Study unit one:
What is the law of succession?
The law of succession comprises the legal rules that regulate the devolution of assets from the
estate of a deceased estate owner to that of their successors (beneficiaries). It determines who
the successors are and the extent of their benefit. Its rules are derived from case law, statute,
and the common law.
Succession is concerned only with the deceased assets and not their liabilities, and these assets
can only be divulged upon the death of the deceased.
The two types of law of succession is common law of succession and customary law of
succession.
Branches of common law of succession:
1. Law of intestate succession. Applies in the absence of a will.
2. Law of testate succession. Applies when the deceased has made a will.
3. Succession by contract. This is where the deceased has entered into contract to divulge
their assets at their death, it is generally invalid except
where:
a) Antenuptial contract
b) Donatio mortis causa (donation of assets upon death)
The administration of the deceased estates:
Upon a deceased’s death, their estate is subjected to administration or winding up, as is
regulated by the administration of estates Act 66 of 1965.
The two important functionaries are the master of the HC and the executor.
- The master of the hc supervises administrative processors and actions of the executor and
advises thereon.
- The executor actively administers the estate, they are either appointed by the master of the
HC (executor dative) or nominated by the deceased in a will (executor testamentary), in
which case the master of the hc will have to issue a letters of executorship before the
executor may commence the administering of the assets.
- The executor must:
1. Complete relevant estate documents (death notice, inventory of assets)
2. Submit all documents to Master (including original will)
3. Advertise to creditors so that they may submit their claims.
4. Pay all the claims against the estate, utilizing cash or selling assets where necessary.
5. Distribute remaining assets to successors.
6. The above must all be reflected in the liquidation and distribution account of the deceased
(l&d account) which must lie open in the masters and magistrate’s office for 21 days. If this is
not objected to, the executor may finalise the administration of the estate.
Key words:
A legatee is the recipient of a legacy (particular asset, particular group of assets, or particular
sum of money) in terms of a will and applies only to testate succession.
, A heir is the person in testate succession that receives the remainder of the estate once all the
legacies have been distributed. The heir in intestate succession is equivalent to a successor.
Inheritance refers to the benefit that goes to an heir or successor.
Freedom of testation grants a testator the right to divulge their assets to whomever they please
and under whatever terms and conditions they may so desire. This, however, remains subject to
certain limitations.
Why is succession not a mode of acquisition of ownership?
Greenberg v Estate Greenberg 1955 (3) SA 361 (A):
Upon the death of the testator, the successor acquires a vested/personal right [Dias Cedit] to a
claim for the property that can be enforced after the confirmation and distribution of the l&d
account (Dias Venit].
Requirements for succession to occur:
1. The estate owner must have dies (or a court order issuing the presumption of death.
2. The successor must be alive at the moment of dias cedit or be conceived at such time and
later born alive (nasciturus fiction).
3. The successor must survive (outlive) the estate owner.
What is the law of succession?
The law of succession comprises the legal rules that regulate the devolution of assets from the
estate of a deceased estate owner to that of their successors (beneficiaries). It determines who
the successors are and the extent of their benefit. Its rules are derived from case law, statute,
and the common law.
Succession is concerned only with the deceased assets and not their liabilities, and these assets
can only be divulged upon the death of the deceased.
The two types of law of succession is common law of succession and customary law of
succession.
Branches of common law of succession:
1. Law of intestate succession. Applies in the absence of a will.
2. Law of testate succession. Applies when the deceased has made a will.
3. Succession by contract. This is where the deceased has entered into contract to divulge
their assets at their death, it is generally invalid except
where:
a) Antenuptial contract
b) Donatio mortis causa (donation of assets upon death)
The administration of the deceased estates:
Upon a deceased’s death, their estate is subjected to administration or winding up, as is
regulated by the administration of estates Act 66 of 1965.
The two important functionaries are the master of the HC and the executor.
- The master of the hc supervises administrative processors and actions of the executor and
advises thereon.
- The executor actively administers the estate, they are either appointed by the master of the
HC (executor dative) or nominated by the deceased in a will (executor testamentary), in
which case the master of the hc will have to issue a letters of executorship before the
executor may commence the administering of the assets.
- The executor must:
1. Complete relevant estate documents (death notice, inventory of assets)
2. Submit all documents to Master (including original will)
3. Advertise to creditors so that they may submit their claims.
4. Pay all the claims against the estate, utilizing cash or selling assets where necessary.
5. Distribute remaining assets to successors.
6. The above must all be reflected in the liquidation and distribution account of the deceased
(l&d account) which must lie open in the masters and magistrate’s office for 21 days. If this is
not objected to, the executor may finalise the administration of the estate.
Key words:
A legatee is the recipient of a legacy (particular asset, particular group of assets, or particular
sum of money) in terms of a will and applies only to testate succession.
, A heir is the person in testate succession that receives the remainder of the estate once all the
legacies have been distributed. The heir in intestate succession is equivalent to a successor.
Inheritance refers to the benefit that goes to an heir or successor.
Freedom of testation grants a testator the right to divulge their assets to whomever they please
and under whatever terms and conditions they may so desire. This, however, remains subject to
certain limitations.
Why is succession not a mode of acquisition of ownership?
Greenberg v Estate Greenberg 1955 (3) SA 361 (A):
Upon the death of the testator, the successor acquires a vested/personal right [Dias Cedit] to a
claim for the property that can be enforced after the confirmation and distribution of the l&d
account (Dias Venit].
Requirements for succession to occur:
1. The estate owner must have dies (or a court order issuing the presumption of death.
2. The successor must be alive at the moment of dias cedit or be conceived at such time and
later born alive (nasciturus fiction).
3. The successor must survive (outlive) the estate owner.
