PVL2602 LATEST
SUMMARIES.
Unit 1 (Introduction to Law of Succession)
After studying this unit you should have a very good understanding of:
Difference between/and relationship between customary law and
common law;
Succession Terminology and definitions;
That Succession may take p...
,Unit 1 (Introduction to Law of Succession)
After studying this unit you should have a very good understanding of:
Difference between/and relationship between customary law and
common law;
Succession Terminology and definitions;
That Succession may take place according to a will (testate
succession), according the operation of the law of intestate
succession or in terms of a contract (pactum successorium);
What are the ground rules as to when a person may inherit?
Brief Summary:
Law of succession – comprises those legal rules or norms which
regulate the devolution of a deceased person’s estate upon one or
more persons. Thus the law of succession is concerned with what
happens to a deceased person’s estate after his death.
Deceased – is the person who has died and left behind an estate
Estate – a testator’s estate consist of both the assets and the
liabilities he had at the time of his death. The estate therefore
consists not only of assets but also of any debts that the deceased
had incurred during his lifetime
Legatee – inherits a specific asset (legacy)
Residue of estate – refers to that part of the deceased’s estate
which remains after the payment of funeral expenses, administration
costs, tax, the deceased’s debts and the legacies
Repudiation – heir or legatee may refuse to accept a benefit from a
deceased estate
Adiation – heir or legatee accepts benefits from a deceased estate.
Succession – may take place in one of 3 ways:
1. Testamentary succession - in accordance with a will which the testator
regulates the succession.
2. Intestate succession – through the operation of the law of intestate
succession, where the deceased did not leave a will – estate is intestate
and is governed by the laws of intestate succession.
3. Pactum successorium – in terms of a contract or agreement
– contractual succession -anc is the only contract in which a person may
regulate succession to the assets in his or her estate.
Death of Deceased:
Moment of death – succession can only take place if person is
deceased.
, Presumption of death – onus is on person who asserts person is
dead to furnish proof of same.
Persons who die in the same disaster – a beneficiary can inherit
only if he/she survives the deceased. When people die in the same
disaster and it is not possible to determine who died first, the court
will find that they died simultaneously. EX PARTE GRAHAM
Wills, Unilateral and Multilateral Juristic Acts and Donations:
Juristic act – is an act which is intended to create or alter rights and/
or obligations and it is an act to which the law attaches at least some
of the consequences envisaged by the acting party or parties.
Unilateral juristic act – for example making of a will is performed by
the activity of only one person. It is only one person’s actions that
establish a will and it is only this person’s intention that is contained in
the will.
Multilateral juristic act – such as the conclusion of a contract, it is a
juristic act which is performed only through the cooperation of 2 or
more persons – example donation.
Bhe v Magistrate, Khayelitsha and Shibi v Sithole
The Bhe judgment concerned three related cases (Bhe, SAHRC and Shibi),
which were decided together. In the first action, the father of applicants,
Nonkuleleko and Anelisa Bhe (aged 9 and 2), had died, and the mother
(the third applicant) brought an action to secure the deceased's property for
her daughters. Under the African customary law rule of primogeniture as
well as section 23 of the Black Administration Act, the house became the
property of the eldest male relative of the father, in this case the
grandfather. The South African Human Rights Commission (SAHRC) and
the Women's Legal Centre Trust brought the action in the public interest
and as a class action on behalf of all women and children in a similar
situation. In Shibi, a sister was denied the right to inherit from her brother's
intestate deceased estate under African Customary Law. In all three cases,
the Constitutional Court declared the African customary law rule of
primogeniture unconstitutional and struck down the entire legislative
framework regulating intestate deceased estates of black South Africans.
According to the Court, section 23 of the Act was anachronistic since it
ossified official' customary law and grossly violated the rights of black
African persons relative to white persons. With regard to the customary law
rule of male primogeniture, the Court held that it discriminates unfairly
against women and illegitimate children on the grounds of race, gender and
birth.
, The result of the order was that all deceased estates are to be governed,
until further legislation, by the Intestate Succession Act 81 of 1987,
whereby widows and children can benefit regardless of their gender or
legitimacy. The Court also made orders for the division of deceased estates
in circumstances where the deceased person was in a polygamous
marriage and was survived by more than one spouse.
Ex parte Graham 1963
A beneficiary can inherit only if he/she survives the deceased. When
people die in the same disaster and it is not possible to determine who died
first, the court will find that they died simultaneously.
Unit 2 (Intestate Succession)
After studying this unit you should have a very good understanding of:
That the law of intestate succession is regulated by the Intestate
Succession Act 81 of 1987;
Especially Section 1(1) (c) of the Intestate Succession Act;
Understand the meaning of “Child Share” and its practical
applications;
Understanding of “vesting of an intestate inheritance “;
Understanding of “persons’ capacity to inherit intestate”;
Constitutional challenges to the intestate succession rules;
Disqualification and Repudiation (in particular Section 1(6) and 1(7) of
the Intestate Succession Act and Section 2C (1) and (2) of the Wills
Act;
Brief Summary:
Ascendants – ancestors of the deceased – mother, father,
grandparents. – straight downward line
Descendants – lineal descendant of the deceased – direct line below
deceased
Adopted children – deemed descendants of adoptive parents and not
of natural parents, except in the instance where the natural parent
was also the adoptive parent.
Extramarital children – illegitimacy does not affect the capacity of
blood relation to inherit from blood relation.
Collaterals – persons related to the deceased through at least one
common ancestor or ascendant – egg brother, sister cousins.
Full blood collaterals – related through both parents
Half-blood collaterals – related through one parent
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