Private Law 273: Law of Succession
Contents
Private Law 273: Law of Succession ........................................................................................................ 1
Topic 1: Introduction .......................................................................................................................... 2
Topic 2: Intestate Succession ............................................................................................................. 9
Topic 3: Testamentary capacity to make a will & to sign as a witness .......................................... 20
Topic 4: Formalities in the Execution and Amendment of Wills .................................................... 26
Topic 5: Invalid wills and revoked wills ........................................................................................... 49
Topic 6: Capacity to Inherit .............................................................................................................. 63
Topic 7: The Contents of Wills ......................................................................................................... 70
Topic 8: Joint/mutual wills, adiation/repudiation/election & massing of estates ...................... 123
Topic 9: Accrual (ius accrescendi) .................................................................................................. 127
Topic 10: Collation (collatio) .......................................................................................................... 128
Topic 11: Succession by contract (pactum successorium) ............................................................ 129
Topic 12: Interpretation and ratification of wills .......................................................................... 134
Chapter 13: Administration of Estates .......................................................................................... 145
1
,Topic 1: Introduction
1. General
● Law of Succession controls the transfer of assets at the death of a person
● Assets – things you own like clothes, furniture, money; liabilities – things you owe like debt or
accounts
● Only assets carry over after death, not liabilities
● The position of the law of succession in private law is very closely linked to property law
Law of succession in societal context (can’t look too narrowly)
1. Private ownership (no succession without private ownership) – used to be restricted in older
times
2. Economic function – regulates transfer of wealth at death, wealth can be small (for instance:
clothes only) or large
3. Freedom of testation – what restrictions are there? Linked to ownership, who can the estate
go to?
4. Social function
NB: De Waal The Social and Economic Foundations of the Law of Succession 1997 (p. 3 of collection)
The basic function of the law of succession:
i) Inheritance and the transfer of interests in property provide one of the chief means in which
the social order carries on over time
ii) The law of succession may serve as an incentive to stimulate creativity, hard work, initiative
and ultimately productivity, which may benefit others
iii) The law of succession may foster individual responsibility by encouraging those who can to
provide for dependants (a task which is otherwise undertaken from society)
iv) The law of succession, together with the institution of private property, is a mechanism by
which the individual can demonstrate his/her own freedom from the state and society
v) The law of succession has as its chief function (or goal) the continuation of economic life in
spite of the death of people
vi) In the modern economic order, the basic function of the law of succession lies in support of
the family, enabling it to fulfil its social function
vii) In customary law two objectives must be achieved: the family must be perpetuated and the
deceased’s property must be distributed among survivors (specifically members of the family).
Influence of social factors:
a) Family – the family as a unit is protected and preserved by the law of succession. The law of
succession attempts to ensure the basic needs of surviving family members via the estate of
the deceased. This is achieved in intestate succession by generally drawing the circle of
potential heirs as small as possible and intestate succession by various restrictions on the
testator’s freedom of testation – known as forced succession. Family here refers to the
“nuclear” family – the western concept of married parents with their dependent children.
b) Indigenous communities - the degree to which the law applies to or is used by people of
different societies, e.g., intestate succession is much more prevalent in societies still strongly
influenced by traditional custom and practices. The law of succession in general grows more
varied and complex as society does. Different communities have wider definitions of “family”.
c) Wealth – people who have less wealth are less likely to have a will.
d) Age – people who are older are more likely to have a will.
e) Changes in society – cohabitation, same-sex relationships
2
,Influence of economic factors:
a) Changes in what is considered wealth. Previously land was considered the dominant form of
wealth. Now, financial assets (like stocks, bonds and shares) as well as human capital
(education).
b) The enhancement in life expectancy – more people outlive their period of productive
employment and is the rise of the private pension system. People are expected to foresee the
need for income during retirement while they are working and start saving money.
