SU 1- INTRODUCTION
SCOPE AND APPLICATION OF LAW OF SUCCESSION IN SA:
The rules of the law of succession determines-
How much devolution must take place
Identify the persons entitled to inherit (beneficiaries)
The extent of the benefits
Rights and duties that persons who are inheriting may have
Succession may take place in 3 ways-
1. Valid will
2. Operation of the law of intestate succession in the absence of a valid will
3. Contract or agreement
NATURE AND ORIGIN OF THE LAW OF SUCCESSION: MIXED, PLURALISTIC
SYSTEM
Testate succession played a dominant role in Roman law-
Institution of an heir was a validity requirement for the Roman will
Roman testator had to bequeath a specific portion of his estate to his close relatives
South Africa inherited several testimony forms- Roman and Roman-Dutch law
Different provinces promulgated legislation based on English Wills Act of 1937
Testimony form- underhand or statutory will
Legitimate portion- repealed in the second half of the 19 th century in all provinces
1953- SA legislator intervened and revoked all provincial legislation with regard to
wills, testamentary forms and formalities
1953- Consolidated SA law by Wills Act 7 of 1953- came into operation 1 January
1954
Wills Act revoked previous statutory and common-law testamentary forms
Today- 1 testamentary form- underhand or statutory will
Mainly inspired by Roman-Dutch law but also had English law influence
Intestate succession-
Origins in former province of Holland before 1809
Two systems- Aasdomsrecht in North Holland and Schependomsrecht in South
Holland
Fundamental differences with regard to right of a surviving spouse to inherit
intestate created conflict SA
Position changed in 1988- Intestate Succession Act 81 of 1987
Intestate succession modified in 2010- RCLSA Reform of Customary Law of
Succession Act- deceased lived under a system of customary law
,Modern SA law of succession-
Mixed- origins in Roman-Dutch and English law
Pluralistic- elements of Western and African customary law
DUAL NATURE OF THE LAW OF SUCCESSION
SA two main branches-
1. Common law of succession- comprises testamentary and intestate succession rules
2. Customary law of succession- comprises only intestate succession rules
Common and customary law have equal status
Four issues-
1. Customary law is subject to two provisos- must be compatible with the Constitution
and may be amended by means of legislation
2. Decision to which law applies is made by applying choice of law rules that can be
derived from statute or judicial precedent
3. Customary law- not a single, unified system of law- comprises the different
customary laws of the various traditional communities in SA
Section 1(3) of Law of Evidence Amendment Act- rules for dealing with
conflict between different customary laws
4. Differences between the common and customary law is based on societal and
economic considerations
CUSTOMARY LAW
Main purpose is the preservation of the family unit and the community
after the death of the deceased
Heir steps into the shoes of the deceased
Acquires all the deceased’s rights and obligations
COMMON LAW
Rules are designed to regulate the transfer of the wealth of the deceased
Allow the deceased more freedom to dispose of his or her property as he
or she pleases
SOUTH AFRICAN LAW- WHERE DOES LAW OF SUCCESSION FIT IN
SOUTH AFRICAN LAW
NATIONAL LAW
MATERIAL LAW
Law of Succession
,TWO BRANCHES OF THE LAW OF SUCCESSION
TWO BRANCHES
COMMON LAW CUSTOMARY LAW
TESTATE: INTESTATE: INTESTATE:
Common law Common law rules Customary law rules
rules Intestate Intestate Succession Act
Wills Act 7 of Succession Act 81 81 of 1987
1953 of 1987 Reform of Customary
Law of Succession and
Regulations of Related
Matters Act 11 of 2009
TESTATE LAW OF SUCCESSION:
Valid will
In the absence of which will would apply- common law of succession should apply
with regard to questions of capacity and validity
Testator could indicate in will which law should apply- using common law notion of
freedom of testation
Formal validity- Section 3bis of the Wills Act
INTESTATE LAW OF SUCCESSION:
Deceased died without a valid will
Intestate Law of Succession Act 81 of 1987
Movables- law of the country where deceased was domiciled
Immovables- law of the country where property is situated
GROUND RULES OF SUCCESSION
1. Person must have died
2. Transfer of rights and/or duties with regard to assets and/or the status of the
deceased
3. Beneficiary should at the time of dies cedit be alive or have been conceived
4. Beneficiary must be competent to inherit
, 1. PERSON MUST HAVE DIED
Common and customary law
Exceptions to the rule-
A. Presumption of death
B. Estate massing
C. Commorientes
A. Presumption of death
Court pronounces and makes an order for division of the estate
Those who allege that the person is dead has to prove it
Body is present- easy. Body not present- not easy
Only when a court makes a presumption of death order can the person’s estate be
administered
Factors to be taken into consideration-
Long absence
Age
Position in society
Health
Circumstances of disappearance
B. Estate massing
Entire estates or parts of the estate of various testators are consolidated into a single
economic unit
For the purpose of testamentary disposal
Effect- surviving testator’s estate devolves according to the will of the first-dying
while he/she is alive
Person must be dead before succession can take place
C. Commorientes
Investigate who died first in order to chose beneficiaries- especially if victims are
family members
Order of death is a factual question- use medical and other evidence
If no evidence- court will accept that the deceased died simultaneously
Ex parte Graham-
Testatrix and her adopted son together with the rest of the passengers and crew- killed
when their plane crashed in a swamp
Testatrix will-
Left to her son ‘all my estate remaining at the time of the death of my father and
mother’
Immediate transfer of certain immovable property into the name of the son subject
to the right of her parents to remain in the home for the rest of their lives
