- Information
- AI Chat
Summary - law of sucession 1
Law of Succession (LAWS4059)
Recommended for you
Related documents
Preview text
LAW OF SUCESSION – SUMMARY 2014 1ST SEMESTER
Introduction to law of succession:
When a person dies he or she leaves behind not family/friends but more importantly for our purposes rights and duties that have to be finalized. The law of succession deals with the finalization of the debt and assets the deceased leaves behind.
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. RE: BEAGLEHOLE 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
If the will consists of more than one page, the testator must sign at the end of the wording on the last page, and he must further sign or acknowledge his signature on the preceding pages in the presence of the same two or more witnesses, who are present at the same time. In Bosch v Nel the court held expressly that it is not necessary for the testator to sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature. The testator may sign the page preceding the last page anywhere on the page. The witnesses must sign the will in each others presence and in the presence of the testator. The Act does not prescribe where they must sign, but this provision is normally interpreted to mean that the witnesses must sign the last page of the will anywhere on that page. They need not sign the preceding pages.
2 No. A witness need not know the content of a will or even that he is witnessing a will. He only needs to know that he is witnessing the testator's signature (Sterban v Dixon).
3 The Wills Act requires that the witnesses should sign the will. The Act does not prescribe where they must sign. Usually this provision is interpreted to mean that they should sign the last page of the will. Normally the witnesses will sign the will at the end of the last page, but in Oosthuizen v die Weesheer it was held that the will was valid although the witnesses had signed at the top of the last page. The witnesses need not sign all the preceding pages of the will.
4 The testator has to sign at the ``end'' of the will Ð that is, at the end of the wording/ body of the will.
5 No. In Bosch v Nel the court held expressly that it is not necessary for the testator to sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature.
6 A witness to a will must comply with the following three requirements: 1 He or she must be 14 years or older. 2 He or she must be competent to give evidence in a court of law. 3 He or she must be able to write.
7 An attestation clause is a clause that appears at the end of the will in which it is declared that all the parties are present and have signed in each other's presence. When drafting a will, it is common practice to insert an attestation clause, in which it is expressly stated that the will was signed by the testator in the presence of the witnesses and that the witnesses signed in the presence of one another and the testator. No attestation clause is required by law. An attestation clause has evidential value only, that is, it can be of value only in that it constitutes evidence that the required formalities have been complied with.
CHAPTER 2 – INTESTATE SUCCESSION
Regulated by intestate succession act 81 of 1987. The law of intestate succession identifies the heirs to a deceased estate when the deceased has failed to regulate the devolution of his or her estate by will or anc or where it is impossible to carry out the wishes of the deceased because the beneficiaries are unable to inherit, do not wish to inherit or are predeceased. It is possible for a person to die completely intestate or only partly intestate.
Diagrams to represent lineage: page 11 double horizontal line = married persons horizontal level = same generation single line descending from parent = children/descendents dotted line = adoption letter crossed out = predeceased
Marriage out of cop – With accrual – principles of accrual will be applied to the intestate estate before it is divided. Amount of accrual is either deducted or added to the intestate estate before estate is divided
Partial intestacy – where deceased dies partly testate and partly intestate – the amount which a surviving spouse takes in terms of the will is ignored in calculating the intestate amount to which the surviving spouse is entitled
Person dies without leaving intestate heirs – a person may die intestate without leaving any person capable of inheriting from him ab intestate, executors now convert entire estate to money and pay proceeds into the guardian’s fund.
IMPORTANT – STUDY GUIDE PAGE 29 TO 34 Q&A
CHAPTER 3 – FORMS OF WILLS AND TESTAMENTARY FORMALITIES
Testate or testamentary succession occurs when succession is regulated by a valid will in which the testator pr ovides how succession to his estate is to take place.
EX PARTE DAVIES – courts decided Testamentary writing is a document which defines any one of the 3 essential elements of a bequest: 1. the property bequeathed 2. the extent of the interest bequeathed , ownership , usufruct ,fideicommissum etc 3. the beneficiary Both will and codicils are therefore testamentary writings.