2. Testate and Intestate Succession
● Testate succession: deceased set up document called a will determining the final destination
of his/her assets
o Definition of a will in terms of the Law of Succession (page 2)
- A will is the unilateral declaration of the wishes of the testator, which sets out
how the testator’s assets are to be allocated to the designated persons or
organisations after his/her death.
o The deceased person is called the testator
o Wills Act 7 of 1953 – requirements for a valid will
o The will must comply with formalities to be valid
o However, the contents of the will are completely up to the testator – freedom of
testation (with limits)
● Intestate succession: deceased leaves behind no valid will
o No testator (because there is no valid will) therefore the deceased is called the
deceased
o Intestate Succession Act 81 of 1987
o Firm rules set out in Act – no freedom of testation (irrelevant)
3. Administration of Estates
● Executor of estate, who is appointed by will or the Master, becomes the automatic temporary
owner of the estate at death and then transfers it to the beneficiaries, under the supervision
of the Master
● Administration of Estates Act 66 of 1965
4. Contents of wills and freedom of testation
Freedom of testation and its restrictions
● Freedom of testation means that the testator’s wishes will be carried out except in as far as
the law places a restriction on the freedom of the testator
● Restrictions
1) Common law – can’t make unlawful provision in will, can’t be against public policy,
can’t be too vague that it cannot be interpreted and cannot be impossible
2) General legislation restricts freedom of expression too, such as:
a) The Pension Funds Act, in terms of which certain benefits payable by a
pension fund are excluded from the estate of a deceased member of such a
fund
b) The Immovable Property (Removal or Modification of Restrictions) Act which
empowers the court to alter or amend any restrictions placed by a will on
immovable property
3
, c) The Trust Property Control Act which authorises the court to amend the
provisions of a trust or even terminate the trust and
d) The Maintenance of Surviving Spouses Act which determines that a surviving
spouse may, under certain circumstances, claim an advance for maintenance
from the estate of a deceased spouse.
● STUDY: De Waal “The Social and economic foundations of the law of succession” 1997 Stell LR
162 (Additional material p3)
o Restrictions based on social or economic considerations
3) Constitution of RSA 108 of 1996 – freedom of testation guaranteed in Constitution
● In re BOE Trust Ltd 2013 (3) SA 236 (SCA)
o S 25(1): Property
⮚ Guarantees your right to deal with your property and determine
where your assets will go after your death; also, the ability to dispose
of your property, presupposing freedom of testation (p 5 textbook)
o S 10: Dignity
⮚ Peace of mind knowing your last wishes will be respected after your
death (p5 textbook)
o S 36: Limitations
⮚ Restrictions justified to limitation clause
o S 9(3) + (4): Equality
⮚ Can you discriminate in your own private will? (p5)
⮚ Answer – look at 2 different situations
A) Complete disinheritance
● “Because of his political convictions, my son inherits nothing.”
● “Because my daughter has abandoned the Jewish faith, she inherits nothing.”
● Right of the testator to freedom of testation conflicts with the beneficiary’s right to
equality
● NB: Considerations (p6)
o Principle
⮚ Freedom of testation would be rendered useless if this was not
allowed
o No fundamental right to inherit
⮚ One merely has a spes to inherit, therefore one does not infringe a
right by disinheriting someone
o Practical considerations
⮚ By challenging this, would the person be rendered intestate? Now
people would benefit whom the testator did not intend to benefit?
Who can all challenge? What would the disadvantaged person’s
remedy be?
● “Only male descendants will inherit the farms.”
o See: King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC)
⮚ Daughters challenged will, court used 3 consideration and decided
that the provision is valid – due to freedom of testation
⮚ Appeal – SCA – confirmed decision of WCC unanimously; SCA gave
no reasons
o NB: Read attentively paragraphs [56] – [82]
● “Only my natural and not my adopted children can inherit.”
