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LAW OF SUCESSION
REVISION STUDY PACK
, 1
0784683517
.
REVISION STUDY PACK
Define the law of succession. (2)
The law of succession is a branch of private law.(1) The law of succession comprises
those legal rules or norms which regulate the devolution of a deceased person's
property upon one or more persons.(1) Thus the law of succession concerns itself with
what happens to a deceased person's estate after his/her death.(1)
(b)Distinguish between an "estate" and the "residue of an estate". (4)
The testator's estate consists of the assets (½) and liabilities.(½)
The residue of the estate refers to that part (½) of the deceased's estate which remains
after the payment of funeral expenses,(½) administration costs,(½) tax (½) (if any), the
testator's debts (½) and the legacies.(½). (4)
N.B Section 1(1)(c) of the Intestate Succession Act 81 of 1987
Section 1(1)(c) of the Intestate Succession Act 81 of 1987 provides that if a person dies
intestate and is survived by a spouse as well as a descendant, the spouse shall inherit either a
child’s share of the intestate estate or so much of the intestate estate as does not exceed the
amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is
the greater, and the descendant shall inherit any residue of the intestate estate. Until
November 2014 the amount determined by the Minister was R125 000. This amount was
increased in November 2014 to R250 000 by virtue of Government Gazette 38238. We will
refer to this amount as the statutory amount.
This means that if a person dies intestate and is survived by a spouse and descendants, the
spouse will inherit either a child’s share or the statutory amount (R250 000) of the intestate
estate and the descendants will inherit the residue. To calculate a child’s share/portion, the
value of the estate is divided by the number of children who either survive the deceased, or
who predeceased the deceased but are survived by their descendants, plus the number of
spouses left by the deceased (see section 1(4)(f)).
Xander and Wanda were married out of community of property with inclusion of the
accrual system. They had three adult sons, Ben, Charl and David. David was
predeceased. Before his death, David had been married to Zola. David and Zola had a
“The expert in anything was once a beginner”
, 2
child, Elize. David also had a child Frank from a previous relationship with Petro. David
and Petro had never been married. Zola had an adult child, Gavin, from a previous
marriage. Xander dies intestate and the value of his estate amounts to R900 000.
Xander's estate has to pay R100 000 accrual to Wanda.
Calculate how Xander's estate is going to devolve, giving reasons for your calculations.
Solution 2: Statutory amount = R250 000.
1. Xander (X)'s estate has to pay R100 000 to Wanda (W) in terms of matrimonial property
law (the accrual that she was entitled to). X's intestate estate available for distribution therefore
amounts to R800 000 (R900 000 – R100 000 = R800 000).
2. X had a spouse and children - therefore section 1(1)(c) of the Intestate Succession Act
81 of 1987 applies in terms of which the spouse inherits either a child's share or R250 000
(the statutory amount) whichever is the greater and the children share the rest of the estate
equally.
3. A child's share is calculated by dividing the value of the intestate estate by the number
of children of the deceased 4. who have either survived him,
5. or have predeceased him but are survived by their descendants,
6. plus the number of surviving spouses (in this case only W).
7. To calculate the child's share we therefore count Ben (B), Charl (C) and David (D) (since D
left children to represent him) plus W (B, C, D en W = 4), and divide R800 000 by 4. This
means a child's share amounts to R200 000.
8. Since a child’s share of R200 000 is less than the statutory amount of R250 000, W inherits
the amount of R250 000.
9. After X inherits R250 000, R550 000 remains in X’s intestate estate to be divided equally
amongst his children. X's children, B, C and D (represented by his children), inherit the
residue in equal shares (R550 000 ÷ 3 = R183 333).
10. B and C each inherit R183 333 and E and F inherit D's share equally, each inheriting R91
666.
11. F may inherit even though he was born of unmarried parents, because in terms of the
Intestate Succession Act no difference should be made between children born of married
or unmarried parents.
