Succession Rules Semester 1
Common law this common law that well if its so common then why don’t I know it huh???
Table of Contents
Introduction.......................................................................................................................1
Case Law.......................................................................................................................................2
Rules from Legislation and Common Law.....................................................................................4
Intestate Succession...........................................................................................................8
Case Law.......................................................................................................................................8
Rules from Legislation..................................................................................................................8
Rules from Common Law............................................................................................................11
Validity of Wills in Testate Succession..............................................................................12
Case Law.....................................................................................................................................13
Rules from Common Law and Legislation...................................................................................16
All the Requirements for the Validity of any Testamentary Document.......................................................17
The Requirement of Testamentary Capacity................................................................................................18
The Required Formalities for a Valid Will under Section 2 of the Wills Act.................................................21
Exceptional Circumstances: Amending, Condoning, Revoking and Reviving Wills.............25
Amendment of Wills...................................................................................................................25
Condoning Wills (Section 2(3))....................................................................................................27
Revocation..................................................................................................................................34
General Principles and Requirements..........................................................................................................34
Methods........................................................................................................................................................36
Doctrine of Dependant Relative Revocation................................................................................................38
The Effect of Section 2A on the Revocation of Wills....................................................................................39
Revival of Revoked Wills.............................................................................................................40
Introduction
In succession, the main questions we always have to ask are:
Who is entitled to succeed the deceased?
, Extent of the benefits they are to receive? (How much from the estate do they
receive and what the conditions for receiving certain things)
Succession can take place in three ways:
In accordance with a valid Will – Testate Succession
Through the operation of the law of Intestate Succession
In terms of a Contract/Agreement – Successio ex Contractu/Pactum Sucessorium
Case Law
Greenberg v Estate Greenberg
Explains vesting - heir acquires personal right upon death i.e. when the estate falls
open and the right is vested (dies cedit), later that right becomes enforceable and
the beneficiary becomes entitled to demand deliver of their vested right (dies venit)
Clarifies who owns the asset at what point – there is no owner until dies venit,
executor retains bare dominium
Ex Parte Estate Van Rensburg
The beneficiary must accept the whole will in so far it is applicable to him or her
o Cannot partially repudiate – if you repudiate, you do so fully and receive 0
Bielovich v the Master
You can set aside repudiation if you did not know the consequences of your
repudiation when you repudiated the benefit BUT it will only reversed by be court if
the decision was made “in excusable ignorance of his or her rights.”
Wessels v De Jager
An insolvent person is able to repudiate an inheritance - this does not cause
prejudice to creditors because the money never entered the insolvent persons
estate
Ex Parte Graham
, There is no longer a presumption as to the order of death in situations of
commorientes (when multiple people are killed in the same disaster), one must look
to the facts of the situation/ evidence to determine this
If it is not possible to establish this, the court will find that they died simultaneously.
Daniels v Campbell
Extended the meaning of the term “spouse” in the ISA to parties involved in
monogamous Muslim Marriage.
Hassam v Jacobs
The term “spouse” in the ISA should be interpreted to include spouses in polygynous
Muslim marriages.
Govender v Ragavayah
The term “spouse” as used in the ISA should include the surviving partner in a
monogamous Hindu marriage.
Volks NO v Robinson
Heterosexual life partners are not considered a ‘survivor of a marriage’ under ISA
and don’t get the same legal protection as a spouse
Gory v Kolver
Section 1(1) of the ISA was to read as though the words “or partner in a permanent
same-sex partnership in which partners have undertaken reciprocal duties of
support” appeared after the word “spouse”.
o NB: this happened before the Civil Unions Act
Laubscher NO v Duplan
Same-sex permanent partners will continue to enjoy intestate succession rights
under section 1(1) of ISA, as per the Gory order, until such time that the Legislature
specifically amends the section.
, Rules from Legislation and Common Law
The Estate Itself
A deceased estate consists of the assets and liabilities of a deceased person at the
time of his or her death.
o The estate therefore consists not only of property, but also of any debts that
the deceased incurred before his or her death
Characteristics of the deceased’s estate: It is not a legal person which means it
cannot sue or be sued in its own name
o This means the executor must sue in their representative capacity on behalf
of the estate
Vesting of the Estate
Rule about vesting: the heir acquires personal right upon death (i.e. when the estate
falls open and the right is vested (dies cedit)) against the executor to obtain a
transfer later – later when that right becomes enforceable and the beneficiary
becomes entitled to demand delivery of their vested right e.g. all the debts have
been paid and formalities wrapped up (dies venit)
o See Greenberg v Greenberg: Clarifies who owns the asset at what point – in
between dies cedit and dies venit the heirs do not own the property
o The moment the estate falls open = delatio
o The heirs do not own the property until it has been transferred to their
names as that would be universal succession which is not recognised in SA
law
In terms of who does own the estate during this period, the matter is unsettled in
our law
o Some argue the estate vests in the master during this period
o Others argue that the executor attains bare dominium i.e. they are the owner
of assets in an official capacity but they cannot sell or use
The Legal Position of the Executor
Common law this common law that well if its so common then why don’t I know it huh???
