PVL 2602 Own notes:
Unit 1
General Background:
Persons entitles to inherit – The Beneficiaries
The extent of the benefits – Inheritance or legacies
Succession may take place in 3 ways:
1. In accordance with a valid will, Testamentary succession (Successio ex
testament)
2. Through the operation of the law of succession in the absence of a valid will
(succession ab intestate)
3. Ito a agreement or contract (pactum successorium)
Intestate law of succession: Bhe v Magistrate,Khayelitsha
• CC made major changes to the choice of law rules
• To be applied to the intestate estates of persons living under a system of
customary law.
• Court declared sec 1(4)(b) of intestate succession Act, sec 23 of Black Admin
Act and the regulations promulgated under this act unconstitutional and
invalid.
• As from 15 Oct 2004 Intestate Succession Act had to apply to ALL intestate
estates.
• The RCLSA was promulgated to modify the customary law of succession.
• It came into operation on 20 September 2010.
Ground Rules of succession:
• Person must have died – Estate Orpen v Estate Atkinson
• Exceptions:
o Presumption of death
o Estate Massing
o Number of people died in same disaster (commorientes)
▪ Ex parte Graham – Evidence was such that no other conclusion
than one of simultaneous death could be reached.
• Transfer of rights and duties wrt assets and status of deceased
o Dies Cedit and Dies Venit
o Somebody must take the place of the deceased testator wrt ownership
of his assets or in the case of customary law his status.
o Common law – there is a transfer of rights which belonged to the
deceased.
o Customary Law- depends on the type of property and status of
deceased.
• Beneficiary should at the time of dies cedit be alive or conceived.
• Beneficiary must be competent to inherit.
, Unit 2: Intestate succession
Basic Concepts:
➔ Descendant
➢ Person who is descendant ito Intestate Succession Act
➢ Person during lifetime of deceased was accepted by deceased person
in accordance with customary law as his own chils
➢ Woman who was involved in a substitute marriage or woman-to-
woman marriage.
➔ Ascendant – Ancestors of the deceased
➔ Collateral – Person who is related to the deceased because of same ancestor
➔ Stirps/Stirpes
➢ Line of decedents of common ancestry
➢ Includes every descendant of the deceased who survived the
deceased or predeceased of the descendant.
➢ IOW a surviving child of a predeceased child.
➔ Succession by representation per stirpes
➢ Inherits on the basis of his blood relationship with a predeceased heir
of the deceased whose place he fills.
When does a person die intestate:
1. Without leaving a will at all
2. Executed a valid will which has subsequently become wholly or partly
inoperative for some or other reason.
3. Valid will that fails to dispose of all the deceased assets
4. Leaving a document purporting to be a will, but does not comply with the
formalities for wills and is not condoned ito sec 2(3) of Wills Act.
Vesting of an Intestate inheritance:
Harris v Assumed Administrator, Estate MacGregor
➢ Where deceased dies without having made a valid will at all, his intestate
estate vest on the date of his death when his intestate heirs have to be
determined
➢ When dies leaving a valid will which took effect on his death but subsequently
became inoperative his intestate estate vest on the date it first became
factually certain that his will became inoperative.
Capacity to inherit:
Only Natural persons may inherit
Extramarital, adulterine and incestuous children
Children born of result of artificial fertilisation
Adopted Children
Surrogacy Arrangements
Unborn Children
, Term Spouse and survivor ito Intestate Succession Act 81 of 1987 and Maintenance
of Surviving Spouses Act 27 of 1990 as decided by court in Hassam v Jacobs. (10)
The interpretation of the words spouse and survivor:
• As referred in Acts
• Were interpreted by our court
• Against the background of the Constitution.
Hassam v Jacobs:
• The CC decided that
• Woman party to polygynous Muslim Marriage concluded under Muslim private
law.
• Is a spouse for purpose of claiming or inheriting ito intestate succession
• From the estate of the deceased spouse.
Court a quo The High Court:
• Declared section 1(4)(f) of ISA to be inconsistent with Cons
• To extend that it make provision for only one spouse ito Muslim marriage to
be heir.
• Declaration was referred to CC for confirmation by the Constitution.
Constitutional Court:
• Confirmed declaration of invalidity by HC.
• As to MSSA held the objective of the act
• Which is lessen to the dependence of widows on family benevolence
• Would be frustrated if continued exclusions of widows
• In polygynous MM was to persist.
Further Held:
1. Act violates applicants (wife’s) right to equality
2. Marital status
3. And Gender
4. Exclusion not justifiable in society guided by principles of equality, fairness,
equity, social progress, justice, human dignity and freedom.
In Conclusion:
• Court held that word spouse in act not reasonable capable of being
understood to include
• More than one spouse in the context
• Of a polygynous marriage.
