LAW OF SUCCESSION
Private Law 273
JANUARY 1, 2022
STELLENBOSH UNIVERSITY
Matieland
,
,
, Law of succession
Death and Survivorship
Death is a prerequisite for succession to take place
Legal definition of death:
Traditional approach – dead when lungs and heart stops working.
Modern medical approach – When there is no longer brain activity.
(S v Williams 1986): When a person is kept alive by means of a respirator, the disconnection of that
respirator is not what causes the death.
General rule:
For succession to take place a person must have died.
Exceptions
- Presumption of death order
- Estate massing: husband and wife both own house and separate property. They decide to
merge into one economic unit. Husband says if he passes on and the wife is still alive,
property goes to children. Wife’s estate is dissolved while she is still alive.
Commorientes
Applies when several people are killed in the same disaster.
Who died first:
- Common law presumptions: no longer applicable
- English law presumption: no longer applicable
General rule today: If the sequence in which people died cannot be established, there is no
presumption of survival or simultaneous death. In such an instance, the time of death of the
deceased is a question of fact which is established without the help of presumption.
Ex Parte Graham 1963 (Prescribed)
Facts: testator left estate to son. If her son should die before her, the estate should go to her
mother. They both died at the same time in a plane crash. Registrar of deeds wanted an order of the
court declaring that the adopted son died before or simultaneously with the testator before the
immovable property could be transferred to the mother.
Legal issue: Application for a declaration that the testator and her adopted son died simultaneously
Finding: The question of who died first is a question of fact depending on the circumstances of each
case. The evidence was such that no other conclusion that one simultaneous death could be
reached.
Greyling v Greyling 1978 (Prescribed)
Clause in a will dealing with simultaneous death
Private Law 273
JANUARY 1, 2022
STELLENBOSH UNIVERSITY
Matieland
,
,
, Law of succession
Death and Survivorship
Death is a prerequisite for succession to take place
Legal definition of death:
Traditional approach – dead when lungs and heart stops working.
Modern medical approach – When there is no longer brain activity.
(S v Williams 1986): When a person is kept alive by means of a respirator, the disconnection of that
respirator is not what causes the death.
General rule:
For succession to take place a person must have died.
Exceptions
- Presumption of death order
- Estate massing: husband and wife both own house and separate property. They decide to
merge into one economic unit. Husband says if he passes on and the wife is still alive,
property goes to children. Wife’s estate is dissolved while she is still alive.
Commorientes
Applies when several people are killed in the same disaster.
Who died first:
- Common law presumptions: no longer applicable
- English law presumption: no longer applicable
General rule today: If the sequence in which people died cannot be established, there is no
presumption of survival or simultaneous death. In such an instance, the time of death of the
deceased is a question of fact which is established without the help of presumption.
Ex Parte Graham 1963 (Prescribed)
Facts: testator left estate to son. If her son should die before her, the estate should go to her
mother. They both died at the same time in a plane crash. Registrar of deeds wanted an order of the
court declaring that the adopted son died before or simultaneously with the testator before the
immovable property could be transferred to the mother.
Legal issue: Application for a declaration that the testator and her adopted son died simultaneously
Finding: The question of who died first is a question of fact depending on the circumstances of each
case. The evidence was such that no other conclusion that one simultaneous death could be
reached.
Greyling v Greyling 1978 (Prescribed)
Clause in a will dealing with simultaneous death
