LAW OF PERSONS : CHAPTER 7
Termination of Legal Subject
At death
1. When does death legally occur
- Courts rely on medical evidence to determine moment of death
o Molecular death
▪ 30 years ago:
• Brain and lung activity must stop
▪ Absence of heart and lung activity
▪ Body undergoes irreversible changes
▪ Follows brain death
▪ No transplants
o Brain death (somatic)
▪ Contemporary medical opinion
• Death continuing process
• Resulting in somatic death
▪ Brain death
▪ Occurs first
▪ Organ transplants
- Issue of distinction between molecular death & somatic death was raised in S v Williams
o The accused entered a farmhouse with intention of stealing
▪ Armed with a revolver
o According accused, the woman also had a firearm but before she shot him, he shot her
o Deceased was shot in the neck and was in a coma when hospitalised
▪ Transferred to a bigger hospital and even though she was breathing, was put on a
breathing apparatus (ventilator)
• Kept artificially breathing for 48 hours
o No heart activity afterwards
o Trial found
▪ Traditional method standards: moment of death – brain-stem death sets in and was
legally dead before ventilator
▪ Accused found guilty of murder
- Death of a natural person has important legal consequences
o Deceased’s marriage is dissolved
o Payment of his/ her life policies become due
o He/ she ceases to hold any office
o Rules of law of succession come into operation
▪ Inter alia
▪ Ownership of the deceased’s assets vest in the executor/ Master of the High Court
o Moment of death = important
▪ Indicates when the particular individual’s legal subjectivity comes to an end
• Because this moment sets the rules of the law of succession in motion
o It is extremely important to determine the exact moment of death
2. National Health Act 61 of 2003
- Death that ends Legal subject is defined as somatic death
- Because you can still perform transplants
3. Legal consequences of death
- E.G. Important to determine moment of death
- Medical evidence valuable but to address certain problematic issues we have to rely on legal rules
4. Problem areas: legal rules address problems
- As to order of death
- As to fact of death
- Commorientes
1
, Testratrix
- a woman
Commorientes who has
- when many people die in same disaster made a will
o Important to identify the order they died in or given a
▪ In order to establish whether one can inherit from another legacy.
• The reason why
o One person can only inherit from another is he/she s alive at time of
person’s death
- Ex parte Graham
o Woman bequeathed her estate to her adopted son
▪ Father stipulated: if her son died before her then her estate devolved to her mother
▪ The testatrix and her son died in same air crash
▪ The executor applied to the court for a declaratory order that the testatrix and her son
died
• Order was granted and estate was given to the mother
- In English and Roman-Dutch law the problem of commorientes was regulated by way of presumptions
o Solution was artificial
Commorientes
▪ Presumptions did not keep up with reality
- Persons who die
▪ As result
more/ less
• Roman-Dutch law presumptions not recognised
simultaneously in
- Current position of South African law
the same disaster
o When person die in disaster
- E.G. motor vehicle
▪ Presumption they died simultaneously unless contrary is proven
accident
- When a person contends that one of the commorientes survived another
- Earthquake
o Must be proved on a balance of probabilities
- It is common for spouses to appoint each other as heirs in their wills to provide for division of their
estates should they die simultaneously
- Greyling v Greyling
o Husband and wife involved in motor vehicle accident
o Evidence could have led to effect that the husband had lived a short while longer than his wife
o Court decided that the testators intended the word ‘simultaneous’ in joint will to indicate their
death on one occasion due to same disaster
▪ Regardless of time difference between deaths od deceased
o Judgement is in accordance with basic principle of law of succession
▪ A will should be interpreted in accordance with testators’ intention
- Important to determine order in which they died
Proof of death
- Death – normally proved by means of a death certificate
- When a person dies of natural causes
o Certificate is usually obtained from medical doctor
- Medical doctor may issue certificate only after he/she has ascertained that the person is dead either
o He/ she previously treated the person
o He/she examined the body of the deceased
- Certificate contains information regarding the
o Identity of the deceased
o Cause of death
o Certifies that person named therein is dead
- Sometimes a certificate cannot be obtained from a medical doctor
o E.G.
