20 Lsl0el28
General
tr
tr
D
Study Unit 9
No Will
Will but invalid
Valid Will but
E certain assets have
not been dealt with
lntestate Succession
Certain provisions
cannot be executed
Repudiation and not
provision for
bstitution
su
Vesting of Rights
Definitions
.lntestate Succession
El
tr
ofthe testator (delotiol
Delotio is the time at which intestate heirs are
determined
At the death
Examples
of
incompetent heirs
lmplications of
adoption and
illegitimacy
BUT!
D
O
Valid will which later becomes inoperative
Harris v Estate Maccre8or
lnterstate heirs are determined when Will
becomes inoperative
Blood Relatioi
D Ascendants
O Descendants
tr
Collaterals
tr
tr
Full blood
Half blood
Definitions
E
D
fl
Parentorparentgroup
and his/her
descenda nts
Persons in 1't parental
will always inherit first
Rule
1-
lf there are no heirs in
Stirpes
1't and 2'd parental
(Rule 1 - 7)
tr A child ofthe deceased
E Predeceased or
unworthy or unwilling
child survived by
descenda nts
the 1n parental, then
look in the
2nd
parental
Rule4-7
stu4un(e ncr,r.tu@s'on
20Ls/09/28
Definitions
Definitions
E
Representation (per
stirpes distribution)
incompetent
Repudiation
3'd
parental
Rule 8
When there are no heirs in
the 1sr or 2nd parental
Ascendants or descendants: count from the testator (without
including him) to the ascendants (up) or descendants (down)
collaterals: count from the testator (without including him)
through the common ancestor to the relation
Definitions
Succession per Capita
E
E
Rule 8
Persons closest in
Definitions
+** NB NB NB Child,s
Share ***
E
E
degree of relationship
Rule 3
lf spouse and children
in
to testator inherits
To the exclusion of
further relations
herit
Spouse is entitled to
child's share or
R 250 000 whichever is
greater
Calcu
lation:
Child's share = monetarv value of estate
number of stiroes Dlus
Definitions
Direct [ine or Collateral
Direct Line: Ascendants
or descendants
"Spouse"
Collateral Line:
lnitia I ly:
[ine
Collatera ls
.
.
t- R,r"Gi,h t
But now:
Narrowinterpretation
Survivor of a lawful marriage
between one "husband" and
one "wife"
Constitution
.
.
Equality
Non discrimination
Wider interpretation
-'
2O1s/Os/28
Defin itions
tr
Rule 1 or Rule 3
lncludes survivor in:
monogamous Muslim
marflage
Definitions
Fnrr"f;'n+r_
"Spouse"
lncludes survivor in:
Daniels v Compbell
Permanent relationship with
person of same gender
(monogomous)
Hossom v Jocobs (polyqamous)
Govender v Rogovayoh
F rv*,"s"r" d;h;;'hdl
w
.
.
Some
g!opposite gendet
Civil Union Act
(monogomous)
.
.
But Not:
Bhe v Mogistrcte,
Persons of opposite gender
Khoyelitsho
Recognition of Customory
who lived together
. i e permanent life partners
volks v Robinson
Domestic Pottnerchip U!
