ERF222: Law of Succession
Chapter 1: Introduction
1. Background to law of succession
Deceased estate person dies leaving behind estate to be distributed
amongst heirs
Functions of rules of law of succession:
1. Determine how estate divided
2. Identify
Persons entitled to inherit
(beneficiaries)
Extent of benefits
(inheritances/legacies)
3. Determines rights & duties that persons may have deceased’s estate
Succession takes place in 3 ways:
A. Testate succession = valid will
B. Intestate succession = absence of will
C. Contract/agreement
- (general rule = cannot enter into will via contract)
[Definitions]
Estate = assets & liabilities deceased leaves behind (only assets devolve)
- Liabilities don’t devolve upon beneficiaries: assets used to pay off liabilities
- Remaining assets after liabilities settled = devolve upon beneficiaries
Testator = deceased leaving behind valid will
Executor = person charged with administration of deceased estate after death
- 2 ways executor appointed: 1). By testator in will OR 2). By Master of High
Court
1
, - Functions of executor: 1). Pay liabilities 2). Transfer remaining assets to
designated beneficiaries
- Acts under supervision of Master
- Entitled to 3.5% gross value of estate as fee
Freedom of testation = freedom to dispose of assets with discretion
- Enshrined in s10 & s25 of Constitution
- Not absolute: common law & statutory limitations
(s 25 guarantees institution of succession AND freedom of testation unless contrary
to public policy)
Beneficiary = persons to whom assets of deceased transferred to
testate/intestate succession
Heir = beneficiary who inherits testator’s entire/ portion of estate (benefit =
inheritance)
- Intestate beneficiaries = heirs, because must determine scope of benefit
Legatee = person who receives specific asset in terms of testator’s will (benefit =
legacy)
Importance of distinction between legatees & heirs?
= legatee in stronger position > heir when executor has to sell assets to pay
liabilities
o Distinguishing between testate succession & intestate succession
[testate succession]
= will
= legal rules regulating devolution of deceased’s estate on certain beneficiaries in
terms of wishes of deceased
[intestate succession]
2 cases
=no will = will does not dispose of all assets
= legal rules that determine who deceased’s beneficiaries are in as much as person
did not do themselves in will
2
,Main purpose of succession:
1. Economic function = regulates transfer of wealth
Common law succession
2. Social function = preservation of family unit (affected by social trends:
definition of family changes as society changes)
Customary law – heir steps into shoes of deceased + acquires all their
rights, obligations
2. Law of succession in legal system:
= material rules of law of succession (both common law + customary law rules)
operate in private sphere
[Prescribe]
- What becomes of person’s estate after death
- Who beneficiaries are
- What beneficiaries will inherit
- Rights & duties persons have in deceased’s estate
3. Dual character of law of succession
Colonialism = had significant impact on development of law of succession
no recognition of customary law territories regulated application of
(Under Dutch & British customary law by means of own laws
occupation) 1806
BUT Customs & usages could not
be repugnant to principles of
public policy & natural justice
(policy of non-interference
3
, 1927 = colonial laws consolidated in Black Administration Act (BAA)
Modern SA law = [mixed] [pluralistic] legal system
- Why? It is mixture of
1. Customary law
2. Roman-Dutch law & English common law
SA law of succession has 2 branches:
Testate succession Intestate succession
Apply common law of succession Apply Intestate Succession Act
as decided in Bhe case below
(unless customary law of
succession stipulated in will
Mixed system
Mixed & pluralistic system
Why? Influenced by Roman-
Why? Influenced by common law of
Dutch law & English law
succession & African customary law
4. Choice of law rules
Problem of conflicting rights & obligations:
= caused by duality of SA legal system (common law + customary law)
= courts apply choice of law rules to determine which law applicable
= choice of law rules derived from 1) judicial precedent or 2) statute
o Past = statutory choice of law rules determined law of succession applicable
to persons
4
Chapter 1: Introduction
1. Background to law of succession
Deceased estate person dies leaving behind estate to be distributed
amongst heirs
Functions of rules of law of succession:
1. Determine how estate divided
2. Identify
Persons entitled to inherit
(beneficiaries)
Extent of benefits
(inheritances/legacies)
3. Determines rights & duties that persons may have deceased’s estate
Succession takes place in 3 ways:
A. Testate succession = valid will
B. Intestate succession = absence of will
C. Contract/agreement
- (general rule = cannot enter into will via contract)
[Definitions]
Estate = assets & liabilities deceased leaves behind (only assets devolve)
- Liabilities don’t devolve upon beneficiaries: assets used to pay off liabilities
- Remaining assets after liabilities settled = devolve upon beneficiaries
Testator = deceased leaving behind valid will
Executor = person charged with administration of deceased estate after death
- 2 ways executor appointed: 1). By testator in will OR 2). By Master of High
Court
1
, - Functions of executor: 1). Pay liabilities 2). Transfer remaining assets to
designated beneficiaries
- Acts under supervision of Master
- Entitled to 3.5% gross value of estate as fee
Freedom of testation = freedom to dispose of assets with discretion
- Enshrined in s10 & s25 of Constitution
- Not absolute: common law & statutory limitations
(s 25 guarantees institution of succession AND freedom of testation unless contrary
to public policy)
Beneficiary = persons to whom assets of deceased transferred to
testate/intestate succession
Heir = beneficiary who inherits testator’s entire/ portion of estate (benefit =
inheritance)
- Intestate beneficiaries = heirs, because must determine scope of benefit
Legatee = person who receives specific asset in terms of testator’s will (benefit =
legacy)
Importance of distinction between legatees & heirs?
= legatee in stronger position > heir when executor has to sell assets to pay
liabilities
o Distinguishing between testate succession & intestate succession
[testate succession]
= will
= legal rules regulating devolution of deceased’s estate on certain beneficiaries in
terms of wishes of deceased
[intestate succession]
2 cases
=no will = will does not dispose of all assets
= legal rules that determine who deceased’s beneficiaries are in as much as person
did not do themselves in will
2
,Main purpose of succession:
1. Economic function = regulates transfer of wealth
Common law succession
2. Social function = preservation of family unit (affected by social trends:
definition of family changes as society changes)
Customary law – heir steps into shoes of deceased + acquires all their
rights, obligations
2. Law of succession in legal system:
= material rules of law of succession (both common law + customary law rules)
operate in private sphere
[Prescribe]
- What becomes of person’s estate after death
- Who beneficiaries are
- What beneficiaries will inherit
- Rights & duties persons have in deceased’s estate
3. Dual character of law of succession
Colonialism = had significant impact on development of law of succession
no recognition of customary law territories regulated application of
(Under Dutch & British customary law by means of own laws
occupation) 1806
BUT Customs & usages could not
be repugnant to principles of
public policy & natural justice
(policy of non-interference
3
, 1927 = colonial laws consolidated in Black Administration Act (BAA)
Modern SA law = [mixed] [pluralistic] legal system
- Why? It is mixture of
1. Customary law
2. Roman-Dutch law & English common law
SA law of succession has 2 branches:
Testate succession Intestate succession
Apply common law of succession Apply Intestate Succession Act
as decided in Bhe case below
(unless customary law of
succession stipulated in will
Mixed system
Mixed & pluralistic system
Why? Influenced by Roman-
Why? Influenced by common law of
Dutch law & English law
succession & African customary law
4. Choice of law rules
Problem of conflicting rights & obligations:
= caused by duality of SA legal system (common law + customary law)
= courts apply choice of law rules to determine which law applicable
= choice of law rules derived from 1) judicial precedent or 2) statute
o Past = statutory choice of law rules determined law of succession applicable
to persons
4
