Summary LAW OF SUCCESSION - Learning unit 2: The Law of Intestate Succession
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Course
(LASU7312)
Institution
University Of The Witwatersrand (wits)
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Law of succession
• Distinguish between various important concepts applicable to the law of succession;
• Know when the rules of intestate succession come into operation;
• Apply the appropriate section of the Intestate Succession Act to any one of the
possibilities that may arise in intestate succession.
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LAW OF SUCCESSION
Learning Unit 2 : The Law of Intestate Succession
Theme 1: Introduc0on to the Law of Succession
LO1: Explain when intestate succession will take place.
2.1 Introduc;on
A subdivision of law of succession is intestate succession
THE INTESTATE SUCCESSION ACT DETERMINES THE BENEFICIARIES OF A DECEASED WHO
DIED INTESTATE – WHO WILL INHERIT?
- Deceased le> no valid will
- Valid will does not make provision for certain assets
- Valid will is par0ally invalid
- Valid will but condi0ons are not fulfilled / benefits are repudiated and no alterna0ves
are provided for
Can be partly testate and partly intestate
- Nemo pro parte testatus pro parte intestatus decere potest does not apply in SA
Dies Cedit
- Dies intestate: at 0me of death
- Valid will becomes inopera0ve: at the the 0me the will becomes inopera0ve
Largely codified:
- Intestate Succession Act 81 of 1987 (as amended)
- Reform of Customary Law of Succession and Regula0on of Related MaNers Act 11 of
2009 (Reform Act)
Previously:
- Black Administra0on Act
Bhe v Magistrate, Khayelitsha
- No longer any difference between black, white or coloured persons who die intestate
1
,WHO CAN INHERIT?
- Beneficiaries = Heirs
- Heirs are determined at date of death = What are the excep0ons to this rule?
- Incompetent heir
Ø Not related to deceased
Ø Person who murdered the deceased
- Die bloedige hand neemt geen erf
- Poten0al heirs:
Ø Spouse
Ø blood rela0ons (depending on who is alive)
Ø Can be full-blood or half-blood
Children, Parents, Siblings, Grandparents, Aunts/Uncles,
Nephews/Nieces
Theme 2: Defini0on of important concepts
LO2: Define the following concepts: Ascendants; Descendants; Blood rela;ons; Collaterals;
Parentela;S;rpes; Per Capita; Representa;on per s;rpes; A child’s share; Degrees of
rela;onship; Spouse.
LO3: Apply the above concepts in a given scenario.
2.3 Defini;on of concepts
BLOOD RELATIONS
DESCENDANTS
- Descends the deceased directly
- Children, grandchildren, great-grandchildren
ANCESTORS/ASCENDANTS
- Those from whom the deceased descends
- Parents, grandparents
COLLATERALS
- Not descendants and not ancestors
- Brothers/sisters/nieces/nephews/uncles/aunts
2
, - Full-blood – has two ancestors in common
- Half-blood – one ancestor in common
PARENTAL / PARENTELA
- A par0cular parent or parent group and his/her descendants
- First parental – deceased and descendants
- Second parental – deceased’s parents and their descendants
- Third parental – deceased’s grandparents and their descendants
- Can go further up – fourth, fi>h etc.
- Persons in first parental will always inherit first
- Nobody in first parental (alive/competent) then second parental
STIRPS / STIRPES
- A child of the deceased, and/or
- A predeceased child who is survived by living descendants and
- Includes: adopted children & children born out of wedlock
- Predeceased child – only a s7rpes is survived by children
- Predeceased child = 1 s0rpes (irrespec0ve of amount of children)
- Intestate Succession Act – s7rpes only in first and second parental
REPRESENTATION
- Occurs in the case of per s7rpes inheritance
- A child of the deceased who is predeceased – will be represented by his/her own
children per s7rpes
- Only in first and second parental
- Includes adop0ve and illegi0mate children
- Also if the heir repudiates his/her inheritance (subject to sec0on 1(6))
DEGREE OF RELATIONSHIP
- The degree of rela0onship between two blood rela0ons (deceased and beneficiary) is
calculated by the number of genera0ons between them
- Don’t count the deceased
3
, - Ascendants & descendants – from deceased to par0cular person
- Collaterals – from deceased up to common ancestor and down to the collateral
- Adop0ve children/parents and children born out of wedlock – also included
SUCCESSION PER CAPITA
- A person inherits in terms of his/her degree of rela0onship to the deceased
- Only if there is no competent heirs in first and second parental
- No representa0on takes place
- Person who stands in closest degree of rela0on will inherit to the exclusion of further
rela0ons
CHILD
Adop0ve child:
- Inherits from adop0ve parents and their blood rela0ons (and vice versa)
- Does not inherit from natural parents and their blood rela0ons(and vice versa) unless
adop0ve parent is married to natural parent
Born out of wedlock
- Inherits from biological father and natural mother and their blood rela0ons
- No different from children born in wedlock
Reform Act
- Descendants also include persons who were accepted by the deceased during
his/her life0me in accordance with customary law as a child
- Child who “taken in” where customary law does not apply – not a child for purposes
of intestate succession
SPOUSE
- Intestate Succession has no defini0ons clause
- Previously spouse was narrowly interpreted = Survivor of a lawful marriage in terms
of the Marriage Act 25 of 1961
Ø One husband and one wife
- Cons0tu0onal era – new wider interpreta0on
4
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