+++Poixdo v Rood Accident
Fund *++ "Spouse" but RAF
Mottioges Act
Which of the following are NOT "spouses" for
purposes of the lntestate Succession
Unmarried lesbian couple in
permanent relationship
Unmarried homosexua I couple
in permanent relationship
Couple in customary marriage
Unmarried heterosexual couple
Married couple (both male)
Married couple (both femdle)
Married couple (male and
female)
Which of the following persons are NOT "spouses" for
purposes of the lntestate Succession
A. A man's wife
B. A man's wives
C. A woman's husband
D. A woman's
h
usba nds
E. A woman's wife
F. A man's husband
Rules of the tntestate
1st
Parental
2nd
Parental
t;;;;l
3'd Parental
F"h1-----l F,ht----_-] F,bt---l
20Ls/os/28
Rules of the lntestate Succession
Rule l-: Section 1(1Xa)
Spouse receives entire estate, lgL remember to apply
matrimonial property system t
Rrl"
Descendants
Rule 2
Spouse and Descendants
]
Rule l-: Section 1(1Xa)
Tomi
were
Charl
1(1Xa)
pertytoAnna. Twochildren,
y Ben and Charles. Ben and
ve no descendants. Tom's
fathet Danny, is predeceased, but his mother Emma is still alive
Rule 2: Section 1(1Xb)
Tom is married out of communityof propertytoAnna. The
accrual system applies to the marriage Two children were born
from the marriage namely Ben and Charles. Ben and Charles
passed away in 2012 and have no descendants. Tom's father,
Danny, is predeceased, but his mother Emma is still alive. Tom
dies intestate on 15 August 2015. DistributeTom's estate worth
R 10 000 000 ifAnna has an accrual claim of R 200 000
Rule 2: Section
1(1Xb)
Descendants, no spouse
Descendants inh"rit
p",,tirp",.nd
by
*p**ntrti-
no"llJrJi-rr"si;;;i;.h'h;;;;';-d""'"0
descendants
'
L____________
o"
lli.l-
-l
- - - - -i
Tom was married out of communityof propertyto Anna. Anna
is predeceased, Three children were born from the marriage
namely Ben, Charles and Diana Tom has a child from a previous
marriage namely Emily Ben is predeceased, but is survived by
his children Binnyand Bunny. Charles killedTom and has no
descendants. Diana has two children Dinny and Danny. Diana
repudiated her claim. Both Tom's parents, Fiona and Gerrv, are
still alive. Tom dies intestate on 15 August 2015. Distribute
tom's estate worth R 9 000 000
20rs/os/28
Rule 3: Section
Lrur r rI
1(1Xc)
r/[L/
Rule 3: Section
1(1)(c)
i
(!)Apply matrimonial property
law
@Remember repudiation exception
:;ilt;;;;;;
i.i.
R;-o-ooo.
rance per stirpes and
- - - -si&narrriG-i6,ir;
------i
by
propertyto Anna Three
children were born from the marriage namely Ben, Charles and
Diana, Tom has a child from a previous marria8e namely Emily.
Ben is predeceased, but is survived by his children Binny and
Bunny Charles killed Tom and has no descendants. Diana has
two children Dinny and Danny. Diana is predeceased Both
Tom's parents, Fiona and Gerry, are still alive Tom dies intestate
on 15 August 2015 Distribute Tom's estate worth R 12 000 000
if Anna has an accrual claim of R 4 000 000
Tom is married out of communityof
- - - - - - - - - - - - - - -,1
Rules of the lntestate Succession
Rule 3: Section 1(1Xc)
2nd Parental
for lt *"0
of prop"rty to Anna Thre
children were born from the marriage namely Ben, Charles and
Diana, Tom has a child from a previous marriage namely Emily.
Ben is predeceased, but is survived by his children Binny and
Bunny Charles killed Tom and has no descendants. Diana has
two children Dinny and Danny Diana repudiated her benefit
Both Tom's parents, Fiona and Gerry, are still alive Tom dies
intestate on 15 August 2015. Distribute Tom's estate worth R 1.2
000 000 if Anna has an accrual claim of R 4 000 000
ort
of
-*uniiy
Rule 4
-l
Both parents
One parent and one predeceased parent
Rule 5
with descendants
Rule 6
_ l on" parent
and one predeceased parent
with no descendants
Rule 7
Rule 4: Section 1(1XdXi)
No parents, parents have descendants
Rule 5: Section
1(lxdXii)
No spouse, no descendants One survivinB parent, predeceased
parent has descendants
.
.
Surviving parent inherits % of the estate
Other % of the estate devolves upon the descendants of the
predeceased parent per stirpes and by representation
20Ls/09/28
Rule 6: Section 1(l)(dXii) proviso
Rule 7: Section 1(1)(e)
No spouse, no descendants. One surviving parent, predeceased
parent has no descendants
No spouse, no descendants, no parents. Parents have
descendants
Surviving parent inherits entire estate
section 1(1)(exi)
.
.
.
