Week 1:
Guided questions:
1. What is the law of succession?
- Legal rules which regulate the devolution of a deceased’s estate upon one or more
persons.
2. How does the law of succession operate in South Africa? /What are the rules of
succession?
- (Find answer in textbook)
3. List the ways in which succession can take place
- Testate succession
- Intestate succession
- Contract/ agreement
4. What is testate succession?
- When there has been a valid will; or
Invalid will but the will is condoned in terms of section 2 (3) of the Wills Act.
5. What is intestate succession?
- No will; or
Testator dies leaving an invalid will, which cannot be condoned.
Succession intro lecture:
- Succession tells us what to do with a deceased persons money
- Law of succession is there to protect members of society.
- It protects both the person who passed on + family members left behind
- Goes beyond formalistic rules to protect people
- Needs to evolve with time to protect all members of society
- Testator = the person who drafts a will
Inside a will:
Revocation clause = very important. Cancels/ revokes all the person’s previous wills.
Executor:
- Upon the death of deceased, is granted authority to administer the estate.
- Divides the estate
- Needs an account of deceased’s assets and liabilities
- Draws up a liquidation and distribution account
- Pays the deceased’s outstanding debt
, - Determines who is going to get what.
Either the testator or a Master can appoint the executor
Trustee:
(The deceased might have minor children when he or she dies)
(Wants to ensure that the children will be looked after)
- The testator will appoint a trustee to administer a trust on behalf of the children
- Will stipulate an age until such time that the trust must be administered
- Trust used for education, maintenance expenses etc.
Exclusion of Matrimonial Property:
- Is a common clause found in wills.
- When testator does not want children’s spouses or future spouses to benefit from the
inheritance, should there be a divorce.
- (If their child is married in CoP or out of CoP with accrual.)
Right of Repudiation:
- Also, common
- If named in a will, can refuse your inheritance, do not have to take it.
Cremation:
- Stipulates what will happen to their body when they die.
Collation clause:
- money that has already been given to a beneficiary during the testator’s lifetime is
taken into consideration (collated)
- beneficiary might get this money deducted from their inheritance if the testator
stipulates this in their will.
The deceased estate:
- in order for the law of succession to kick in, we need to have a deceased estate to
work with.
- A deceased estate consists of the assets and liabilities of a deceased person at the
time of his or her death. The estate therefore consists not only of property, but also
of any debts that the deceased incurred before his or her death
, A deceased estate is NOT a legal person
- Cannot sue or be sued in its own name (e.g., if the estate wants to sue someone
because money is outstanding, the executor will do this on its behalf)
- Executor must sue in his/her representative capacity
If someone in a case has “N.O” written next to their name = it
simply means that they are acting in their official capacity and that
named person is the executor.
Ask yourself: if someone dies who owns the property?
Who owns the property in the period between the death of the deceased and the transfer of
ownership of the deceased’s assets?
Does the estate inherit the asset?
NO, the estate cannot own property because it is NOT a legal person.
- The only right that the heir has is a vested personal right
- So, no one owns the property during this period, however, the heir has a personal right
to claim from the testator’s executor, at a future date, the delivery of the asset, which
in most cases would amount to the transfer of ownership
- This would be to meet the executor’s obligation of transferring of ownership.
- Once the ownership has been transferred, then we can say that the heir will have a real
right. = this means that they are now owners of the property, and they can use and
own the property.
Ownership of assets is still unsettled in our law
- The Greenberg case illustrates that the executor has bare dominium over the assets at
the time of death of the person.
- Until the assets ownership has been transferred, the heirs only have a vested personal
right to claim the delivery of the assets
- Only then does ownership take place.
, The Legal Position of the Executor:
- He or she must be appointed, cannot just be anyone.
Two types of executors:
1. Executor Testamentary
Nominated by a testator in a valid will
2. Executor Dative
Testator did not nominate an executor or person dies without a
will. The Master will appoint an executor.
- Not all estates require certified executors
- If an estate is <R250 000, then the testator can appoint someone who is not an
executor
- This person must act in good faith
- Testators may allow for Power of Assumption in their will. (I will be recommending
this to my client often.)
- allows the executor to appoint a co-executor to assist them if the initial executor is
not experienced or familiar with winding up an estate.
- The same process that applies for when an executor is appointed, is applied when a
co-executor is appointed.
- The Master would have to agree to appoint the co-executor and would then issue
letters of executorship to the co-executor as well.
What if an executor makes a wrong distribution?
The executor can recover that money (section 50 read with section
23(5) of the Administration of Estates Act.)
What if an executor refuses to institute proceedings to recover estate debts or to make claims?
3 options
Option 1: remove the executor from office
Option 2: The beneficiary can sue but the executor can be cited as the nominal defendant
Option 3: the executor can cede the right of action to the beneficiary (this rarely happens in practice)
ADIATION AND REPUDIATION
• South African Law:
• Beneficiary is free to adiate or to repudiate any benefit
• Adiation:
• The acceptance of a benefit from the estate of a testator or deceased
either under testate succession or under intestate succession.