SCOPE AND APPLICATION OF LAW OF SUCCESSION IN SA:
The rules of the law of succession determines-
How much devolution must take place
Identify the persons entitled to inherit (beneficiaries)
The extent of the benefits
Rights and duties that persons who are inheriting may have
Succession may take place in 3 ways-
1. Valid will
2. Operation of the law of intestate succession in the absence of a valid will
3. Contract or agreement
NATURE AND ORIGIN OF THE LAW OF SUCCESSION: MIXED, PLURALISTIC
SYSTEM
Testate succession played a dominant role in Roman law-
Institution of an heir was a validity requirement for the Roman will
Roman testator had to bequeath a specific portion of his estate to his close relatives
South Africa inherited several testimony forms- Roman and Roman-Dutch law
Different provinces promulgated legislation based on English Wills Act of 1937
Testimony form- underhand or statutory will
Legitimate portion- repealed in the second half of the 19 th century in all provinces
1953- SA legislator intervened and revoked all provincial legislation with regard to
wills, testamentary forms and formalities
1953- Consolidated SA law by Wills Act 7 of 1953- came into operation 1 January
1954
Wills Act revoked previous statutory and common-law testamentary forms
Today- 1 testamentary form- underhand or statutory will
Mainly inspired by Roman-Dutch law but also had English law influence
Intestate succession-
Origins in former province of Holland before 1809
Two systems- Aasdomsrecht in North Holland and Schependomsrecht in South
Holland
Fundamental differences with regard to right of a surviving spouse to inherit
intestate created conflict SA
Position changed in 1988- Intestate Succession Act 81 of 1987
Intestate succession modified in 2010- RCLSA Reform of Customary Law of
Succession Act- deceased lived under a system of customary law
,Modern SA law of succession-
Mixed- origins in Roman-Dutch and English law
Pluralistic- elements of Western and African customary law
DUAL NATURE OF THE LAW OF SUCCESSION
SA two main branches-
1. Common law of succession- comprises testamentary and intestate succession rules
2. Customary law of succession- comprises only intestate succession rules
Common and customary law have equal status
Four issues-
1. Customary law is subject to two provisos- must be compatible with the Constitution
and may be amended by means of legislation
2. Decision to which law applies is made by applying choice of law rules that can be
derived from statute or judicial precedent
3. Customary law- not a single, unified system of law- comprises the different
customary laws of the various traditional communities in SA
Section 1(3) of Law of Evidence Amendment Act- rules for dealing with
conflict between different customary laws
4. Differences between the common and customary law is based on societal and
economic considerations
CUSTOMARY LAW
Main purpose is the preservation of the family unit and the community
after the death of the deceased
Heir steps into the shoes of the deceased
Acquires all the deceased’s rights and obligations
COMMON LAW
Rules are designed to regulate the transfer of the wealth of the deceased
Allow the deceased more freedom to dispose of his or her property as he
or she pleases
SOUTH AFRICAN LAW- WHERE DOES LAW OF SUCCESSION FIT IN
SOUTH AFRICAN LAW
NATIONAL LAW
MATERIAL LAW
Law of Succession
,TWO BRANCHES OF THE LAW OF SUCCESSION
TWO BRANCHES
COMMON LAW CUSTOMARY LAW
TESTATE: INTESTATE: INTESTATE:
Common law Common law rules Customary law rules
rules Intestate Intestate Succession Act
Wills Act 7 of Succession Act 81 81 of 1987
1953 of 1987 Reform of Customary
Law of Succession and
Regulations of Related
Matters Act 11 of 2009
TESTATE LAW OF SUCCESSION:
Valid will
In the absence of which will would apply- common law of succession should apply
with regard to questions of capacity and validity
Testator could indicate in will which law should apply- using common law notion of
freedom of testation
Formal validity- Section 3bis of the Wills Act
INTESTATE LAW OF SUCCESSION:
Deceased died without a valid will
Intestate Law of Succession Act 81 of 1987
Movables- law of the country where deceased was domiciled
Immovables- law of the country where property is situated
GROUND RULES OF SUCCESSION
1. Person must have died
2. Transfer of rights and/or duties with regard to assets and/or the status of the
deceased
3. Beneficiary should at the time of dies cedit be alive or have been conceived
4. Beneficiary must be competent to inherit
, 1. PERSON MUST HAVE DIED
Common and customary law
Exceptions to the rule-
A. Presumption of death
B. Estate massing
C. Commorientes
A. Presumption of death
Court pronounces and makes an order for division of the estate
Those who allege that the person is dead has to prove it
Body is present- easy. Body not present- not easy
Only when a court makes a presumption of death order can the person’s estate be
administered
Factors to be taken into consideration-
Long absence
Age
Position in society
Health
Circumstances of disappearance
B. Estate massing
Entire estates or parts of the estate of various testators are consolidated into a single
economic unit
For the purpose of testamentary disposal
Effect- surviving testator’s estate devolves according to the will of the first-dying
while he/she is alive
Person must be dead before succession can take place
C. Commorientes
Investigate who died first in order to chose beneficiaries- especially if victims are
family members
Order of death is a factual question- use medical and other evidence
If no evidence- court will accept that the deceased died simultaneously
Ex parte Graham-
Testatrix and her adopted son together with the rest of the passengers and crew- killed
when their plane crashed in a swamp
Testatrix will-
Left to her son ‘all my estate remaining at the time of the death of my father and
mother’
Immediate transfer of certain immovable property into the name of the son subject
to the right of her parents to remain in the home for the rest of their lives