__l
Option A Only half-blood collaterals on both sides
Option B Only full blood collaterals
Option C Half-blood and full-blood collaterals
section 1(lXeXii)
Option D Only half-blood collaterals on one side
Rule 7 A: Section 1(1)(eXiXaa)
Rule 7 A: Section 1(1)(e)(i)(aa)
No spouse, no descendants, no parents Parents have
descendants
Section 1(lXeXiXaa)
. Option A Only half-blood collaterals on both sides
O Descendants on mother's side inherit %
O Descendants on father's side inherit %
O Per stirpes and through representation
Rule 7 B: Section r(lXeXiXbb)
No spouse, no descendants, no parents Parents have
descendants
section 1(1)(eXiXbb)
Option
Estate is divided in
Descendants inherit trough both parents
Per stirpes and through representation
Only full blood collaterals
two
No spouse, no descendants, no parents. Parents have
descendants
i;;;j;i;;n;;t"h";;;;;;;j;;;J;rd;;-are
descendants. Both Tom's parents, Lea and Mark
predeceased Lea has a son Nico from a previous marriage. Nico
i is predeceased, but survived by his three children Nicky, Nocky
i and trtacky Mark has two children from a previous marriage
I namely Olivia and Peter Tom dies intestate on 15 August 2015
I Distribut" Tor', estate worth R6 000 OO0
Rule 7 B: Section 1(lXeXiXbb)
No spouse, no descendants, no parents Parents have
descendants
i
i
207s/09/28
Rule 7 C: Section 1(lXeXiXcc)
Rule 7 C: Section 1(1)(eXiXcc)
No spouse, no descendants, no parents, Parents have
descendants
No spouse, no descendants, no parents Parents have
descendants
Tom has 2 brothersr Abel, Ben. Both Tom's parents, Lea and
Mark are predeceased Lea has a daughter Carmen from a
i previous marriage Mark has two sons from a previous marriage
I namely Dan and Fiona, Fiona is predeceased, but is survived by
Section 1(1Xe)(i)(cc)
. Option C Half-blood and full-blood collaterals
tr Full-blood collaterals inherit with the full hand
E Half-Blood collaterals inherit with half hand
O Per stirpes and through representation
ihertwochildrenGeraldandHilda
Tomdiesintestateon15
it!c-"-'l ?91s ?i-'tilb-"J: I"-Ti-":t-"1"-
Rule 7 D: Section 1(lXeXii)
Section 1(1)(e)(ii)
. Option D Only half-blood collaterals on one side
D lnherit entire estate per stirpes and through representation
r;
-B"th1;;;;p-;;;,
l"-.-.
M;,;; - -
^d
i predeceased When Lea and Mark passed away, Tom lived
I
i
y-"ltl-14-s-qqo-qo- i
Rules of the lntestate Succession
No spouse, no descendants, no parents Parents have
descendants
x;; ;;; ;;t;r
with
his maternal grandparents, Vernon and Zelda, who are both still
I alive. Mark has two children from a previous marriage namely
I Simon and Stuart Stuart is predeceased, but is survived by his
i two children Winona and Ursula Tom dies intestate on 15
I
oti,"r
r"r.tr"t
j
I
i
i
i
i
|t,-q,-'t ?9t-t -?':tj'!-, j"-I1T : -":ti!"- y9'J!-14-oo-o-qo-o- i
Rules: Summary
Rule 8: Section 1(1Xf)
No spouse, no descendants, no parents Parents have no
descendants
2,
section 1(1}(f)
E
E
Per capita
Persons closest in degree of relationship inherit equally to the
exclusion of others
Itom isthe only child Both
I
Tom's parents, Lea and Mark are
predeceased When Lea and Mark passed away, Tom lived with
his maternal grandparents, Vernon and Zelda Zelda is
i predeceased. Both Tom's paternal grandparents, Abel and
I Belinda, are still alive Lea has a brother, Charl, who is still alive
Itom dies intestate on 15August2015 DistributeTom'sestate
I
worth
where the spouse is the beneficiary (Rule 1 and Rule 3) first
apply the matrimonial property law
Adopted and illegitimate children are deemed legal
descendants
lf Rule 3 applies and a descendant repudiates, his benefit
accrues to the surviving spouse
Representation takes place when an heir is predeceased,
incompetent or repudiates++(Except Rule 3)
lfthere are no competent heirs, amount paid into Guardians
Fund for 30 years, whereafter forfeited to State
R5 OOO OOO
2ors/oe/28
Customary Law
Customary Law
Reform of Customary Law of Succession Act
Reform of Customary Law oiSuccession Act
ncLsn
---l
.