• Repudiation:
Guided questions:
1. What is the law of succession?
- Legal rules which regulate the devolution of a deceased’s estate upon one or more
persons.
2. How does the law of succession operate in South Africa? /What are the rules of
succession?
- (Find answer in textbook)
3. List the ways in which succession can take place
- Testate succession
- Intestate succession
- Contract/ agreement
4. What is testate succession?
- When there has been a valid will; or
Invalid will but the will is condoned in terms of section 2 (3) of the Wills Act.
5. What is intestate succession?
- No will; or
Testator dies leaving an invalid will, which cannot be condoned.
Succession intro lecture:
- Succession tells us what to do with a deceased persons money
- Law of succession is there to protect members of society.
- It protects both the person who passed on + family members left behind
- Goes beyond formalistic rules to protect people
- Needs to evolve with time to protect all members of society
- Testator = the person who drafts a will
Inside a will:
Revocation clause = very important. Cancels/ revokes all the person’s previous wills.
Executor:
- Upon the death of deceased, is granted authority to administer the estate.
- Divides the estate
- Needs an account of deceased’s assets and liabilities
- Draws up a liquidation and distribution account
- Pays the deceased’s outstanding debt
, - Determines who is going to get what.
Either the testator or a Master can appoint the executor
Trustee:
(The deceased might have minor children when he or she dies)
(Wants to ensure that the children will be looked after)
- The testator will appoint a trustee to administer a trust on behalf of the children
- Will stipulate an age until such time that the trust must be administered
- Trust used for education, maintenance expenses etc.
Exclusion of Matrimonial Property:
- Is a common clause found in wills.
- When testator does not want children’s spouses or future spouses to benefit from the
inheritance, should there be a divorce.
- (If their child is married in CoP or out of CoP with accrual.)
Right of Repudiation:
- Also, common
- If named in a will, can refuse your inheritance, do not have to take it.
Cremation:
- Stipulates what will happen to their body when they die.
Collation clause:
- money that has already been given to a beneficiary during the testator’s lifetime is
taken into consideration (collated)
- beneficiary might get this money deducted from their inheritance if the testator
stipulates this in their will.
The deceased estate:
- in order for the law of succession to kick in, we need to have a deceased estate to
work with.
- A deceased estate consists of the assets and liabilities of a deceased person at the
time of his or her death. The estate therefore consists not only of property, but also
of any debts that the deceased incurred before his or her death
, A deceased estate is NOT a legal person
- Cannot sue or be sued in its own name (e.g., if the estate wants to sue someone
because money is outstanding, the executor will do this on its behalf)
- Executor must sue in his/her representative capacity
If someone in a case has “N.O” written next to their name = it
simply means that they are acting in their official capacity and that
named person is the executor.
Ask yourself: if someone dies who owns the property?
Who owns the property in the period between the death of the deceased and the transfer of
ownership of the deceased’s assets?
Does the estate inherit the asset?
NO, the estate cannot own property because it is NOT a legal person.
- The only right that the heir has is a vested personal right
- So, no one owns the property during this period, however, the heir has a personal right
to claim from the testator’s executor, at a future date, the delivery of the asset, which
in most cases would amount to the transfer of ownership
- This would be to meet the executor’s obligation of transferring of ownership.
- Once the ownership has been transferred, then we can say that the heir will have a real
right. = this means that they are now owners of the property, and they can use and
own the property.
Ownership of assets is still unsettled in our law
- The Greenberg case illustrates that the executor has bare dominium over the assets at
the time of death of the person.
- Until the assets ownership has been transferred, the heirs only have a vested personal
right to claim the delivery of the assets
- Only then does ownership take place.
, The Legal Position of the Executor:
- He or she must be appointed, cannot just be anyone.
Two types of executors:
1. Executor Testamentary
Nominated by a testator in a valid will
2. Executor Dative
Testator did not nominate an executor or person dies without a
will. The Master will appoint an executor.
- Not all estates require certified executors
- If an estate is <R250 000, then the testator can appoint someone who is not an
executor
- This person must act in good faith
- Testators may allow for Power of Assumption in their will. (I will be recommending
this to my client often.)
- allows the executor to appoint a co-executor to assist them if the initial executor is
not experienced or familiar with winding up an estate.
- The same process that applies for when an executor is appointed, is applied when a
co-executor is appointed.
- The Master would have to agree to appoint the co-executor and would then issue
letters of executorship to the co-executor as well.
What if an executor makes a wrong distribution?
The executor can recover that money (section 50 read with section
23(5) of the Administration of Estates Act.)
What if an executor refuses to institute proceedings to recover estate debts or to make claims?
3 options
Option 1: remove the executor from office
Option 2: The beneficiary can sue but the executor can be cited as the nominal defendant
Option 3: the executor can cede the right of action to the beneficiary (this rarely happens in practice)
ADIATION AND REPUDIATION
• South African Law:
• Beneficiary is free to adiate or to repudiate any benefit
• Adiation:
• The acceptance of a benefit from the estate of a testator or deceased
either under testate succession or under intestate succession.
• Repudiation:
