SCL1501 SUMMARY
STUDY NOTES 2022
, 1
CLS cc
Succession Summary
Definitions
Law of A branch of private law, it comprises of those legal rules or norms
Succession which regulate the devolution of a deceased person’s estate
testamentary a document which defines any one of the three essential elements of a
writing bequest: (Ex Parte Davies)
(1) the property bequeathed
(2) the extent of the interest bequeathed
(3) the beneficiary
Armchair the evidence which the court uses to place itself in the position in
evidence which the testator was at the time of the making of the will by paying
attention to all the relevant facts and circumstances which were
known to the testator
extrinsic evidence outside the document itself, in other words evidence of facts
evidence which do not appear from the document itself
bequest price when a legacy is bequeathed subject to the beneficiary paying a
stipulated price to the estate or a third person
Attestation a clause that appears at the end of a will in which it is declared that
clause all the parties were present and signed in each other's presence
(not compulsory)
Residue of the What remains after the payment of funeral expenses, administration
estate costs, tax, deceased’s debts and the legatees
Juristic Act an act which is intended to create or alter rights and obligations; an
act to which the law attaches at least some of the consequences
envisaged by the acting party or parties
multilateral a juristic act which is performed through the cooperation of two or
juristic act more persons. E.g. contract
unilateral a juristic act performed by the activity of only one person. E.g.
juristic act donation
prelegacy a special bequest which, under testamentary instruction, enjoys
preference over all other bequests
dies cedit the time when a beneficiary gets a vested right to claim delivery of the
bequeathed benefit unconditionally (whether or not the exercise of
this right is delayed until some future date which is certain to arrive).
The moment in time when the beneficiary acquires a vested right.
dies venit the time when the beneficiary's right to claim delivery of the
bequeathed benefit becomes enforceable. Dies venit is the
time when a beneficiary may enjoy the property which he or she has
inherited or the day when delivery of the benefit has to take place.
unconditional a bequest in which the testator leaves property to the beneficiary
(absolute) without any conditions attached
bequest
conditional a bequest which depends on a future event which is uncertain, in the
bequest sense that it may or may not occur
Critical Law Studies cc (c)
, 2
CLS cc
Succession Summary
time clause a bequest that is subject to an event that will certainly happen in the
future, although it may be certain or uncertain when it will arrive.
suspensive the beneficiary does not get a vested finally established right to the
condition benefit unless and until a particular uncertain future event takes
place.
suspensive time where the beneficiary will receive the benefit only at a certain future
clause time.
terminative The bequest is made to terminate if a particular uncertain future
(resolutive) event of affairs takes place.
condition
terminative the beneficiaries' rights are terminated when a certain time arrives.
time clause
modus a qualification added to a gift or testamentary disposition, whereby
the person benefitted is required to devote the property he or she
receives, or the value thereof, in whole or in part to a specific purpose
direct occurs where a testator names a substitute or even a whole series of
substitution substitutes who are to inherit if the instituted heir or legatee does not
inherit. Direct substitution is substitution in the alternative.
fideicommissary occurs where a testator directs in his or her will that, after his or her
substitution death, a series of successors (heirs or legatees) are to inherit his or
her whole estate or part of it, or specific assets, so that the bequest
passes from one successor to another. The different successors thus
inherit the same benefit one after the other. The first successor is
called the ``fiduciary'', and every beneficiary after is called a
``fideicommissary''.
fideicommissum where property is left to a beneficiary, subject to the condition that as
residui much of it as may be left at the time of the beneficiary's death is to
devolve upon another person
si sine liberis a clause that stipulates that if a beneficiary dies without children (si
decesserit sine liberis decesserit) after the testator, the property must pass to a
clause third party
usufruct a personal servitude that occurs where a testator bequeaths
ownership of a thing to one person, and the right to use the thing, to
take its fruits and to enjoy the thing, to someone else (the
usufructuary).
Treuhand trust, not for oneself but for another or for a particular impersonal
purpose
bewind trust the arrangement through which the ownership in property of one
person is by virtue of a trust instrument made over or bequeathed to
the beneficiaries designated in the trust instrument, which property is
placed under the control of another person, the trustee, to be
administered or disposed of according to the provisions of the trust
instrument for the benefit of the person or class of persons designated
in the trust instrument or for the achievement of the object stated in
the trust instrument
Critical Law Studies cc (c)
, 3
CLS cc
Succession Summary
INTRODUCTION
Succession is divided into testate and intestate.
At Roman law the heirs inherited all assets and liabilities and the legatee only
assets. Today this position has changed- neither inherit liabilities.
Succession may take place in one of three ways, namely:
1. Testate
2. Intestate
3. Pactum successorium (contract) - In our law, an antenuptial contract is the
only contract in which a person may regulate succession to the assets in
his or her estate.
MOMENT OF DEATH - Brain death is sufficient. (S v Williams)
PRESUMPTION OF DEATH - When a person dies a death certificate is issued
and the estate of such a person can be wound up. However, if a person has
disappeared and is thought to be dead but the body cannot be found one needs to
approach the High Court to grant an order presuming the death of that person,
and only then may his or her estate be administered. The estate of the missing
person can be wound up subject to the heirs furnishing of security.
(Beaglehole: the person was missing for thirty years and the court would not
grant a POD order)
PERSONS WHO DIE IN THE SAME DISASTER - When two or more people are in
the same disaster and it can’t be established who died first, it would be found
that they died simultaneously (commorientes).
Ex parte Graham: a woman and her adopted son were killed in an air disaster in
the Cameroons
Ex parte Chodos: a mother and her daughter had presumably been murdered by
the Nazis.
In both cases because of a lack of evidence to the contrary, the court found in
both cases that it had to be presumed that they had died simultaneously.