▪ Where the deceased had not previously been treated by the doctor
▪ Medical doctor could not examine the body of the deceased
o The person who is present at death or knows deceased or person arranging funeral
▪ Must give required notification to the Director-General of Home Affairs
- Where the death is a result of/ suspected result of unnatural causes
o Inquest is held
2
Termination of Legal Subject
At death
1. When does death legally occur
- Courts rely on medical evidence to determine moment of death
o Molecular death
▪ 30 years ago:
• Brain and lung activity must stop
▪ Absence of heart and lung activity
▪ Body undergoes irreversible changes
▪ Follows brain death
▪ No transplants
o Brain death (somatic)
▪ Contemporary medical opinion
• Death continuing process
• Resulting in somatic death
▪ Brain death
▪ Occurs first
▪ Organ transplants
- Issue of distinction between molecular death & somatic death was raised in S v Williams
o The accused entered a farmhouse with intention of stealing
▪ Armed with a revolver
o According accused, the woman also had a firearm but before she shot him, he shot her
o Deceased was shot in the neck and was in a coma when hospitalised
▪ Transferred to a bigger hospital and even though she was breathing, was put on a
breathing apparatus (ventilator)
• Kept artificially breathing for 48 hours
o No heart activity afterwards
o Trial found
▪ Traditional method standards: moment of death – brain-stem death sets in and was
legally dead before ventilator
▪ Accused found guilty of murder
- Death of a natural person has important legal consequences
o Deceased’s marriage is dissolved
o Payment of his/ her life policies become due
o He/ she ceases to hold any office
o Rules of law of succession come into operation
▪ Inter alia
▪ Ownership of the deceased’s assets vest in the executor/ Master of the High Court
o Moment of death = important
▪ Indicates when the particular individual’s legal subjectivity comes to an end
• Because this moment sets the rules of the law of succession in motion
o It is extremely important to determine the exact moment of death
2. National Health Act 61 of 2003
- Death that ends Legal subject is defined as somatic death
- Because you can still perform transplants
3. Legal consequences of death
- E.G. Important to determine moment of death
- Medical evidence valuable but to address certain problematic issues we have to rely on legal rules
4. Problem areas: legal rules address problems
- As to order of death
- As to fact of death
- Commorientes
1
, Testratrix
- a woman
Commorientes who has
- when many people die in same disaster made a will
o Important to identify the order they died in or given a
▪ In order to establish whether one can inherit from another legacy.
• The reason why
o One person can only inherit from another is he/she s alive at time of
person’s death
- Ex parte Graham
o Woman bequeathed her estate to her adopted son
▪ Father stipulated: if her son died before her then her estate devolved to her mother
▪ The testatrix and her son died in same air crash
▪ The executor applied to the court for a declaratory order that the testatrix and her son
died
• Order was granted and estate was given to the mother
- In English and Roman-Dutch law the problem of commorientes was regulated by way of presumptions
o Solution was artificial
Commorientes
▪ Presumptions did not keep up with reality
- Persons who die
▪ As result
more/ less
• Roman-Dutch law presumptions not recognised
simultaneously in
- Current position of South African law
the same disaster
o When person die in disaster
- E.G. motor vehicle
▪ Presumption they died simultaneously unless contrary is proven
accident
- When a person contends that one of the commorientes survived another
- Earthquake
o Must be proved on a balance of probabilities
- It is common for spouses to appoint each other as heirs in their wills to provide for division of their
estates should they die simultaneously
- Greyling v Greyling
o Husband and wife involved in motor vehicle accident
o Evidence could have led to effect that the husband had lived a short while longer than his wife
o Court decided that the testators intended the word ‘simultaneous’ in joint will to indicate their
death on one occasion due to same disaster
▪ Regardless of time difference between deaths od deceased
o Judgement is in accordance with basic principle of law of succession
▪ A will should be interpreted in accordance with testators’ intention
- Important to determine order in which they died
Proof of death
- Death – normally proved by means of a death certificate
- When a person dies of natural causes
o Certificate is usually obtained from medical doctor
- Medical doctor may issue certificate only after he/she has ascertained that the person is dead either
o He/ she previously treated the person
o He/she examined the body of the deceased
- Certificate contains information regarding the
o Identity of the deceased
o Cause of death
o Certifies that person named therein is dead
- Sometimes a certificate cannot be obtained from a medical doctor
o E.G.
▪ Where the deceased had not previously been treated by the doctor
▪ Medical doctor could not examine the body of the deceased
o The person who is present at death or knows deceased or person arranging funeral
▪ Must give required notification to the Director-General of Home Affairs
- Where the death is a result of/ suspected result of unnatural causes
o Inquest is held
2
