Term 1
What is the Law of Succession?
The Law of Succession is a branch of private law. It comprises those legal rules or
norms which regulate the devolution of a deceased person’s estate upon one or more
persons. Thus, it is concerned with what happens to a deceased person’s estate after
his death.
In which ways can succession take place? 3 Ways
In accordance with a valid Will being Testate Succession, through the operation of the
law of Intestate Succession and in terms of a Contract/Agreement – Successio ex
Contractu/Pactum Sucessorium.
On the death of a deceased, would an heir acquire ownership of the bequeathed
asset immediately?
No,the heir acquires a vested personal right against the executor to obtain transfer.
This means that the most that an heir can obtain at the death of a deceased in modern
SA law is a personal right against the executor of the estate. After the executor has
administered the estate in terms of the Administration of Estate Act and assuming that
the estate assets are greater than the liabilities, the executor will transfer the asset. This
is the earliest moment that ownership can take place as held in the Greenberg case
where the vesting of right takes place on the testator’s death.
List two exceptions to the rule that a person must be deceased before succession
can take place.
The Court pronounces a presumption of death and makes an order and Estate Massing.
What is the moment that the estate “falls open” is also known as? Delatio.
What is the difference between an Executor Testamentary and an Executor
Dative?
The Executor Testamentary is nominated by the testator in a valid will. The Master will
appoint the nominated person.
Executor Dative is when the deceased dies without a will and does not nominate an
executor.The Master will appoint an executor.
Executor DEF:
,A person authorized to act under letters of executorship granted or signed and sealed
by the Master.
2 Types of Executor ?
An executor testamentary who is motivated by the testator or in a void will and an
excuse or dative where the testator has not appointed an executor or a person dies
without a will where the Master appoints the executor.
Can an insolvent beneficiary repudiate his/her inheritance?
This issue was settled in the Wessels v De Jager case where the
SCA held that when inheritance becomes due and owing to an insolvent, he acquires a
competence to inherit, but not a right to inherit. This means that a beneficiary may
repudiate an inheritance and this does not cause prejudice to creditors.
If a beneficiary has not expressly or impliedly accepted an inheritance, it cannot be said
that that inheritance forms part of his estate. Since an insolvent has limited legal
capacity, the insolvent retains the right either to accept or to reject the inheritance.
This right does not pass to his trustee.
What is the power of assumption?
The testator may give the nominated executor the power of assumption. This means
that the appointed executor has the power to appoint a co-executor or agent to assist
with the winding-up of the estate.
When does the doctrine of election apply?
This is applicable in all cases where an acceptance of a benefit from a Will shall hold
some kind of burden/obligation. The beneficiary has to elect/choose to accept the
benefit that imposes a burden. This means if they accept the benefit then they must
accept the obligation but if a beneficiary elects to repudiate, they will receive nothing.
What is the difference between an heir and a legatee.
Heir:
A beneficiary who inherits a testator's entire estate, a portion of the estate or the residue
of the estate.
Legatee:
Testator leaves a specific asset (legacy) to a beneficiary (legatee). A legatee always
inherits a specific asset or a specific sum of money.
,EXEC DOESN'T DO DUTIES?
They may be removed from office with an application to the High Court, the beneficiary
can sue the third party on behalf of the estate as well as the executor can cede right of
action to the beneficiary.
Extra help ques :
1. Who/What is an executor?
2. List the different types of executors that can be appointed.
3. Who owns the assets when the testator dies? The executor has a kind of
official capacity to be the owner and deals with the assets. The Greenberg case shows
how South Africa doesn’t have universal succession and the benefit to the beneficiary is
a personal vested right until the assets have been transferred.
4. What is adiation?
The acceptance of the benefit from the estate of a testator or deceased either under
testate succession or under intestate succession.
5. What is repudiation?
The rejection of the benefit/ refusal to inherit a benefit from the estate of a testator or
deceased either under testate succession or under intestate succession.
6. Is an heir free to either adiate or repudiate any benefit?
7. How does adiation take place?
No formalities unless obligation of a condition attached then had to be in writing.
8. How does repudiation take place? In writing
9. When is the doctrine of election applicable? When obligation is involved.
Read Greenberg v Estate Greenberg 1955 (3) SA 361 (A):
, 1. What are the relevant facts? (What is the story? Why have the parties gone to
court?)
2. What is the legal issue? (What question does the Court have to look at and
decide on?)
3. What is the reasoning of the court? (What did the Court discuss? What the Court
find? Why did the make that finding/why did they reach that conclusion?)
Answer:
In the Greenburg case, the issue was when did the vesting of the right take place where
the court held it took place on the testator's death.
DIED SAME TIME CASE ANSWER:
According to the Ex parte Graham case, there is no presumption as to the order of
death in our law. When two people die in the same disaster the court will look at the
facts/evidence. If it is not possible to establish who died first, the court will find that they
died simultaneously.
This means that the two persons who died in the same accident, cannot inherit from
each other, because one has to survive a person to be able to inherit from him/her.
Survivorship is a precondition for inheriting and in this scenario, it is not clear who died
first.
Therefore, the court will find that XX and YY died simultaneously.
Sheldon’s will cannot be executed because Missy cannot inherit from him as she must
be alive at the time of inheriting.
Sheldon’s estate will therefore devolve in terms of the law of intestate succession and
his mother and father will inherit his estate.
Missy is survived by her husband and he will inherit her estate in terms of her will.
MCQ answer : In Ex parte Graham 1963 (4) SA (D), the court held that:
) The sequence of death for determining whether people die simultaneously can be
resolved by referring to common law presumptions.