FORMALITIES WHEN A TESTATOR SIGNS HIS WILL WITH HIS OWN SIGNATURE One page will – signature of testator at the end is required with 2 or more competent witnesses present at the same time. Witnessing is witnessing not the document or contents but that the testator signature. A witness may not sign by making a mark. More than one page – all pages to be signed by testator and 2 or more competent witnesses. Competent witness – is any person over the age of 14 whom is competent to give evidence in court. Must be able to “sign” must be 14 years or older, must be able to write and competent to give evidence in court. Attestation clause – is a clause that appears at the end of a will which is declared that all parties were present and signed will in each others presence. Only a testator can sign will by making a “mark” – thumbprint or cross
Formalities when testator makes a mark – commissioner of oath should be present 1. Certificate is to be attached when the testator sign with a mark of when another person signs on behalf of testator. 2. testator signing with a mark the will must comply with section 2(1)(a)(v) – commissioner of oath must append certificate to a will 3. Content of certificate – commissioner of oath certifies he has satisfied himself as to the identity of the testator, that the will so signed is the will of the testator. Certificate may be append anywhere to the will.
PAGES 50 TO 53 Q&A
The power of the court to order the master to accept a document as a valid will: The court can order the master to accept a will as being valid although it does not comply with all the formalities for the execution of a will, as long as the court is satisfied the document was drafted or executed by a person who has died in the meantime and intended the document to his or her will.
Section 2A: If a court is satisfied that a testator has – made a written indication on his will or before his death caused such indicating to be made performed any other act with regard it his will or before his death caused such act to be performed which is apparent from the face of the will or Drafted another document or before his death caused such document to be drafted.
LOST WILLS, FORGED WILL AND THE ONUS OF PROOF
LOST WILLS – a lost will does not affect the fact that the testator left a valid will. Contents of the will may be proved by means of documentary or oral evidence
Forged wills – it was held in Kunz v Swart that a will which is complete and regular on the face of it is presumed to be valid until the contrary is proved. The onus which can be of vital importance then rests with the party who maintains that the will is invalid.
CHAPTER 4 – AMENDMENTS TO WILLS
Amendment defined in the act as “deletion, addition, alteration or interlineations”
Deletion is defined in the Act as “a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion cancellation or obliteration that contemplates the revocation of the entire will”. 2 types of amendments will affect a will – namely whereby provisions are added and amendments whereby provisions are removed.
Amendments effected to a will before or during completion of the will are governed by common law. In S the accepted practice seems to be that all such amendments are signed or initialed by the testator and attested by the witnesses.
Section2 (1) (b) and 2(2) govern the formalities with which an amendment made after the execution of a will must comply. Formalities here are exactly same as those applying to the initial execution of a will.
CHAPTER 5 – REVOCATION OF WILLS
Animus revocandi – is the intention to revoke a will. A will may be revoked expressly or tacitly. A testator cannot revoke his will orally even if in the presence of witnesses.
Marriage status – if a person gets married his or her status changes to that of married person. But this does not entail an automatic revocation of the persons will.
Divorce – does affect the testators will only for a limited time and only in respect of certain beneficiaries. If a person dies within 3 months after his or her marriage is dissolved by a divorce or annulment the previous spouse will not inherit under that persons will. A person is therefore given 3 months to change his or her will after the divorce or annulment and is this is not done – say if a testator dies four months after his or her divorce/annulment and has not changed his will then the previous spouse will inherit.
Express revocation:
- Where a testator makes a later valid will in which he or she expressly revokes all previous wills. This clause is called a revocation clause.
- when an unmarried testator expressly revokes his or her will by means of a subsequent anc
- Common law – practice if a testator destroys part or entire will with the intention of revocation.
The capacity to benefit under a will: The fundamental principle is that any person, whether natural or juristic, whether born or unborn may be a beneficiary under a will.
adopted and illegitimate children – both children can inherit The unborn – must be conceived at the moment when the bequeathed benefit vests in him or her. PERSONS WHO MAY NOT INHERIT TESTATE OR INTESTATE: the person who murdered the testator. (Die bloedige hand – the bloody hand does not inherit), this applies to the person who has murdered the deceased’s parent, child or spouse. If a person was insane when murdering the testator he has the capacity to inherit. Common law – a person whom negligently causes the death of a testator cannot inherit from him or her. Marriage in cop – if a spouse married in cop murders his or her spouse he does not inherit half of joint estate Extramarital children – can inherit. Testate – the person that writes or types the will is disqualified from benefiting under this will Testate – a person that signs or witnesses the will is disqualified from benefiting under the will
CHAPTER 8 – VESTING OF BENEFITS
Vested – has 2 meanings depending on the context – “right vests in a person” – it usually means that such a person is the holder of the right. “Vest can be secondly used to draw a distinction between a right that is certain and one that is conditional. If a beneficiary has a vested right it is certain that the right cannot be taken away, if he has a contingent or conditional right this means that the right is not yet vested in him.
