Introduction
Thursday, 30 May 2024 08:19
1.1 General background to the law of succession
When someone dies he leaves behind an estate ( deceased estate ) that must be devolved among his heirs. Succession
may take place in three ways
• In accordance with a valid will
• Through the operation of the law of intestate succession in the absence of a will
• In terms of a contract or agreement
1.2 Law of Succession in the legal system
The law of succession is the totality of the legal rules that control the transfer of those assets of the deceased that are
subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of
disposal, the master of the High Court is involved in the process
1.3 Dual character of the law of succession
These enjoy equal status and are subject to the Constitution of South Africa and other legislation. The common law of
succession is divided into the testate law of succession and the intestate law of succession, whereas the customary
law of succession only operates intestate
Four issues must be considered when looking at the two branches of succession law
• customary law is subject to two provisions, namely it must be compatible with the Constitution and it may be
amended by means of legislation
• The decision as to which law is applicable to a particular deceased estate is made by applying choice of law rules
that can be derived from statute or judicial precedent
• because customary law is not a single, unified system of law, but comprises the different customary laws of the
various traditional communities in SA
• The difference between the common and customary succession laws are primarily based on societal and
economic considerations
1.4 Choice of law rules
1.4.1 The problem of conflicting rights and obligations
1.4.2 Testate law of succession
New Section 1 Page 1
Thursday, 30 May 2024 08:19
1.1 General background to the law of succession
When someone dies he leaves behind an estate ( deceased estate ) that must be devolved among his heirs. Succession
may take place in three ways
• In accordance with a valid will
• Through the operation of the law of intestate succession in the absence of a will
• In terms of a contract or agreement
1.2 Law of Succession in the legal system
The law of succession is the totality of the legal rules that control the transfer of those assets of the deceased that are
subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of
disposal, the master of the High Court is involved in the process
1.3 Dual character of the law of succession
These enjoy equal status and are subject to the Constitution of South Africa and other legislation. The common law of
succession is divided into the testate law of succession and the intestate law of succession, whereas the customary
law of succession only operates intestate
Four issues must be considered when looking at the two branches of succession law
• customary law is subject to two provisions, namely it must be compatible with the Constitution and it may be
amended by means of legislation
• The decision as to which law is applicable to a particular deceased estate is made by applying choice of law rules
that can be derived from statute or judicial precedent
• because customary law is not a single, unified system of law, but comprises the different customary laws of the
various traditional communities in SA
• The difference between the common and customary succession laws are primarily based on societal and
economic considerations
1.4 Choice of law rules
1.4.1 The problem of conflicting rights and obligations
1.4.2 Testate law of succession
New Section 1 Page 1