What is the Law of Succession?
The Law of Succession is a branch of private law. It comprises those legal rules or
norms which regulate the devolution of a deceased person’s estate upon one or more
persons. Thus, it is concerned with what happens to a deceased person’s estate after
his death.
In which ways can succession take place? 3 Ways
In accordance with a valid Will being Testate Succession, through the operation of the
law of Intestate Succession and in terms of a Contract/Agreement – Successio ex
Contractu/Pactum Sucessorium.
On the death of a deceased, would an heir acquire ownership of the bequeathed
asset immediately?
No,the heir acquires a vested personal right against the executor to obtain transfer.
This means that the most that an heir can obtain at the death of a deceased in modern
SA law is a personal right against the executor of the estate. After the executor has
administered the estate in terms of the Administration of Estate Act and assuming that
the estate assets are greater than the liabilities, the executor will transfer the asset. This
is the earliest moment that ownership can take place as held in the Greenberg case
where the vesting of right takes place on the testator’s death.
List two exceptions to the rule that a person must be deceased before succession
can take place.
The Court pronounces a presumption of death and makes an order and Estate Massing.
What is the moment that the estate “falls open” is also known as? Delatio.
What is the difference between an Executor Testamentary and an Executor
Dative?
The Executor Testamentary is nominated by the testator in a valid will. The Master will
appoint the nominated person.
Executor Dative is when the deceased dies without a will and does not nominate an
executor.The Master will appoint an executor.
Executor DEF:
,A person authorized to act under letters of executorship granted or signed and sealed
by the Master.
2 Types of Executor ?
An executor testamentary who is motivated by the testator or in a void will and an
excuse or dative where the testator has not appointed an executor or a person dies
without a will where the Master appoints the executor.
Can an insolvent beneficiary repudiate his/her inheritance?
This issue was settled in the Wessels v De Jager case where the
SCA held that when inheritance becomes due and owing to an insolvent, he acquires a
competence to inherit, but not a right to inherit. This means that a beneficiary may
repudiate an inheritance and this does not cause prejudice to creditors.
If a beneficiary has not expressly or impliedly accepted an inheritance, it cannot be said
that that inheritance forms part of his estate. Since an insolvent has limited legal
capacity, the insolvent retains the right either to accept or to reject the inheritance.
This right does not pass to his trustee.
What is the power of assumption?
The testator may give the nominated executor the power of assumption. This means
that the appointed executor has the power to appoint a co-executor or agent to assist
with the winding-up of the estate.
When does the doctrine of election apply?
This is applicable in all cases where an acceptance of a benefit from a Will shall hold
some kind of burden/obligation. The beneficiary has to elect/choose to accept the
benefit that imposes a burden. This means if they accept the benefit then they must
accept the obligation but if a beneficiary elects to repudiate, they will receive nothing.
What is the difference between an heir and a legatee.
Heir:
A beneficiary who inherits a testator's entire estate, a portion of the estate or the residue
of the estate.
Legatee:
Testator leaves a specific asset (legacy) to a beneficiary (legatee). A legatee always
inherits a specific asset or a specific sum of money.
,EXEC DOESN'T DO DUTIES?
They may be removed from office with an application to the High Court, the beneficiary
can sue the third party on behalf of the estate as well as the executor can cede right of
action to the beneficiary.
Extra help ques :
1. Who/What is an executor?
2. List the different types of executors that can be appointed.
3. Who owns the assets when the testator dies? The executor has a kind of
official capacity to be the owner and deals with the assets. The Greenberg case shows
how South Africa doesn’t have universal succession and the benefit to the beneficiary is
a personal vested right until the assets have been transferred.
4. What is adiation?
The acceptance of the benefit from the estate of a testator or deceased either under
testate succession or under intestate succession.
5. What is repudiation?
The rejection of the benefit/ refusal to inherit a benefit from the estate of a testator or
deceased either under testate succession or under intestate succession.
6. Is an heir free to either adiate or repudiate any benefit?
7. How does adiation take place?
No formalities unless obligation of a condition attached then had to be in writing.
8. How does repudiation take place? In writing
9. When is the doctrine of election applicable? When obligation is involved.
Read Greenberg v Estate Greenberg 1955 (3) SA 361 (A):
, 1. What are the relevant facts? (What is the story? Why have the parties gone to
court?)
2. What is the legal issue? (What question does the Court have to look at and
decide on?)
3. What is the reasoning of the court? (What did the Court discuss? What the Court
find? Why did the make that finding/why did they reach that conclusion?)
Answer:
In the Greenburg case, the issue was when did the vesting of the right take place where
the court held it took place on the testator's death.
DIED SAME TIME CASE ANSWER:
According to the Ex parte Graham case, there is no presumption as to the order of
death in our law. When two people die in the same disaster the court will look at the
facts/evidence. If it is not possible to establish who died first, the court will find that they
died simultaneously.
This means that the two persons who died in the same accident, cannot inherit from
each other, because one has to survive a person to be able to inherit from him/her.
Survivorship is a precondition for inheriting and in this scenario, it is not clear who died
first.
Therefore, the court will find that XX and YY died simultaneously.
Sheldon’s will cannot be executed because Missy cannot inherit from him as she must
be alive at the time of inheriting.
Sheldon’s estate will therefore devolve in terms of the law of intestate succession and
his mother and father will inherit his estate.
Missy is survived by her husband and he will inherit her estate in terms of her will.
MCQ answer : In Ex parte Graham 1963 (4) SA (D), the court held that:
) The sequence of death for determining whether people die simultaneously can be
resolved by referring to common law presumptions.