The presumption that vesting takes place on a testator’s death:
Dies cedit – means that when a beneficiary gets a vested right to claim delivery of the bequeathed benefit unconditionally 9whether or not the exercise of this right is delayed until some future date which is certain to arrive). This is a technical term used to describe the moment in time when the beneficiary acquires a vested right. Normally takes place immediately on the death of testator, therefore if the beneficiary dies in the interim this benefit will devolve to his estate.
Dies venit – the time when the beneficiaries right to claim delivery of the bequeathed benefit becomes enforceable.
Vesting and conditional bequests: A testator may make a benefit conditional – fulfillment of a suspensive condition (for example the beneficiary obtains a degree)
Vested right – is any benefit not subject to a suspensive condition.
Fideicommisum – more than one beneficiary that inherits that same property Usufruct – one person has ownership of property and one person enjoys use and fruits of benefit.
CHAPTER 9 – FREEDOM OF TESTATION AND POWER OF APPOINTMENT
Freedom of testation – means the freedom of a person to execute a valid will to govern the transmission and use of property by will and to govern the activities and lives of others after his death.
Power of appointment – is the delegation of the testator’s power to appoint beneficiaries in his will to someone else.
Competence of the court to make alterations to a will: Voluntas testatoris servanda est – testator is free to dispose of his estate as he wishes and the court must enforce the provisions of the will except for a few exceptions: High court has inherent jurisdiction to delete something from a will that was inserted by mistake and may even add words to a will if this is necessary to give effect to the wishes of the testator by way of rectification. In a case where the circumstances since making the will have changed to such a degree that it would have been impossible for the testator to have foreseen them, the court has authority to deviate from the terms of the will. Common law – contra bonos mores – provision in a will impossible, too vague or in conflict with the law. Court will not give effect to such a provision Conditions that are contra bonos mores – benefit left only “if beneficiary is unmarried” but provision such as spouse inherits as long as she does not remarry is allowed. A testator cannot rule the live of beneficiaries from the grave. Common law – conditions which require someone to live in a certain place or on a certain property are valid and enforceable
Power of appointment:
Children - The duty of support of children of a testator passed to the estate of the deceased parent. Even if the children were extramarital, they had a claim for maintenance out of the deceased estate, provided that the estate was large enough to provide maintenance for the legitimate children, who had a prior claim. Even a major child that is unable to support him or herself is entitled to maintenance from his parents estate. Surviving spouse – maintenance order made upon divorce is not necessarily terminated upon the death of the maintenance debtor. If a marriage is dissolved y death after the commencement of this act (maintenance of surviving spouse act 27 of 1990) the survivor shall have a claim against the estate of the deceased spouse for the provision of his reasonable maintenance needs until his death or remarriage in so far as he is not able to provide therefore from his own means and earnings. Reasonable maintenance needs – relevant factors considered – amount in the estate available for distribution to heirs and legatees (s3(a)) , existing and expected means earning capacity , financial needs and obligations of the survivor and the subsistence of the marriage (s3(b)) , standard of living of the survivor during subsistence of marriage and spouses age at the death of spouse (s3(c)). The survivors claim for maintenance has the same order of preference in respect of other claims against the estate as a claim for maintenance of a child , if claims compete against each other both claims will be proportionately reduced
Delegation of testamentary power (power of appointment) General principle is that a testator must exercise his testamentary power himself and may not leave it another to decide who will inherit under his will. However there is exception to this rule:
- bequest to charitable organizations – may authorize administrator of the estate to nominate beneficiaries
- Bearer on an interim right – fiduciary – to nominate the eventual beneficiary.
CHAPTER 11 – SUBSTITUTION:
Substitution – takes place when a testator appoints a beneficiary to inherit a benefit and at the same time appoints another beneficiary to take first mentioned beneficiaries place. Direct substitution – occurs where a testator names a substitute or even a whole series of substitutes who are to inherit if the instituted heir or legatee does not. Direct substitution is substitution in the alternative. Fideicommissary substitution – occurs where a testator directs in his or her will that after his death a series of successors (heirs or legatees) are to inherit his or her whole estate of part of it , or specific assets ,so that the benefit passes from one successor to another. Fiduciary – this is the first successor – fideicommissary is every beneficiary after that.
CHAPTER 12 - FIDEICOMMISSUM
Fideicommissum – when a testator creates a fideicommissum he leaves property (almost always material corporeal things) to a fiduciary, subject to the burden of handing it over in full ownership to a fideicommissary. Example – “I leave my farm to my son John. Upon his death it must go to my grandson Peter.”