.
tf p"rron tiu;i rnJ", r rytt"rn ot
"
customary law
Dies without a valid Will
lntestate Succession Act + RCLSA
Descendant
Section
--
-.
i--r;t"'Ll;i;;;'i;;A;l-----------iplus
;' ^
'.
i
I
the
deceased as his/her own child in
accordance with customary law
"woman" in terms of section 2(2)(b) or (c)
Person wno was accepted by
i
i
rOr
|
Customary Law
Customary Law
Reform of Customary Law of Succession Act
-l
t'p,t"'
---with deceased for purpose of providing children
I
I to deceased's spouse's house
- section 2(2)(b)
t
= descendant of deceased
-----l
section5-
@ wom"n
MJ;,-"rH,;;.;;h;;r,;;;ii""----i
or
n"f"rr"dtoMatistrate
ilL----------__
Traditional
woman marriage
I lf deceased was woman married to woman
under customary law for purpose of providing
I
children for deceased's house - section 2(2)(c)
I
r
= descendant of deceased
|
i:I
Leaders
i
i
Section 6
i.
i
official capacity
ership and Governance
i.L-
state
ito
i
i
Customary Law
Customary
Monogamous households
'V
rOfnl
I
f. erin.,pl"otr"m
2. Same as intestate succession, glrI
. Age (eldest)
. Gender (male)
----r
1
Customary Law
1
2.
3.
4.
5.
Principle of male primongeniture
Petrus (eldest son) will inherit
lf Petrus is predeceased (with male descendants), his male descendants
in order of birth
lf Petrus is predeceased (without male descendants), Jonna will inherit
lfJonna is predeceased (with male descendants, his male descendants
will inherit
6
7
8.
9
10
11.
No male descendants, Thabo's father will inherit
lf nofatherormale descendants-Thabo'seldest brothet orhis male
descendants
lf eldest brcther is predeceased with no male descendants -Thabo's
other brcthe6 in order or birih
No male descendants, fatheror brother-Thabo'stEndfatherorone of
his male descendants
No male descendants, father, brother or gndfather-Thabo's paternal
greatEndf"ther, or his descendants
No male successoR-tEditional leader
Customary Law
2,
3,
The eldest son ofthe great house (left-hand wifu) in the male lineage i5
successor to fe!!l[tIl9!g!gand !!a$! of deceased
lf eldest son is predeceased - his eldest living son
Eldest son of each house, or if he is predeceased, his eldest living son,
in herits the igllCjlgpglB
lfthere is no son in the house who could inherit, property is tcnsfe.red
to eldest son of another house next in Enk
30/0s/20Ls
*
Adiation or Repudiation
E Executor: Did beneficiary accept benefit?
E Beneficiary always has a choice
Choice:
E Adiation = acceptance of benefit
EI Repudiation = renunciation of beneflt
l
choi."
L_=__=
"election"
a
Adiation or Repudiation
Adiation or Repudiation
Dies cedit (or within
reasonable time)
Election
How is choice (election) communicated?
Adiation
entire benefit
1
with obligations
o Assume adiation
unless repudiation
modus
o Writing: obligation
Election is final
o Writing: disposed of
Except if ignorant
beneficiary's assets
to rights
Adiation or Repudiation
Adiation or Repudiation
1.
Stipulations in will (direct substitution)
2,
Statutory accrual or representation 2C(11 & (2) or 1(51 & 17l
Other testate hei.s (common law accrual)
OR
3.
OR
4.
+'Joint assets (in communitY)
OR
3.
Disposes of beneficiary's assets
Modus
OR
Residue
suruivlng spouse adiates and is bound to Will
a ssi
nB
- !g!a!e!3lles!
