2. INTESTATE SUCCESSION
2.1 Introduction and terminology
• Textbook pp. 21-23.
2.2 Vesting in terms of the law of intestate succession
• Harris v Assumed Administrator, Estate MacGregor
• Textbook pp. 23-24.
2.3 Extra- marital children (incl. incestuous children), children conceived by artificial insemination and children
born of surrogacy arrangements
• Section 1(2) of the Intestate Succession Act
• Textbook pp. 25-26.
2.4 Adopted children
• Section 1(4)(e) read with s 1(5) of the Intestate Succession Act
• Textbook p. 26.
2.5 Persons involved in same sex relationships; heterosexual life partnerships; religious and customary unions
• Daniels v Campbell
• Robinson v Volks NO
• Bhe v Magistrate, Khayelitsha
• Gory v Kolver NO
• Hassam v Jacobs NO
• Govender v Ragavayah
• Textbook pp. 26-29.
2.6 The anatomy of the Intestate Succession Act 81 of 1987
2.7 The order of intestate inheritance/succession in terms of ISA
• Section 1 of ISA.
• Bhe v Magistrate, Khayelitsha
• Textbook pp. 30-38.
2.8 Renunciation and repudiation of intestate inheritance
2.9 Disqualification from inheriting
• Sections 1(6)-(7) of ISA.
• Textbook pp. 38-40.
,2.1 Introduction and terminology:
A. Introduction
• Law of Intestate succession = the legal rules that determine how succession should take place in
cases where the deceased has failed to regulate succession by way of a valid will or contract.
• Intestate succession = estate not disposed of effectively by means of a valid will or contract.
• Nemo pro parte rule is no longer part of our law. This is a roman maxim that states that a person
cannot die partly testate and partly intestate. In Harris, this did occur.
In South African law, it is possible for a deceased to die wholly testate, wholly intestate, or partly testate
and partly intestate.
Person dies WHOLLY intestate when:
a) The deceased dies without leaving a valid will.
b) There is will but the will fails. The will does not comply with formalities in terms of s 2 of WA and the will
cannot be condoned in terms of s 2(3) of WA. Very strict formalities are structured in order to prevent fraud
or coercion into making a will.
c) There is a will but the testator performs an act of revocation. The act of revocation implies that he no
longer intends to be bound by the terms of the will.
d) There is a valid will but it is subsequently declared invalid by the court: vague, against public policy
or testator does not have the testamentary or mental capacity.
e) There is a valid will but the beneficiaries are unable to adiate (heir predeceased the testator or
onerous condition attached) and no substitutes appointed.
Person dies PARTIALLY intestate when:
a) There is a valid will, which only disposes of a portion of the estate.
b) A beneficiary fails to adiate + will provide for no substitutes + statutory representation does not
apply and the doctrine of accrual does not apply.
c) Condition attached to a benefit + beneficiary refuses to adiate + no substitute provided for this
eventuality.
d) Provisions of the will fail for not complying with the black- letter principles of the law of succession.
* Presumption against intestacy: Reason- freedom of testation and ensuring a person’s wishes are fulfilled.
It only operates when somebody creates a will and something arises that could create intestacy – the court
will read the provisions as being testate succession rather than intestacy,
• Most important sources for the modern rules relating to intestate succession
1. Intestate Succession Act 81 of 1987 (18 March 1988) as amended by the Law of Succession
Amendment Act 43 of 1992 (1 October 1992) * applies to common law.
, 2. Reform of Customary Law of Succession Act and Regulation of Related Matters Act 11 of 2009
*applies to customary law, but read with ISA.
3. Children’s Act 38 of 2005
4. Common law (i.e. case law):
(i) Daniels v Campbell
(ii) Robinson v Volks NO
(iii) Bhe v Magistrate, Khayelitsha
(iv) Gory v Kolver NO
(v) Hassam v Jacobs NO
(vi) Govender v Ragavayah
* If the deceased lived under the common law system, only the ISA applies. However, if the deceased lived
under the customary law system, the ISA read with the RCLSA is applicable.
B. Terminology
“Blood relations”
Consanguinity
Direct line Collateral line
Ascendants + Full or half blood.
Descendants.
* Estate does not climb (Voet).
• Descendant- common law descendants include the lineal descendants (downward) of the deceased.
Ascendants- ancestors of the deceased i.e. anyone in the ascending line of relationship.
• Collateral- a person who is related to the deceased because he/she has the same ancestor as the
deceased. E.g. siblings (half or full, not including step), nice/nephew, cousins, uncle/aunt
• Consanguinity –related by blood; either directly (ascendants and descendants) or collaterally
• ‘Parentela’- descendant/ascendant group and their descendants.
− 1st parentela = deceased + descendants + spouse
− 2nd parentela = deceased’s parents + their descendants whether related to the deceased in
full or half blood.
− 3rd parentela = deceased’s grandparents and their descendants whether related to the
deceased in full or half blood.
− 4th parentela = deceased’s great grandparents and their descendants whether related to the
deceased in full and half blood.
• ‘Representation’- heir of the deceased does not take an inheritance or is unable to take an
inheritance and inheritance is taken by one of the descendants of the heir.