Restrictions on fideicommissa – The immovable property act of 1994 – restricts all fideicommissa of immovable to a maximum of two substitutions after the original fiduciary has become owner. Section 2(1) – court has statutory power to remove modify burdens – allows a beneficiary who has an interest in immovable property subject to a restriction imposed by will or other instrument to apply to a court on the ground that such removal or modification will be to the advantage of any beneficiaries. Section 3 – provides that if court finds that share is too small for beneficial occupation, prohibition against subdivision or because circumstances have arisen which the testator did not foresee.
Conditional fideicommissa – Ordinary conditional fideicommissa – the property is left to one beneficiary subject to the condition that if a particular uncertain future event takes place the property is to pass to another beneficiary. If that uncertain future event does not take place then the fiduciary will remain owner and when he eventually dies the property will be an asset in his estate.
Si sine decesserit clause – if someone dies without children – if a testator bequeaths his or her property to an estate of another, stipulating that if the beneficiary dies after the t leaving no children (si sine decesserit), the property or estate must pass to a third party.
Fideicommissum residui - property is left to a beneficiary subject to the condition that as much of it as may be left at the time of the beneficiary’s death is to devolve upon another person. This therefore constitutes an exception to the general rule that the fiduciary may not alienate the fideicommissary property.
The legal position of the fiduciary - may not alienate or mortgage the fideicommissary property except where he obtains the cooperation of all fideicommissaries and if they are all majors. Alienation or mortgage is possible in all other cases with the consent of the High court.
Insolvent fiduciary – .fideicommissary property does not become part of his insolvent estat e Marriage in cop - fideicommissary property does not form part of joint /common estate. Fiduciary - is obliged to manage the fideicommissary property as a reasonable person. Fiduciary – entitled to the fruits or produce of the fideicommissary property. Mine – where there is a mine on the fideicommissary property the fiduciary is entitled to the interest on the price obtained for the minerals. Fiduciary predeceases the testator – the fideicommissary acquires a vested right to the ownership of the property at the very moment the testator dies.
fideicommissary is the person to whom the fiduciary must hand over the fideicommissary property as directed in his or her will by the testator Positive law – can take steps to protect his interests - for immovable property may have his right registered against the title deeds of the property. Usufruct – is a personal servitude (limited right) occurs where a testator bequeaths ownership of a thing to one person and the right of use of the thing to someone else (the usufructary , whom takes the fruits and enjoys the thing) Distinction between fideicommissum and usufruct – fideicommissum ownership of property always vest in the fiduciary. In a usufruct the usufructary will never have ownership.
CHAPTER 13 – THE TRUST
Concept of treuband – to be entitled party, not for oneself but for another or for a particular impersonal purpose. 2 types of trusts – inter vivos trust and trust mortis causa. We only look at trust mortis causa.
Trust – the arrangement through which the ownership in property of one person is by virtue of a trust instrument made over or bequeathed – 1. to another person , the trustee – in whole or part to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument of for the achievement of the object stated in the trust instrument 2. to the beneficiaries designated in the trust instrument, which property is placed under the control of another person, the trustee, to be administered or disposed of according to the provisions of the trust instrument for the benefit of the person or class of persons designated in the trust instrument or for the achievement of the object stated in the trust instrument.
Trust instrument – is defined as a written agreement, a testamentary writing or a court order in terms of which a trust was created (s1). In terms of section 2 a document which represents the reduction to writing of an oral agreement by which a trust was created or varied shall also be deemed to be a trust instrument.
Requirements to establish a valid trust: founder must intend to create a trust trust must be created by means of a written agreement (anc) ,a testamentary writing or a court order trust property must be established for an object or a purpose essential that the purpose of the trust is clearly indicated
Legal position of the trustee: Trustee is the person who administers the trust property for the benefit of the trust beneficiaries or for an impersonal purpose, irrespective of whether the trustee or the beneficiaries are entitled to the trust property or not. Any person including the founder of a trust, who is authorized to act a as trustee under section 6 of the act. A founder nominates or appoints a trustee before the master authorizes such a nomination.
Power of assumption – is the capacity given to an existing trustee to appoint additional trustees. A trustee may only assume another trustee if such power of assumption has been conferred upon him in the trust instrument.
Power and duties of a trustee: Trustee must act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another.
- The trustee must lodge the trust instrument of a certified copy with the master before he assumes control of trust property.
- trustee has to furnish security if not exempted in the trust instrument (s6(2))
- trustee must furnish the master with an address where notice and process may be served upon him
- whenever he receives money in his trust account - funds to be deposited into the trust bank account
CHAPTER 16 – INTERPRETATION OF WILLS
High court is the only court that may interpret a will a magistrate court has no jurisdiction to do so.
