study of the law of succession seldom focuses on the rich social and economic dynamics that underlie this branch of
law. These dynamics are fundamental in answering questions such as; what is the basic function of the law of
succession? What is the relationship between testate and intestate succession? What are the basic principles underlying
testate and intestate succession? What is the importance of ‘freedom of testation’ and how can limitations to it be
explained. This paper aims to examine the influence of social and economic fundamentals on the law of succession.
2. BASIC FUNCTION OF THE LAW OF SUCCESSION
1. General
Any property system must have rules in place to solve the problem of distribution of property over time, because the
owners of property eventually die. The key question to ask in finding a feasible solution to this problem is; what is the
basic function of the law of succession?
2. Social factors influencing the law of succession
The concept of the family is intimately linked with the social function of the law of succession which stems from the widely
shared belief that it is an important social unit, worthy of protection and preservation. The law of succession attempts to
fulfill this role by (a) intestate succession; drawing the circle of potential heirs as small as possible, and (b) testate
succession; by imposing restrictions on the freedom of testation (‘principle of forced succession’). There are also other
important social underpinnings on the law of succession and in general it can be acknowledged that the law of succession
grows and becomes more complex as society does. Wealth, age, divorce rate, co-habitation (including same-sex
relationships) among others all are social factors influencing the law of succession.
3. Economic factors influencing the law of succession
Freedom of testation (as opposed to forced testation) embodies the economic principle of a gift as it exercises the free will
of the property holder. Succession is, economically speaking, a process of wealth transmission and thus changes in the
structure of society’s wealth have profound effects on the operation of the law. Private sector wealth (formerly dominated
by land) now has two new features, financial assets (e.g. stocks, bonds, bank deposits etc.) and human capital (relevant
skills and knowledge). The nature of modern society means that intergenerational transfers are now dominated by
investment on education (human capital) because (a) it is viewed as fundamentally important to success and (b) it has
become enormously expensive. Increasing life expectancy has also had an important influence on wealth transfer. The
increasing tendency of people to outlive their period of productive employment means that after retirement a period of
dissaving occurs and ‘pension wealth’ (predominantly financial assets) is eroded until death leading to the result that
‘transfer on death’ is ceasing to be the fundamental intergenerational transmission of wealth (of the broad middle class).
3. FREEDOM OF TESTAT ION
1. The Principle
It is said to be the most obvious manifestation of private autonomy and has been accepted into South African law as one
of the founding principles of the law of testate succession. Various devices are employed to protect this freedom such as
strict formalities required in execution (to prevent fraud), measures protecting freedom form ‘undue influence’.
2. Restrictions on the freedom of testation