12. Gavin (G) may not inherit from X, because he is not a blood relation of D but a step-child.
(I) Section 2(3) of the Wills Act 7 of 1953 may only be applied if the deceased
has personally drafted or executed the particular document. (1)
Bekker v Naude 2003 (5) SA 173 (SCA) (1)
A will may be rectified by the insertion of words. (1)
(ii)
Botha v The Master 1976 (3) SA 597 (OK) (1)
“The expert in anything was once a beginner”
, 3
(iii) A
condition in a will, which has the effect of breaking up an existing
marriage, is valid where such effect is purely incidental and did not form part
of the testator’s intention. (1)
Barclays Bank DC & O v Anderson 1959 2 SA 478 (T) (1)
(iv) A person who negligently caused the death of the testator may not inherit
from the testator.
(1)
Casey v The Master 1992 (4) SA 505 (N) (1)
Question 2
Read the following set of facts and then answer the questions that follow: Mary
and John are siblings. In his will John appointed his sister Mary to inherit his
whole estate. In her will Mary appointed her husband Peter to be her heir. Mary
and John are killed in the same car accident, and no evidence exists as to who
died first. John leaves behind both his parents. Mary leaves behind her
parents and her husband Peter. (a) Who will inherit John and
Mary's respective estates? Briefly explain your answer. (7)
When two people die in the same disaster and it is not possible to establish who died first,
the court will find that they died simultaneously.(1) Ex parte Graham (1) held that
in our law no presumption as to the order of death exists.(1) That means that 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.(1) John’s will cannot be given
effect to because Mary cannot inherit from him.(1) John’s estate will therefore devolve
in terms of the law of intestate succession (1) and his mother and father will inherit his
estate. (1) Mary is survived by her husband and he will inherit her estate in terms of her
will. (1)
(b) Would it have made a difference to your answer if John died at the scene of
the accident and Mary died two hours later in hospital? Briefly explain your
answer.
Yes. If Mary survived John, she would have inherited John’s estate as indicated in his will
(1), and her husband would then have inherited both her and John’s estates as John’s
estate would have formed part of her estate. (1). John’s parents would then not have
inherited. (1) (3)
Question 3
(a) Explain what a "testamentary writing" is as defined by the court in Ex parte
Davies 1957 (3) SA 471 (N). (3)
A testamentary writing is a document which defines any one of the three
essential elements of a bequest, namely:
“The expert in anything was once a beginner”
LAW OF SUCESSION
REVISION STUDY PACK
, 1
0784683517
.
REVISION STUDY PACK
Define the law of succession. (2)
The law of succession is a branch of private law.(1) The law of succession comprises
those legal rules or norms which regulate the devolution of a deceased person's
property upon one or more persons.(1) Thus the law of succession concerns itself with
what happens to a deceased person's estate after his/her death.(1)
(b)Distinguish between an "estate" and the "residue of an estate". (4)
The testator's estate consists of the assets (½) and liabilities.(½)
The residue of the estate refers to that part (½) of the deceased's estate which remains
after the payment of funeral expenses,(½) administration costs,(½) tax (½) (if any), the
testator's debts (½) and the legacies.(½). (4)
N.B Section 1(1)(c) of the Intestate Succession Act 81 of 1987
Section 1(1)(c) of the Intestate Succession Act 81 of 1987 provides that if a person dies
intestate and is survived by a spouse as well as a descendant, the spouse shall inherit either a
child’s share of the intestate estate or so much of the intestate estate as does not exceed the
amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is
the greater, and the descendant shall inherit any residue of the intestate estate. Until
November 2014 the amount determined by the Minister was R125 000. This amount was
increased in November 2014 to R250 000 by virtue of Government Gazette 38238. We will
refer to this amount as the statutory amount.
This means that if a person dies intestate and is survived by a spouse and descendants, the
spouse will inherit either a child’s share or the statutory amount (R250 000) of the intestate
estate and the descendants will inherit the residue. To calculate a child’s share/portion, the
value of the estate is divided by the number of children who either survive the deceased, or
who predeceased the deceased but are survived by their descendants, plus the number of
spouses left by the deceased (see section 1(4)(f)).
Xander and Wanda were married out of community of property with inclusion of the
accrual system. They had three adult sons, Ben, Charl and David. David was
predeceased. Before his death, David had been married to Zola. David and Zola had a
“The expert in anything was once a beginner”
, 2
child, Elize. David also had a child Frank from a previous relationship with Petro. David
and Petro had never been married. Zola had an adult child, Gavin, from a previous
marriage. Xander dies intestate and the value of his estate amounts to R900 000.