2.1 Introduction and terminology
• Textbook pp. 21-23.
2.2 Vesting in terms of the law of intestate succession
• Harris v Assumed Administrator, Estate MacGregor
• Textbook pp. 23-24.
2.3 Extra- marital children (incl. incestuous children), children conceived by artificial insemination and children
born of surrogacy arrangements
• Section 1(2) of the Intestate Succession Act
• Textbook pp. 25-26.
2.4 Adopted children
• Section 1(4)(e) read with s 1(5) of the Intestate Succession Act
• Textbook p. 26.
2.5 Persons involved in same sex relationships; heterosexual life partnerships; religious and customary unions
• Daniels v Campbell
• Robinson v Volks NO
• Bhe v Magistrate, Khayelitsha
• Gory v Kolver NO
• Hassam v Jacobs NO
• Govender v Ragavayah
• Textbook pp. 26-29.
2.6 The anatomy of the Intestate Succession Act 81 of 1987
2.7 The order of intestate inheritance/succession in terms of ISA
• Section 1 of ISA.
• Bhe v Magistrate, Khayelitsha
• Textbook pp. 30-38.
2.8 Renunciation and repudiation of intestate inheritance
2.9 Disqualification from inheriting
• Sections 1(6)-(7) of ISA.
• Textbook pp. 38-40.
,2.1 Introduction and terminology:
A. Introduction
• Law of Intestate succession = the legal rules that determine how succession should take place in
cases where the deceased has failed to regulate succession by way of a valid will or contract.
• Intestate succession = estate not disposed of effectively by means of a valid will or contract.
• Nemo pro parte rule is no longer part of our law. This is a roman maxim that states that a person
cannot die partly testate and partly intestate. In Harris, this did occur.
In South African law, it is possible for a deceased to die wholly testate, wholly intestate, or partly testate
and partly intestate.
Person dies WHOLLY intestate when:
a) The deceased dies without leaving a valid will.
b) There is will but the will fails. The will does not comply with formalities in terms of s 2 of WA and the will
cannot be condoned in terms of s 2(3) of WA. Very strict formalities are structured in order to prevent fraud
or coercion into making a will.
c) There is a will but the testator performs an act of revocation. The act of revocation implies that he no
longer intends to be bound by the terms of the will.
d) There is a valid will but it is subsequently declared invalid by the court: vague, against public policy
or testator does not have the testamentary or mental capacity.
e) There is a valid will but the beneficiaries are unable to adiate (heir predeceased the testator or
onerous condition attached) and no substitutes appointed.
Person dies PARTIALLY intestate when:
a) There is a valid will, which only disposes of a portion of the estate.
b) A beneficiary fails to adiate + will provide for no substitutes + statutory representation does not
apply and the doctrine of accrual does not apply.
c) Condition attached to a benefit + beneficiary refuses to adiate + no substitute provided for this
eventuality.
d) Provisions of the will fail for not complying with the black- letter principles of the law of succession.
* Presumption against intestacy: Reason- freedom of testation and ensuring a person’s wishes are fulfilled.
It only operates when somebody creates a will and something arises that could create intestacy – the court
will read the provisions as being testate succession rather than intestacy,
• Most important sources for the modern rules relating to intestate succession
1. Intestate Succession Act 81 of 1987 (18 March 1988) as amended by the Law of Succession
Amendment Act 43 of 1992 (1 October 1992) * applies to common law.
, 2. Reform of Customary Law of Succession Act and Regulation of Related Matters Act 11 of 2009
*applies to customary law, but read with ISA.
3. Children’s Act 38 of 2005
4. Common law (i.e. case law):
(i) Daniels v Campbell
(ii) Robinson v Volks NO
(iii) Bhe v Magistrate, Khayelitsha
(iv) Gory v Kolver NO
(v) Hassam v Jacobs NO
(vi) Govender v Ragavayah
* If the deceased lived under the common law system, only the ISA applies. However, if the deceased lived
under the customary law system, the ISA read with the RCLSA is applicable.
B. Terminology
“Blood relations”
Consanguinity
Direct line Collateral line
Ascendants + Full or half blood.
Descendants.
* Estate does not climb (Voet).
• Descendant- common law descendants include the lineal descendants (downward) of the deceased.
Ascendants- ancestors of the deceased i.e. anyone in the ascending line of relationship.
• Collateral- a person who is related to the deceased because he/she has the same ancestor as the
deceased. E.g. siblings (half or full, not including step), nice/nephew, cousins, uncle/aunt
• Consanguinity –related by blood; either directly (ascendants and descendants) or collaterally
• ‘Parentela’- descendant/ascendant group and their descendants.
− 1st parentela = deceased + descendants + spouse
− 2nd parentela = deceased’s parents + their descendants whether related to the deceased in
full or half blood.
− 3rd parentela = deceased’s grandparents and their descendants whether related to the
deceased in full or half blood.
− 4th parentela = deceased’s great grandparents and their descendants whether related to the
deceased in full and half blood.
• ‘Representation’- heir of the deceased does not take an inheritance or is unable to take an
inheritance and inheritance is taken by one of the descendants of the heir.