Table of Contents
Introduction.......................................................................................................................1
Case Law.......................................................................................................................................2
Rules from Legislation and Common Law.....................................................................................4
Intestate Succession...........................................................................................................8
Case Law.......................................................................................................................................8
Rules from Legislation..................................................................................................................8
Rules from Common Law............................................................................................................11
Validity of Wills in Testate Succession..............................................................................12
Case Law.....................................................................................................................................13
Rules from Common Law and Legislation...................................................................................16
All the Requirements for the Validity of any Testamentary Document.......................................................17
The Requirement of Testamentary Capacity................................................................................................18
The Required Formalities for a Valid Will under Section 2 of the Wills Act.................................................21
Exceptional Circumstances: Amending, Condoning, Revoking and Reviving Wills.............25
Amendment of Wills...................................................................................................................25
Condoning Wills (Section 2(3))....................................................................................................27
Revocation..................................................................................................................................34
General Principles and Requirements..........................................................................................................34
Methods........................................................................................................................................................36
Doctrine of Dependant Relative Revocation................................................................................................38
The Effect of Section 2A on the Revocation of Wills....................................................................................39
Revival of Revoked Wills.............................................................................................................40
Introduction
In succession, the main questions we always have to ask are:
Who is entitled to succeed the deceased?
, Extent of the benefits they are to receive? (How much from the estate do they
receive and what the conditions for receiving certain things)
Succession can take place in three ways:
In accordance with a valid Will – Testate Succession
Through the operation of the law of Intestate Succession
In terms of a Contract/Agreement – Successio ex Contractu/Pactum Sucessorium
Case Law
Greenberg v Estate Greenberg
Explains vesting - heir acquires personal right upon death i.e. when the estate falls
open and the right is vested (dies cedit), later that right becomes enforceable and
the beneficiary becomes entitled to demand deliver of their vested right (dies venit)
Clarifies who owns the asset at what point – there is no owner until dies venit,
executor retains bare dominium
Ex Parte Estate Van Rensburg
The beneficiary must accept the whole will in so far it is applicable to him or her
o Cannot partially repudiate – if you repudiate, you do so fully and receive 0
Bielovich v the Master
You can set aside repudiation if you did not know the consequences of your
repudiation when you repudiated the benefit BUT it will only reversed by be court if
the decision was made “in excusable ignorance of his or her rights.”
Wessels v De Jager
An insolvent person is able to repudiate an inheritance - this does not cause
prejudice to creditors because the money never entered the insolvent persons
estate
Ex Parte Graham
, There is no longer a presumption as to the order of death in situations of
commorientes (when multiple people are killed in the same disaster), one must look
to the facts of the situation/ evidence to determine this
If it is not possible to establish this, the court will find that they died simultaneously.
Daniels v Campbell
Extended the meaning of the term “spouse” in the ISA to parties involved in
monogamous Muslim Marriage.
Hassam v Jacobs
The term “spouse” in the ISA should be interpreted to include spouses in polygynous
Muslim marriages.
Govender v Ragavayah
The term “spouse” as used in the ISA should include the surviving partner in a
monogamous Hindu marriage.
Volks NO v Robinson
Heterosexual life partners are not considered a ‘survivor of a marriage’ under ISA
and don’t get the same legal protection as a spouse
Gory v Kolver
Section 1(1) of the ISA was to read as though the words “or partner in a permanent
same-sex partnership in which partners have undertaken reciprocal duties of
support” appeared after the word “spouse”.
o NB: this happened before the Civil Unions Act
Laubscher NO v Duplan
Same-sex permanent partners will continue to enjoy intestate succession rights
under section 1(1) of ISA, as per the Gory order, until such time that the Legislature
specifically amends the section.
, Rules from Legislation and Common Law
The Estate Itself
A deceased estate consists of the assets and liabilities of a deceased person at the
time of his or her death.
o The estate therefore consists not only of property, but also of any debts that
the deceased incurred before his or her death
Characteristics of the deceased’s estate: It is not a legal person which means it
cannot sue or be sued in its own name
o This means the executor must sue in their representative capacity on behalf
of the estate
Vesting of the Estate
Rule about vesting: the heir acquires personal right upon death (i.e. when the estate
falls open and the right is vested (dies cedit)) against the executor to obtain a
transfer later – later when that right becomes enforceable and the beneficiary
becomes entitled to demand delivery of their vested right e.g. all the debts have
been paid and formalities wrapped up (dies venit)
o See Greenberg v Greenberg: Clarifies who owns the asset at what point – in
between dies cedit and dies venit the heirs do not own the property
o The moment the estate falls open = delatio
o The heirs do not own the property until it has been transferred to their
names as that would be universal succession which is not recognised in SA
law
In terms of who does own the estate during this period, the matter is unsettled in
our law
o Some argue the estate vests in the master during this period
o Others argue that the executor attains bare dominium i.e. they are the owner
of assets in an official capacity but they cannot sell or use
The Legal Position of the Executor