Xander's estate has to pay R100 000 accrual to Wanda.
Calculate how Xander's estate is going to devolve, giving reasons for your calculations.
Solution 2: Statutory amount = R250 000.
1. Xander (X)'s estate has to pay R100 000 to Wanda (W) in terms of matrimonial property
law (the accrual that she was entitled to). X's intestate estate available for distribution therefore
amounts to R800 000 (R900 000 – R100 000 = R800 000).
2. X had a spouse and children - therefore section 1(1)(c) of the Intestate Succession Act
81 of 1987 applies in terms of which the spouse inherits either a child's share or R250 000
(the statutory amount) whichever is the greater and the children share the rest of the estate
equally.
3. A child's share is calculated by dividing the value of the intestate estate by the number
of children of the deceased 4. who have either survived him,
5. or have predeceased him but are survived by their descendants,
6. plus the number of surviving spouses (in this case only W).
7. To calculate the child's share we therefore count Ben (B), Charl (C) and David (D) (since D
left children to represent him) plus W (B, C, D en W = 4), and divide R800 000 by 4. This
means a child's share amounts to R200 000.
8. Since a child’s share of R200 000 is less than the statutory amount of R250 000, W inherits
the amount of R250 000.
9. After X inherits R250 000, R550 000 remains in X’s intestate estate to be divided equally
amongst his children. X's children, B, C and D (represented by his children), inherit the
residue in equal shares (R550 000 ÷ 3 = R183 333).
10. B and C each inherit R183 333 and E and F inherit D's share equally, each inheriting R91
666.
11. F may inherit even though he was born of unmarried parents, because in terms of the
Intestate Succession Act no difference should be made between children born of married
or unmarried parents.
12. Gavin (G) may not inherit from X, because he is not a blood relation of D but a step-child.
(I) Section 2(3) of the Wills Act 7 of 1953 may only be applied if the deceased
has personally drafted or executed the particular document. (1)
Bekker v Naude 2003 (5) SA 173 (SCA) (1)
A will may be rectified by the insertion of words. (1)
(ii)
Botha v The Master 1976 (3) SA 597 (OK) (1)
“The expert in anything was once a beginner”
, 3
(iii) A
condition in a will, which has the effect of breaking up an existing
marriage, is valid where such effect is purely incidental and did not form part
of the testator’s intention. (1)
Barclays Bank DC & O v Anderson 1959 2 SA 478 (T) (1)
(iv) A person who negligently caused the death of the testator may not inherit
from the testator.
(1)
Casey v The Master 1992 (4) SA 505 (N) (1)
Question 2
Read the following set of facts and then answer the questions that follow: Mary
and John are siblings. In his will John appointed his sister Mary to inherit his
whole estate. In her will Mary appointed her husband Peter to be her heir. Mary
and John are killed in the same car accident, and no evidence exists as to who
died first. John leaves behind both his parents. Mary leaves behind her
parents and her husband Peter. (a) Who will inherit John and
Mary's respective estates? Briefly explain your answer. (7)
When two people die in the same disaster and it is not possible to establish who died first,
the court will find that they died simultaneously.(1) Ex parte Graham (1) held that
in our law no presumption as to the order of death exists.(1) That means that 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.(1) John’s will cannot be given
effect to because Mary cannot inherit from him.(1) John’s estate will therefore devolve
in terms of the law of intestate succession (1) and his mother and father will inherit his
estate. (1) Mary is survived by her husband and he will inherit her estate in terms of her
will. (1)
(b) Would it have made a difference to your answer if John died at the scene of
the accident and Mary died two hours later in hospital? Briefly explain your
answer.
Yes. If Mary survived John, she would have inherited John’s estate as indicated in his will
(1), and her husband would then have inherited both her and John’s estates as John’s
estate would have formed part of her estate. (1). John’s parents would then not have
inherited. (1) (3)
Question 3
(a) Explain what a "testamentary writing" is as defined by the court in Ex parte
Davies 1957 (3) SA 471 (N). (3)
A testamentary writing is a document which defines any one of the three
essential elements of a bequest, namely:
“The expert in anything was once a beginner”