When to interpret a will: The necessity for the interpretation of a will by the court arises only where there is some obscurity or ambuity in the will.
The principles of interpretation of wills: Golden rule – wills is that the testators intention and it appears from the word he used in his will, must be ascertained. The golden rule is, therefore to determine the testators intention as it appears from his will read as a whole.
Sources of interpretation: 1. the will itself 2. ordinary grammatical and everyday meaning 3. Technical meaning – unless it is apparent from the context of the will. 4. Rectification – occurs wherein the court adds or deletes words or rectifies an obvious mistake made by the testator in order to clarify the meaning of the will. 5. Armchair evidence – is the evidence which the sort uses to place itself in the position in which the testator was at the time of the making of the will by paying attention to all the relevant facts and circumstances. 6. Extrinsic evidence – is evidence outside the document itself it other words evidence of facts which do not appear from the document itself. Where the will is clear and testators intention appears clearly from it no extrinsic evidence is admissible 7. Rectification takes place where a court adds deletes or changes something in a will because the testator made a mistake when making the will and the will does not reflect his intention correctly. A will can be rectified when a will after the testator’s death a mistake in the will and the will therefore does not represent the testator’s intention. The court will then rectify the mistake. 8. prerequisites for rectification – because of mistake the will in itself does not represent the testators intention , of what the testator really meant to say needs to be proven 9. Extent of courts power to rectify – clerical mistake (10 000 instead of 1000), words or clauses can be inserted erroneously; word or clauses can be omitted erroneously. 10. presumptions – person may dies partly intestate and partly testate , presumption that testator intended for all his children to inherit equally , if a testator had a will and when he dies the will cannot be found it is presumed he destroyed it 11. Costs of rectification – are born by the testators estate
CHAPTER 17 – ADMINISTRATION OF DECEASED ESTATES
Master of the high court – is the upper guardian of all minor persons. He also supervises the administration of deceased estates
Death notice (s7) – death notice is to prepared and lodged with the master when a person dies. Duty of the surviving spouse or nearest relative or person in control of property.
Registration of wills - (s8) – every person who has a will in his possession at the time after his death shall forthwith deliver this will to the master or magistrate concerned. This does not necessarily mean that the will is valid.
Preparation of an inventory – 2 inventories to be lodged with the master – 1 st - preliminary inventory prepared before the L and the second inventory must be compiled by the executor after his or her appointment. –
provided a classification of assets under 4 categories , immovable property , movable property , claims in favour of the estate and cash found in the estate.
Executor – is the person who normally winds up the deceased estate. He/she has the power to accept payment on behalf of the estate, to transfer ownership of assets in the estate, to pay the estate creditors, and to distribute the remaining assets among the legatees and heirs of the estate. Security – general rule is security is required by all executors unless – they are testamentary or assumed and have been exempted by the will from providing security or are close family members of the testator (spouse).
L – the issuing of the letters of executorship entitles the person to whom they are granted to administer the assets in S.
Duties of the executor – the executor is in a position of trust in relation to the estate. Common law – must disclose any personal interest they might have when dealing with their fiduciary duties, they may not reap any secret profits if an executor buys property from the estate, and they need to ask the court for permission to do so. Duties set out in the act – to preserve the estate during its administration and to liquidate the estate. To liquidate to sell enough and only enough assets to pay creditors out of the estate.
Specific duties set out in the act – 1. he must take personal possession of all assets and documents relating to estate 2. draw up an inventory of estate assets must state values – an executor that sells assets not in the inventory commits an offence 3. He must ascertain who the creditors are and get them to submit their claim. – does this by advertising the death in GG and another newspaper. – section 29 of the act. 4. He must assess solvency or otherwise of the estate. 5. Open a bank account in the name of the estate as soon as he holds R100 or more of estate money. 6. Must liquidate the estate – sell sufficient assets to pay the creditors and must not sell more except with permission of the master. 7. L&D account – list all assets together with valuations including fiduciary assets, all creditors with full details. This account is sent to the master for approval and must lie for public inspection – section 35 – advertisement of account in GG and another newspaper stating account is lying for inspection for the period of 21 days 8. when account lied for inspection and no objections the executor must pay creditors and beneficiaries in the estate according to account 9. if executor is unable to pay funds to beneficiaries within 2 months after finalizing the account – he must these funds to the master – guardians fund 10. after the executor has performed all his duties – he is entitled to his discharge – (s56)
CHAPTER 18 – COLLATION
Collation is the principle according to which the executor of an estate must under certain circumstances take benefits given to certain heirs by the deceased during his lifetime into account when distributing the estate among certain beneficiaries. Collation is based on a presumption that parents wish to treat their children on an equal basis as far as succession is concerned.