Remedy the defect:
The words “or spouses”
To be read-in after
Each of the word “spouse” in Act
Unit 1
General Background:
Persons entitles to inherit – The Beneficiaries
The extent of the benefits – Inheritance or legacies
Succession may take place in 3 ways:
1. In accordance with a valid will, Testamentary succession (Successio ex
testament)
2. Through the operation of the law of succession in the absence of a valid will
(succession ab intestate)
3. Ito a agreement or contract (pactum successorium)
Intestate law of succession: Bhe v Magistrate,Khayelitsha
• CC made major changes to the choice of law rules
• To be applied to the intestate estates of persons living under a system of
customary law.
• Court declared sec 1(4)(b) of intestate succession Act, sec 23 of Black Admin
Act and the regulations promulgated under this act unconstitutional and
invalid.
• As from 15 Oct 2004 Intestate Succession Act had to apply to ALL intestate
estates.
• The RCLSA was promulgated to modify the customary law of succession.
• It came into operation on 20 September 2010.
Ground Rules of succession:
• Person must have died – Estate Orpen v Estate Atkinson
• Exceptions:
o Presumption of death
o Estate Massing
o Number of people died in same disaster (commorientes)
▪ Ex parte Graham – Evidence was such that no other conclusion
than one of simultaneous death could be reached.
• Transfer of rights and duties wrt assets and status of deceased
o Dies Cedit and Dies Venit
o Somebody must take the place of the deceased testator wrt ownership
of his assets or in the case of customary law his status.
o Common law – there is a transfer of rights which belonged to the
deceased.
o Customary Law- depends on the type of property and status of
deceased.
• Beneficiary should at the time of dies cedit be alive or conceived.
• Beneficiary must be competent to inherit.
, Unit 2: Intestate succession
Basic Concepts:
➔ Descendant
➢ Person who is descendant ito Intestate Succession Act
➢ Person during lifetime of deceased was accepted by deceased person
in accordance with customary law as his own chils
➢ Woman who was involved in a substitute marriage or woman-to-
woman marriage.
➔ Ascendant – Ancestors of the deceased
➔ Collateral – Person who is related to the deceased because of same ancestor
➔ Stirps/Stirpes
➢ Line of decedents of common ancestry
➢ Includes every descendant of the deceased who survived the
deceased or predeceased of the descendant.
➢ IOW a surviving child of a predeceased child.
➔ Succession by representation per stirpes
➢ Inherits on the basis of his blood relationship with a predeceased heir
of the deceased whose place he fills.
When does a person die intestate:
1. Without leaving a will at all
2. Executed a valid will which has subsequently become wholly or partly
inoperative for some or other reason.
3. Valid will that fails to dispose of all the deceased assets
4. Leaving a document purporting to be a will, but does not comply with the
formalities for wills and is not condoned ito sec 2(3) of Wills Act.
Vesting of an Intestate inheritance:
Harris v Assumed Administrator, Estate MacGregor
➢ Where deceased dies without having made a valid will at all, his intestate
estate vest on the date of his death when his intestate heirs have to be
determined
➢ When dies leaving a valid will which took effect on his death but subsequently
became inoperative his intestate estate vest on the date it first became
factually certain that his will became inoperative.
Capacity to inherit:
Only Natural persons may inherit
Extramarital, adulterine and incestuous children
Children born of result of artificial fertilisation
Adopted Children
Surrogacy Arrangements
Unborn Children
, Term Spouse and survivor ito Intestate Succession Act 81 of 1987 and Maintenance
of Surviving Spouses Act 27 of 1990 as decided by court in Hassam v Jacobs. (10)
The interpretation of the words spouse and survivor:
• As referred in Acts
• Were interpreted by our court
• Against the background of the Constitution.
Hassam v Jacobs:
• The CC decided that
• Woman party to polygynous Muslim Marriage concluded under Muslim private
law.
• Is a spouse for purpose of claiming or inheriting ito intestate succession
• From the estate of the deceased spouse.
Court a quo The High Court:
• Declared section 1(4)(f) of ISA to be inconsistent with Cons
• To extend that it make provision for only one spouse ito Muslim marriage to
be heir.
• Declaration was referred to CC for confirmation by the Constitution.
Constitutional Court:
• Confirmed declaration of invalidity by HC.
• As to MSSA held the objective of the act
• Which is lessen to the dependence of widows on family benevolence
• Would be frustrated if continued exclusions of widows
• In polygynous MM was to persist.
Further Held:
1. Act violates applicants (wife’s) right to equality
2. Marital status
3. And Gender
4. Exclusion not justifiable in society guided by principles of equality, fairness,
equity, social progress, justice, human dignity and freedom.
In Conclusion:
• Court held that word spouse in act not reasonable capable of being
understood to include
• More than one spouse in the context
• Of a polygynous marriage.
Remedy the defect:
The words “or spouses”
To be read-in after
Each of the word “spouse” in Act