4
, oHarper and Others v Crawford NO and Others 2018 (1) SA 589 (WCC)
⮚ Challenged by adopted children
⮚ WCC – cannot challenged due to considerations, freedom of
testation
⮚ SCA – confirmed WCC’s findings unanimously due to considerations
and freedom of testation
o See: Harvey NO v Crawford NO [2018] ZASCA 147
⮚ 2 cases joined, final decision
B) Attachment of conditions
● “My daughter inherits R100 000. If she abandons the Christian faith, she will forfeit
the money.”
o Condition violates s9 and therefore is not valid
o Will be set aside due to discrimination
● “From the trust income bursaries must be paid to white law students at SU.”
o Ex Parte BOE Trust Ltd No 2009 (6) SA 470 (WCC)
o Minister of Education and Another v Syfrets Trust Ltd NO 2006 (4) SA 205 (C)
⮚ Court said this cannot be allowed – moved out of private context and
has public ramifications
o “… female white students …”? “… black students …”?
⮚ Females and black students suffered from past discrimination, and
therefore qualify for support
● General testamentary institutions
● Revocation, amendment of wills
● Succession by contract
o In principle - invalid as it is against public policy
o Two manifestations of the pactum successorium that are not invalid
- Donatio mortis causa
- Testamentary provisions contained in an antenuptial contract
5. Vesting and enforcement of rights
● Inception of beneficiary’s right
o The beneficiary's claim against the executor in terms of the law of testate and
intestate succession arises the moment estate of the deceased “falls opens” with
regard to the particular beneficiary’s benefit.
● “Falling open” of estate = delatio
● Delatio = dies cedit (“the day has arrived”)
o synonyms for “falling open”/delatio
● Dies cedit = moment the beneficiary’s right vests – the moment they acquire the personal
right against the executor (to claim e.g., car)
● Dies venit = moment the beneficiary’s right becomes enforceable
o “The moment has come” when beneficiary can enforce right e.g., car keys handed over
after administration of estate
o Theoretically, dies cedit and dies venit happen at the same time, but this almost never
happens in theory – dies cedit precedes dies venit
Vesting of rights in the law of testate succession
● NB: intention of testator
5
Contents
Private Law 273: Law of Succession ........................................................................................................ 1
Topic 1: Introduction .......................................................................................................................... 2
Topic 2: Intestate Succession ............................................................................................................. 9
Topic 3: Testamentary capacity to make a will & to sign as a witness .......................................... 20
Topic 4: Formalities in the Execution and Amendment of Wills .................................................... 26
Topic 5: Invalid wills and revoked wills ........................................................................................... 49
Topic 6: Capacity to Inherit .............................................................................................................. 63
Topic 7: The Contents of Wills ......................................................................................................... 70
Topic 8: Joint/mutual wills, adiation/repudiation/election & massing of estates ...................... 123
Topic 9: Accrual (ius accrescendi) .................................................................................................. 127
Topic 10: Collation (collatio) .......................................................................................................... 128
Topic 11: Succession by contract (pactum successorium) ............................................................ 129
Topic 12: Interpretation and ratification of wills .......................................................................... 134
Chapter 13: Administration of Estates .......................................................................................... 145
1
,Topic 1: Introduction
1. General
● Law of Succession controls the transfer of assets at the death of a person
● Assets – things you own like clothes, furniture, money; liabilities – things you owe like debt or
accounts
● Only assets carry over after death, not liabilities
● The position of the law of succession in private law is very closely linked to property law
Law of succession in societal context (can’t look too narrowly)
1. Private ownership (no succession without private ownership) – used to be restricted in older
times
2. Economic function – regulates transfer of wealth at death, wealth can be small (for instance:
clothes only) or large
3. Freedom of testation – what restrictions are there? Linked to ownership, who can the estate
go to?