Who must collate – only takes Place in the direct line of descendents - this is deceased children and their children. Person who collates has the choice of collating goods or their value.
Benefits that must be collated: Benefits received as a child as part of his inheritance. Benefits received for the promotion of a Childs occupation or business Benefits given with a view to a marriage.
2.1 Meaning of “survivor” and “spouse” in the Maintenance of Surviving Spouses Act 27 of 1990 and the Intestate Succession Act 81 of 1987 The Intestate Succession Act is discussed in chapter 2 of the study guide and the Maintenance of Surviving Spouses Act 27 of 1990 in par 9.1 on page 113 et seq of the study guide. You should study the following paragraphs in conjunction with these paragraphs. Although both the Maintenance of Surviving Spouses Act 27 of 1990 and the Intestate Succession Act 81 of 1987 confer rights on “spouses” who have been predeceased by their husbands or wives, neither defines the word “spouse”. In terms of section 1 of the Maintenance of Surviving Spouses Act “survivor” is defined as “the surviving spouse in a marriage dissolved by death”. The Constitutional Court had to decide on the meaning of “spouse” and “survivor” as used in the Maintenance of Surviving Spouses Act in relation to Muslim marriages ( Daniels v Campbell and Hassam v Jacobs NO ) and persons living in a permanent heterosexual life partnership ( Volks v Robinson ). The meaning of these words as used in the Intestate Succession Act also came up for decision in respect of Muslim marriages ( Daniels v Campbell and Hassam v Jacobs NO ) and persons living in a same-sex life partnership ( Gory v Kolver ). . (a) Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) In this case, the applicant had been married to her husband (the deceased) for 30 years. The couple were married by Muslim rites. The marriage was monogamous at all times. It was never solemnised by a marriage officer appointed in terms of the Marriage Act. The deceased died intestate. The applicant was told by the Master that she could not inherit from the estate of the deceased because she had been married under Muslim rites, and therefore was not a “surviving spouse”. A claim for maintenance against the estate was rejected on the same basis. The Constitutional Court held that the word “spouse” in its ordinary meaning included parties to a Muslim marriage. It further held that the relevant Acts were to be interpreted so as to include a party to a monogamous Muslim marriage as a spouse. So interpreted, the Acts were not invalid and unconstitutional. A declaration had to be made indicating to all interested parties that the applicant was a “spouse” and a “survivor” under the Acts.
(b) Hassam v Jacobs NO [2009] ZACC 19 In this case, the Constitutional Court held that women who are party to a polygynous Muslim marriage concluded under Muslim personal law are spouses for the purpose of inheriting or claiming from estates where the deceased died without leaving a will. Effect of Daniels v Campbell and Hassam v Jacobs NO on the law of succession A party to a Muslim marriage, irrespective of whether it is monogamous or polygynous, is a “spouse” and a “survivor” in terms of the Intestate Succession Act and the Maintenance of Surviving Spouses Act and can therefore be an intestate heir of the deceased and can claim maintenance from the deceased estate.
(c) Govender v Ragavayah NO 2009 (3) SA 178 (D) In this case the KwaZulu-Natal High Court, Durban held that the word “spouse” as used in the Intestate Succession Act 81 of 1987 includes the surviving partner to a monogamous Hindu marriage.
(d) Volks v Robinson 2005 5 SA 446 (CC) You will find a reference in the study guide on page 113 to Robinson v Volks 2004 (6) BCLR 671 (C) in which the Cape Provincial Division of the High Court found section 1 of the Maintenance of Surviving Spouses Act to be unconstitutional to the extent that it fails to include permanent life partners within the ambit of the Act. However, the Constitutional Court overturned this decision in Volks v Robinson 2005 5 SA 446 (CC). You have to amend this reference to reflect the new position: In Volks v Robinson the majority of the judges of the Constitutional Court found that differentiating between a spouse and a heterosexual life partner (ie, someone of the opposite sex to the deceased) by excluding the heterosexual life partner from a maintenance claim against the estate of his or her deceased life partner in circumstances where a spouse would have had such a claim does not constitute unfair discrimination. Nor does it violate the surviving life partner’s right to dignity. The Court was of the opinion that the law may distinguish between married and unmarried
people and may accord benefits to married people which it does not accord to unmarried people. In a minority judgment , Justice Mokgoro and Justice O’Regan disagreed with the majority. They were of the opinion that cohabiting partners are a vulnerable group and that in the absence of legal regulation, the fact that they are excluded from the provisions of the Act can have a grave impact on their interests and furthermore that limiting the scope of the Act to married spouses constitutes unfair discrimination which cannot be justified.
