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Lecture notes PVL2602 - Law Of Succession (PVL2602)
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Lecture notes PVL2602 - Law Of Succession (PVL2602)
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Succession (LAWS2004)Liz Picarra – LB51 – Elizabeth.picarra@wits.ac.za - times: thurs 11h00-13h00.
Succession:
- This aspect of law deals with what happens to an estate (the assets you leave behind) after you pass
away.
- Estate = the assets, obligations, liabilities, debts, etc. that you leave behind.
- Inheritance = what is left once all the debts and liabilities have been paid.
- Succession determines who qualifies to inherit.
There are 2 types of succession:
- 1) Testate = dealing with wills.
- 2) Intestate = dealing with no wills.
Terminology:
- Deceased = person who has died.
- Testator = a.k.a. de cuius, the person who dies and leaves behind a will (i.e. dealing with testate
succession).
- Estate = what is left once liabilities are subtracted from assets (assets – liabilities). These are then subject
to distribution.
- Administrator/executor = person who deals with administration of the estate.
- Administration of estate = the process whereby the debts of the deceased estate are paid and the assets
are transferred to the designated beneficiaries after the testator’s death.
o This is governed by the Administration of Estates Act 66 of 1965.
- Beneficiaries = people who will benefit from a will.
- Intestate succession = if there is no will or no ante-nuptial contract (ANC) containing inheritance provisions,
OR there is a will but it is incomplete or inoperable.
o This is governed by the Intestate Succession Act 81 of 1987.
o This helps you to identify who the heirs will be insofar as the deceased person failed to do so.
- Law of testate succession = if there is a will.
o This is comprised of various norms which regulate inheritance in terms of the wishes of the testator
as expressed in his will.
What is a will?
- The instructions left behind by a deceased person instructing an executor on how to administer the estate.
- It is a unilateral declaration of the wishes of the testator.
- It sets out the way in which the assets must be apportioned after the death of the testator, and it sets out
the designated persons or institutions to whom his assets will be apportioned.
What is a beneficiary?
- The person/s who benefit/inherit from a deceased estate.
- There are 2 categories of beneficiaries:
o 1) Heir:
An heir inherits in 4 possible ways:
(a) He/she inherits the entire estate.
(b) He/she inherits a proportional part of the estate (e.g. if there is more than one
heir).
(c) He/she inherits a particular part of the estate.
(d) He/she inherits the residue of the estate.
An heir can inherit in terms of a will, an ANC or intestate.
In Roman Law there was a ‘universal heir”. You would “step into the shoes of the
deceased person” and inherit the estate as well as their assets and liabilities.
There is no “universal heir” in SA – one can only inherit the assets (hence an executor who
takes care of the obligations).
The executor is appointed by the will (i.e. the testator) or the master of the court –
he/she does not need to be related to the deceased.
The executor gets paid a percentage of the deceased estate (this percentage is
set out in the Administration of Estates Act).
o 2) Legatee:
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, A legatee inherits a legacy – e.g. a specific asset or a specific amount of money.
He/she can only be a testate successor, since you need a will to specify the asset/amount
of money to hand out.
There is also a pre-legacy:
This is a special bequest which has preference over all other bequests in terms of
the testamentary instructions (provisions in a will).
BUT if the liabilities are more than the assets, then the pre-legacy is ignored since
it needs to help pay the liabilities. However, the pre-legacy is the last asset/amount
of money to go when paying liabilities off.
o E.g. you owe R50000 but only have R20000. A pre-legacy of a car must
then be sold after all other assets have been used up in order to cover the
liabilities. The legatee will then only get the residue of the amount.
What a testator can bequeath:
- His/her own assets.
- An asset that belongs to a third party, ONLY if the testator is aware that the asset belongs to someone
else.
o The executor then has the duty to take funds from the deceased estate and attempt to buy the
asset from the third party.
o If the third party won’t sell, then the executor must give the value of that asset to the beneficiary.
o If the testator gives an asset belonging to a third party believing that it belongs to him/her, then the
bequest is null and void.
- Assets in which he/she has joint ownership (but can only bequeath his own portion).
Difference between heirs and legatee’s:
- Heirs can be either testate or intestate. Legatee’s can only be testate.