Surulving spouse accepts benefit (but renounces own massed
30loelzots
Types of Wills
Types of Wills
**Regarded as multiple Wills
**own assets
''*
Types of Wills
Il:1=
o@@
(90'E
@o('
6oc
**Type of joint Will
*rown
assets
'"
"1: '_
"l bequeath my farm to my wife
"l bequeath my estate to
X, and she must
mY wife X"
give her car to my son Y"
Written adiation or
written repudiation
:.
is
.'
required
Written repudiation or
informal adiation
required
is
required
Written repudiation or
informal adiation is
required
is
required
Written adiation or
informal repudiation
Written adiation or
written repudiation
is
Written adiation or
informal repudiation
required
is
o% o%
o%
,-.:= F-1\
30loglz}rs
"We, Abel and Belinda, bequeath our respective
estates as follows: Abel's assets to his children
and Belinda's assets to her mother"
Joint Will
Single Will
Mutual Will
o%
o%
o%,
Massing of Estates
Massing of Estates
o Election by survivor
o Accepting a benefit
from first-dying
Disposing of
consolidated assets
Massed estate = disposal of own assets of testator +
assets of surviving testator
!
Massing of Estates
Massing of Estates
their estates
and stipulate that the
family home will go to the
X and Y mass
survivor and the residue
to the children in equal
shares
suruivor adiates
unlimited right in house (i.e. may dispose etc)
No rights in residue (loses ownership in assets
included in residue)
Election (choice) to adiate or repudiate
.
.
30/09/20rs
Massing of Estates
Massing of Estates
their estates
and stipulate that the
family home will go to the
X and Y mass
T and W mass their assets and determine that at death of
the first dying the massed estate will pass to their son,
sub.iect to a lifelong usufruct in favour ofthe surviving
spouse
survivor and the residue
to the children in equal
s
hares
The suruivot upon adiation gives away ownership in
own estate
but retains limited interest of some kind in massed
estate
a Limited interest = usufructory
Massing of Estates
Massing of Estates
their estates and determine that massed
assets will go to the suruivor at the death of the first dying,
and at the death ofthe surviving spouse, to their children in
equal parts
T and W mass
"We hereby stipulate that our respective estates be massed
into one consolidated unit upon the death of the first dying
of us. The massed estate must devolve in trust to our trustee
Mr X. The suruivor will be the income beneficiary. Capital
beneficiaries are our children in equal shares..."
a The survivoq upon adiation gives away ownership in
own estate
,
,
but retains limited interest of some kind in
estate
massed
I
I
Limited interest =
fiduciary
The survivor, upon adiation gives away ownership in
own estate
but retains limited interest of some kind in massed
estate
Limited interest = income beneficiary
Massing of Estates
Massing of Estates
Effect of Adiation
Suruivor may NOT
amend or revoke
Rhode v Stubbs
,
,
Survivor may NOT
execute will in conflict
with mutualwill
Beneficiaries can claim
benefits upon death'of
1't dying (Joubert v
Ruddock)
Facts:
a Suruivor may NOT
receive any beneflt from
mutualwill
massed estate
a Survivor retains own
estate and mav disoose
l,
| ,
,
Attie and Lettie married in community of propertv
occupied property wlth 2 houses: 'bld" house and "new" house
Mutual Will: upon death of 1n dying, property must be subdivided,
One portion must have old house and one portion must have new
old house bequeathed to couple's ton Archie; new house to Ethyl
(Attie's daughterfrom previous marrlage), Usufructln favourof
house
ofit
Mutual Will only relates
surulvor
Attie is the 1n dylng
30loelzoLs
Massing of Estates
,
,
The erecutor of Attle'' esbte, awarded tlE
, old houie:Xundivldld 3h!reto Letl..ndN
, New hour.: X undild.d 3h.t to t.tl and X
Later: Lcttie dBfted will ln whlch she bequeathed
in new house to her son charles siubbs (from
x undivided shares in old house to Archie
, Lenie died 1969
, q!!Ir Pniel Municipality
gives sole riEht of
Later: Ethvl subdivides new house (A and B) and
X undividPd share5
marriage) and her