Effect of Volks v Robinson on the law of succession A heterosexual life partner is not a “spouse” or a “survivor” in terms of the Maintenance of Surviving Spouses Act and cannot claim maintenance from the deceased life partner’s estate. (e) Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (3) BCLR 249 (CC); 2007 (4) SA 97 (CC) The deceased and the applicant (Gory) were, at the time of the deceased’s death, allegedly partners in a permanent, same-sex life partnership. When the deceased died intestate, his parents nominated the first respondent (Kolver) to be appointed by the Master as the executor of their son’s estate, and claimed to be entitled to his assets as his intestate heirs. This resulted in a dispute with the applicant as to who the lawful intestate heir was. In the Constitutional Court the issue was whether section 1(1) was unconstitutional. The Court held that it was unconstitutional.. The Court held that section 1(1) of the Act confers rights of intestate succession on heterosexual spouses but not on permanent same-sex life partners. As these partners were at the time not legally entitled to marry [this position was subsequently changed by the promulgation of the Civil Union Act 17 of 2006 – see below] this amounted to discrimination on the listed ground of sexual orientation in terms of section 9(3) of the Constitution, which discrimination is presumed in terms of section 9(5) to be unfair unless the contrary is established. No justification was found in terms of section 36 for the limitation of these rights. It was held that the order of constitutional invalidity should operate retrospectively in the main, but with limitations so as to reduce the risk of disruption in the administration of deceased estates and to protect the position of bona fide third parties as far as possible.
Effect of Gory v Kolver on the law of succession: A partner in a same-sex life partnership in which the partners have undertaken reciprocal duties of support, is a “spouse” in terms of the Intestate Succession Act. It may be asked whether the decision in Gory v Kolver NO and Others Case CCT 28/06 remains of importance after the adoption of the Civil Union Act (see below). It is submitted that the decision remains valid for partners in a same-sex life partnership in which the partners have undertaken reciprocal duties of support without concluding a civil union.
(f) Civil Union Act 17 of 2006 This Act was signed into law on 30 November 2006. In terms of this Act, marriage is no longer restricted to persons of the opposite sex. According to section 1 of the Act, “a ‘civil union’ means the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others.” (my emphasis) According to section 13(1), “the legal consequences of a marriage contemplated in the Marriage Act [25 of 1961] apply, with such changes as may be required by the context, to a civil union.” The Act further provides in section 13(2) that any reference to “marriage” in any other law, including common law, includes with such changes as may be required by the context, a civil union. Also, the words “husband”, “wife” or “spouse” in any other law, including common law, include, with such changes as may be required by the context, a civil union partner.
common law power to delete provisions in a will that are against public policy.
are invalid. It is only where the differentiation can be considered to be unfair discrimination on the grounds of race, gender and faith that they can be held invalid and be deleted. 44 SUMMARY OF PRESCRIBED CASES:
BRAUN v BLANN AND BOTHA – conferment of a power of appointment upon a trustee: In clause 3 of her will a testator had bequeathed the residue of her estate to her administrators. She had conferred upon the administrator inter alia the power to appoint in their discretion the income as well the capital beneficiaries from a group of persons she designated. She further provided when the trust must be dissolved and in a proviso to clause 4(d) she empowered her administrator in certain circumstances to “apply such portion of the capital as they determine to the creation of a trust for such lawful issue. The testators daughter contested the validity of the trust on the ground hat a power of appointment could not be conferred onto a trustee.
Court dismissed the application and the appeal was unsuccessful. 2 important matter have been decided here. the first one concerns the granting of a power of appointment to trustees. after this case it is certain that power can be granted to trustees to appoint beneficiaries from a specified class of persons designated by the testator. The second important matter decided by the appellate division is that the trust mortis causa is no longer constituted as a fideicommissum as previously.
CUMING v CUMING – interpretation of wills and the so-called “golden rules of interpretation: The testator left the residue of his estate to his sister in law , the respondent, whom was married in community of property. The testator was aware that the sister in law was estranged from her spouse for 16 years and were separated. In the L&D account the executor awarded the residue to the testators brother. The respondent lodged an objection with the master but it was not sustained by the master. She then applied to the court for an order setting aside the masters direction and amending the account so as to transfer residue of estate to her , unencumbered by any community .court granted application and an appeal against this decision was rejected.
Once testators intention in will is determined effect must be given thereto.