4. Social function
NB: De Waal The Social and Economic Foundations of the Law of Succession 1997 (p. 3 of collection)
The basic function of the law of succession:
i) Inheritance and the transfer of interests in property provide one of the chief means in which
the social order carries on over time
ii) The law of succession may serve as an incentive to stimulate creativity, hard work, initiative
and ultimately productivity, which may benefit others
iii) The law of succession may foster individual responsibility by encouraging those who can to
provide for dependants (a task which is otherwise undertaken from society)
iv) The law of succession, together with the institution of private property, is a mechanism by
which the individual can demonstrate his/her own freedom from the state and society
v) The law of succession has as its chief function (or goal) the continuation of economic life in
spite of the death of people
vi) In the modern economic order, the basic function of the law of succession lies in support of
the family, enabling it to fulfil its social function
vii) In customary law two objectives must be achieved: the family must be perpetuated and the
deceased’s property must be distributed among survivors (specifically members of the family).
Influence of social factors:
a) Family – the family as a unit is protected and preserved by the law of succession. The law of
succession attempts to ensure the basic needs of surviving family members via the estate of
the deceased. This is achieved in intestate succession by generally drawing the circle of
potential heirs as small as possible and intestate succession by various restrictions on the
testator’s freedom of testation – known as forced succession. Family here refers to the
“nuclear” family – the western concept of married parents with their dependent children.
b) Indigenous communities - the degree to which the law applies to or is used by people of
different societies, e.g., intestate succession is much more prevalent in societies still strongly
influenced by traditional custom and practices. The law of succession in general grows more
varied and complex as society does. Different communities have wider definitions of “family”.
c) Wealth – people who have less wealth are less likely to have a will.
d) Age – people who are older are more likely to have a will.
e) Changes in society – cohabitation, same-sex relationships
2
,Influence of economic factors:
a) Changes in what is considered wealth. Previously land was considered the dominant form of
wealth. Now, financial assets (like stocks, bonds and shares) as well as human capital
(education).
b) The enhancement in life expectancy – more people outlive their period of productive
employment and is the rise of the private pension system. People are expected to foresee the
need for income during retirement while they are working and start saving money.
2. Testate and Intestate Succession
● Testate succession: deceased set up document called a will determining the final destination
of his/her assets
o Definition of a will in terms of the Law of Succession (page 2)
- A will is the unilateral declaration of the wishes of the testator, which sets out
how the testator’s assets are to be allocated to the designated persons or
organisations after his/her death.
o The deceased person is called the testator
o Wills Act 7 of 1953 – requirements for a valid will
o The will must comply with formalities to be valid
o However, the contents of the will are completely up to the testator – freedom of
testation (with limits)
● Intestate succession: deceased leaves behind no valid will
o No testator (because there is no valid will) therefore the deceased is called the
deceased
o Intestate Succession Act 81 of 1987
o Firm rules set out in Act – no freedom of testation (irrelevant)
3. Administration of Estates
● Executor of estate, who is appointed by will or the Master, becomes the automatic temporary
owner of the estate at death and then transfers it to the beneficiaries, under the supervision
of the Master
● Administration of Estates Act 66 of 1965
4. Contents of wills and freedom of testation
Freedom of testation and its restrictions
● Freedom of testation means that the testator’s wishes will be carried out except in as far as
the law places a restriction on the freedom of the testator
● Restrictions
1) Common law – can’t make unlawful provision in will, can’t be against public policy,
can’t be too vague that it cannot be interpreted and cannot be impossible
2) General legislation restricts freedom of expression too, such as:
a) The Pension Funds Act, in terms of which certain benefits payable by a
pension fund are excluded from the estate of a deceased member of such a
fund
b) The Immovable Property (Removal or Modification of Restrictions) Act which
empowers the court to alter or amend any restrictions placed by a will on
immovable property
3
, c) The Trust Property Control Act which authorises the court to amend the
provisions of a trust or even terminate the trust and
d) The Maintenance of Surviving Spouses Act which determines that a surviving
spouse may, under certain circumstances, claim an advance for maintenance
from the estate of a deceased spouse.