- Legatee’s are in a stronger position than heirs.
o Legatee’s get paid first (after liabilities). Heirs only get paid after that.
- Heirs are obliged to collate while at common law legatee’s are not (see Testate Succession later).
- There is a slight difference between heirs and legatee’s as far as accrual is concerned (see Testate
Succession later).
Adiation and Repudiation:
- Beneficiaries have a choice whether to accept (adiate) or refuse (repudiate) a bequest – this is called their
election.
- No person can be forced to adiate a benefit.
- Sometimes bequests come with certain obligations or encumbrances attached (hence repudiation).
- One can also elect to inherit in terms of a will instead of an ANC (repudiate one of them).
- A person who adiates to a will can then not turn around and attack the validity of the other provision in the
will.
- Adiation is normally presumed by the executor, therefore repudiation must be expressly stated.
- In cases where a bequest has an encumbrance attached, written adiation is required.
Effect of adiation:
- The beneficiary acquires a vested personal right against the executor – the executor must transfer the
asset to the beneficiary once all liabilities have been paid.
Effect of repudiation:
- This is dependant on the provisions of the will and those particular circumstances.
- The will itself can provide for potential repudiation by substitution.
- The estate could devolve intestate if there are no provisions in the will.
- There is statutory accrual/representation (we’ll deal with this later).
- It could accrue to other testate heirs.
- It could fall into the residue of the estate.
The election to adiate or repudiate is final!
- Unless you can prove in a court that you made your choice in “excusable ignorance” of your rights (i.e. you
really were unaware).
19/02/09
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, Contents of wills and freedom of testation
SA law places a high value on freedom of testation.
- The freedom of testation is the right to dispose of your assets as you see fit after you pass away.
- This is, however, limited to a certain degree – there are common law and statutory limitations.
Common law limitations:
- If a provision is unlawful then no effect will be given to it (e.g. you will only inherit if you kill someone –
illegal!).
- If a provision is contra bones mores (morals of the community – e.g. you only inherit if you get a divorce).
- If a provision is impractical, impossible or vague.
Statutory limitations:
- Immovable Property…Act 94 of 1965 – if a testator places restrictions in his will regarding immovable
property, the court can alter/amend those provisions in terms of the Act.
- Subdivision of Agricultural Land Act 70 of 1970 – in terms of this Act, agricultural land cannot be
subdivided in terms of a will (this is to protect the agricultural viability of the land – if it is too subdivided
then it cannot produce properly).
- Trust Property Control Act 57 of 1988 – allows the courts to amend/alter the provisions of a trust, or
even to terminate the trust.
- Maintenance of Surviving Spouses Act 27 of 1990 – in terms of this Act a surviving spouse may make a
claim for maintenance from a deceased estate.
It may be possible that the Constitution also has an effect on freedom of testation.
- E.g. Gender discrimination – leaving estate to male heirs only.
- You may claim invalidity in terms of the Consitution, but it may not work. It has been argued that the
freedom of testation trumps the Constitution.
- You could also claim that it is contra bones mores, which the Constitution reflects.
Although freedom of testation is otherwise paramount, certain things have become common in a will:
- Legatee and inheritance.
- Conditions and dies.
- Modus/modal clause.
- Direct and fideicommissary substitution.
- Usufructs, trusts and foundations.
With freedom of testation comes the freedom of revocation.
- This operates until the death of the testator.
- No one can be forced to revoke a will.
- You can revoke an entire will, part of a will or only phrases of it.
Leal nature of a deceased estate
Upon death, the estate is placed in the hands of the executor who puts the will into effect. But to whom does the
estate belong to during this time?
- Greenberg v Estate Greenberg 1955 (3) SA 361 (A).
o In this case 2 issues were considered:
1) An heir does not become the owner immediately – the administration process must still
go through. So does the executor become the owner during the process?
2) whether the deceased estate was itself an independent, juristic entity belonging to itself.
o The court could not come to a conclusion. They merely stated that certain proprietary rights in the
deceased estate are vested in the executor in his capacity as a representative of the deceased
estate (but he only has those rights while he is the executor – if there is a change then the rights
go to the new executor).
Vesting/enforcing of rights:
- A beneficiaries rights/claims arises when a deceased estate falls open (death of testator).
o This vesting of the right is called dies cedit.
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