Critical Law Studies cc (c)
STUDY NOTES 2022
, 1
CLS cc
Succession Summary
Definitions
Law of A branch of private law, it comprises of those legal rules or norms
Succession which regulate the devolution of a deceased person’s estate
testamentary a document which defines any one of the three essential elements of a
writing bequest: (Ex Parte Davies)
(1) the property bequeathed
(2) the extent of the interest bequeathed
(3) the beneficiary
Armchair the evidence which the court uses to place itself in the position in
evidence which the testator was at the time of the making of the will by paying
attention to all the relevant facts and circumstances which were
known to the testator
extrinsic evidence outside the document itself, in other words evidence of facts
evidence which do not appear from the document itself
bequest price when a legacy is bequeathed subject to the beneficiary paying a
stipulated price to the estate or a third person
Attestation a clause that appears at the end of a will in which it is declared that
clause all the parties were present and signed in each other's presence
(not compulsory)
Residue of the What remains after the payment of funeral expenses, administration
estate costs, tax, deceased’s debts and the legatees
Juristic Act an act which is intended to create or alter rights and obligations; an
act to which the law attaches at least some of the consequences
envisaged by the acting party or parties
multilateral a juristic act which is performed through the cooperation of two or
juristic act more persons. E.g. contract
unilateral a juristic act performed by the activity of only one person. E.g.
juristic act donation
prelegacy a special bequest which, under testamentary instruction, enjoys
preference over all other bequests
dies cedit the time when a beneficiary gets a vested right to claim delivery of the
bequeathed benefit unconditionally (whether or not the exercise of
this right is delayed until some future date which is certain to arrive).
The moment in time when the beneficiary acquires a vested right.
dies venit the time when the beneficiary's right to claim delivery of the
bequeathed benefit becomes enforceable. Dies venit is the
time when a beneficiary may enjoy the property which he or she has
inherited or the day when delivery of the benefit has to take place.
unconditional a bequest in which the testator leaves property to the beneficiary
(absolute) without any conditions attached
bequest
conditional a bequest which depends on a future event which is uncertain, in the
bequest sense that it may or may not occur
Critical Law Studies cc (c)
, 2
CLS cc
Succession Summary
time clause a bequest that is subject to an event that will certainly happen in the
future, although it may be certain or uncertain when it will arrive.
suspensive the beneficiary does not get a vested finally established right to the
condition benefit unless and until a particular uncertain future event takes
place.
suspensive time where the beneficiary will receive the benefit only at a certain future
clause time.
terminative The bequest is made to terminate if a particular uncertain future
(resolutive) event of affairs takes place.
condition
terminative the beneficiaries' rights are terminated when a certain time arrives.
time clause
modus a qualification added to a gift or testamentary disposition, whereby
the person benefitted is required to devote the property he or she
receives, or the value thereof, in whole or in part to a specific purpose
direct occurs where a testator names a substitute or even a whole series of
substitution substitutes who are to inherit if the instituted heir or legatee does not
inherit. Direct substitution is substitution in the alternative.
fideicommissary occurs where a testator directs in his or her will that, after his or her
substitution death, a series of successors (heirs or legatees) are to inherit his or
her whole estate or part of it, or specific assets, so that the bequest
passes from one successor to another. The different successors thus
inherit the same benefit one after the other. The first successor is
called the ``fiduciary'', and every beneficiary after is called a
``fideicommissary''.
fideicommissum where property is left to a beneficiary, subject to the condition that as
residui much of it as may be left at the time of the beneficiary's death is to
devolve upon another person
si sine liberis a clause that stipulates that if a beneficiary dies without children (si
decesserit sine liberis decesserit) after the testator, the property must pass to a
clause third party
usufruct a personal servitude that occurs where a testator bequeaths
ownership of a thing to one person, and the right to use the thing, to
take its fruits and to enjoy the thing, to someone else (the
usufructuary).
Treuhand trust, not for oneself but for another or for a particular impersonal
purpose
bewind trust the arrangement through which the ownership in property of one
person is by virtue of a trust instrument made over or bequeathed to
the beneficiaries designated in the trust instrument, which property is
placed under the control of another person, the trustee, to be
administered or disposed of according to the provisions of the trust
instrument for the benefit of the person or class of persons designated
in the trust instrument or for the achievement of the object stated in
the trust instrument
Critical Law Studies cc (c)
, 3
CLS cc
Succession Summary
INTRODUCTION
Succession is divided into testate and intestate.
At Roman law the heirs inherited all assets and liabilities and the legatee only
assets. Today this position has changed- neither inherit liabilities.
Succession may take place in one of three ways, namely:
1. Testate
2. Intestate
3. Pactum successorium (contract) - In our law, an antenuptial contract is the
only contract in which a person may regulate succession to the assets in
his or her estate.
MOMENT OF DEATH - Brain death is sufficient. (S v Williams)
PRESUMPTION OF DEATH - When a person dies a death certificate is issued
and the estate of such a person can be wound up. However, if a person has
disappeared and is thought to be dead but the body cannot be found one needs to
approach the High Court to grant an order presuming the death of that person,
and only then may his or her estate be administered. The estate of the missing
person can be wound up subject to the heirs furnishing of security.
(Beaglehole: the person was missing for thirty years and the court would not
grant a POD order)
PERSONS WHO DIE IN THE SAME DISASTER - When two or more people are in
the same disaster and it can’t be established who died first, it would be found
that they died simultaneously (commorientes).
Ex parte Graham: a woman and her adopted son were killed in an air disaster in
the Cameroons
Ex parte Chodos: a mother and her daughter had presumably been murdered by
the Nazis.
In both cases because of a lack of evidence to the contrary, the court found in
both cases that it had to be presumed that they had died simultaneously.
Critical Law Studies cc (c)