● STUDY: De Waal “The Social and economic foundations of the law of succession” 1997 Stell LR
162 (Additional material p3)
o Restrictions based on social or economic considerations
3) Constitution of RSA 108 of 1996 – freedom of testation guaranteed in Constitution
● In re BOE Trust Ltd 2013 (3) SA 236 (SCA)
o S 25(1): Property
⮚ Guarantees your right to deal with your property and determine
where your assets will go after your death; also, the ability to dispose
of your property, presupposing freedom of testation (p 5 textbook)
o S 10: Dignity
⮚ Peace of mind knowing your last wishes will be respected after your
death (p5 textbook)
o S 36: Limitations
⮚ Restrictions justified to limitation clause
o S 9(3) + (4): Equality
⮚ Can you discriminate in your own private will? (p5)
⮚ Answer – look at 2 different situations
A) Complete disinheritance
● “Because of his political convictions, my son inherits nothing.”
● “Because my daughter has abandoned the Jewish faith, she inherits nothing.”
● Right of the testator to freedom of testation conflicts with the beneficiary’s right to
equality
● NB: Considerations (p6)
o Principle
⮚ Freedom of testation would be rendered useless if this was not
allowed
o No fundamental right to inherit
⮚ One merely has a spes to inherit, therefore one does not infringe a
right by disinheriting someone
o Practical considerations
⮚ By challenging this, would the person be rendered intestate? Now
people would benefit whom the testator did not intend to benefit?
Who can all challenge? What would the disadvantaged person’s
remedy be?
● “Only male descendants will inherit the farms.”
o See: King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC)
⮚ Daughters challenged will, court used 3 consideration and decided
that the provision is valid – due to freedom of testation
⮚ Appeal – SCA – confirmed decision of WCC unanimously; SCA gave
no reasons
o NB: Read attentively paragraphs [56] – [82]
● “Only my natural and not my adopted children can inherit.”
4
, oHarper and Others v Crawford NO and Others 2018 (1) SA 589 (WCC)
⮚ Challenged by adopted children
⮚ WCC – cannot challenged due to considerations, freedom of
testation
⮚ SCA – confirmed WCC’s findings unanimously due to considerations
and freedom of testation
o See: Harvey NO v Crawford NO [2018] ZASCA 147
⮚ 2 cases joined, final decision
B) Attachment of conditions
● “My daughter inherits R100 000. If she abandons the Christian faith, she will forfeit
the money.”
o Condition violates s9 and therefore is not valid
o Will be set aside due to discrimination
● “From the trust income bursaries must be paid to white law students at SU.”
o Ex Parte BOE Trust Ltd No 2009 (6) SA 470 (WCC)
o Minister of Education and Another v Syfrets Trust Ltd NO 2006 (4) SA 205 (C)
⮚ Court said this cannot be allowed – moved out of private context and
has public ramifications
o “… female white students …”? “… black students …”?
⮚ Females and black students suffered from past discrimination, and
therefore qualify for support
● General testamentary institutions
● Revocation, amendment of wills
● Succession by contract
o In principle - invalid as it is against public policy
o Two manifestations of the pactum successorium that are not invalid
- Donatio mortis causa
- Testamentary provisions contained in an antenuptial contract
5. Vesting and enforcement of rights
● Inception of beneficiary’s right
o The beneficiary's claim against the executor in terms of the law of testate and
intestate succession arises the moment estate of the deceased “falls opens” with
regard to the particular beneficiary’s benefit.
● “Falling open” of estate = delatio
● Delatio = dies cedit (“the day has arrived”)
o synonyms for “falling open”/delatio
● Dies cedit = moment the beneficiary’s right vests – the moment they acquire the personal
right against the executor (to claim e.g., car)
● Dies venit = moment the beneficiary’s right becomes enforceable
o “The moment has come” when beneficiary can enforce right e.g., car keys handed over
after administration of estate
o Theoretically, dies cedit and dies venit happen at the same time, but this almost never
happens in theory – dies cedit precedes dies venit
Vesting of rights in the law of testate succession
● NB: intention of testator
5