DU PLESSIS v STAUSS – si sine liberis decesserit clause The testator one Strauss in his will left a farm to his son ,A L Strauss and also bequeathed a farm to each of his 2 daughters. There bequests were inter alia to a condition. If t leaves a benefit to A and provides that the property must go to B if A should die without children (si sine liberis decesserit) there is no problem if A should die without children. B will then inherit the property. If A dies and is survived by children , the fideicommissary condition is not fulfilled and B can therefore not inherit.
From this decision it is clear that if a si sine liberis decesserit clause is attached to a conditional fideicommissum ,the mere fact that children are not mentioned in the condition means that a fideicommissum tacitum is created in their favour , provided that the children are descendents of the testator.
GAFIN v KAVIN – capacity of an heir to inherit from the wife whom he had killed while mentally ill
The respondent and his wife executed a joint will in terms of which it was provided that , in the event of his wife predeceasing him , he was to be the sole heir of her estate. The respondent shot and killed his wife and 2 of his children and wounded his other child, he was charged with murder but found not guilty because as he was mentally ill, he was incapable of acting in accordance with an appreciation for the wrongfulness of his acts at the time of the commission of his acts and was accordingly not criminally responsible for his acts. The executor of the estate of his deceased wife applied for an order declaring that the respondent was unworthy to inherit from his wife’s estate “die bloedige hand”. The court accepted the findings of the trial court that the respondent was not criminally responsible for his acts and found that he was not disqualified from inheriting from his wife.
From this decision it is clear that where the killing is justified (self defense , no fault of the perpetrator then he is not unworthy to inherit from his victim HARRIS v ASSUMED ADMINISTRATION ESTATE MCGREGOR – vesting on intestate succession:
The testator created a trust in respect of the whole of his estate and stipulated that the trust income was to be paid to his wife during her lifetime. After her death the trust capital was to devolve upon the children. Should they not have any children , it was to go to his brother, AG Macgregor and to his brothers children if his brother predeceased the testators wife. No children were born of the marriage of the testator and his wife and his brother predeceased the testator wife the testators wife leaving no issue surviving him. Every contingency that the testator provided for therefore failed and consequently the capital of the estate had to devolve ad intestato.
In this decision the appellate division has brought about certainty concerning a matter on which the courts were divided in the past. Where the deceased died without making a will at all or without leaving a valid will the intestate estate vests on the date of his death when his intestate heirs also have to be determined. On the other hand where the testator leaves a valid will which took effect of his death but which subsequently became inoperative either toto or pro parte the intestate estate vests on the date when it became certain that the will had become inoperative. The intestate heirs will then need to be determined not at the testators death but rather when the intestacy occurred.
JEWISH COLONIAL TRUST v ESTAT NATHAN – meaning of the term “vest” The testator bequeathed his estate in trust to administrators and directed that certain annuities were to be paid out of income for a period of fifty years. Thereafter the residue of the estate was to be handed over to the Jewish colonial trust for the purpose of creating a fund the “Solomon Nathan Family Fund”. After fifteen years had passed the Jewish colonial trust claimed payment from the administrators of so much of the residue as was not required for payment of the annuities. In support of their claim they alleged ,inter alia, “plaintiff Jewish colonial trust is the residuary heir or legatee and its interest as such is in law vested in it.” The administrators objected to this declaration on the ground that the Jewish colonial trust is not the residuary heir or legatee but a trustee of fiduciary without beneficial interest. The court a quo upheld the exception ,but on appeal it was rejected. The court held that the Jewish colonial trust obtained vested rights on the death pf the testator. however it was further found that grounds for the acceleration of the benefit could not be allowed.
KIRSTEN v BAILEY – testamentary capacity – undue influencing of a testator: The testator made 3 wills shortly before her death. The defendant was the only beneficiary in terms of the first and third will. The master accepted the third as the testators valid will. The testators intestate heirs who were beneficiaries under her second will , challenged the validity of the first and third will on the ground that the testator had not had the required testamentary capacity when she made them. The plaintiffs also claimed that the defended had unduly influenced the testator when she made the first and third wills. The plaintiffs consequently claimed an order setting aside the third will and declaring the second will to be the testators last will. Alternatively they claimed an order declaring that the testator had died intestate. The court held that she had died intestate.
LELLO v DALES – right of accrual – ius accrescendi The testator left her estate in trust and stipulated that the income of the trust was to be paid to her son Harry during his lifetime. On Harry death the estate was to devolve on his lawful issue. If he should die without leaving lawful issue the estate was to devolve as follows “ half to my brother Edward , or his lawful issue if any and the other half in equal shares to my nephews and nieces , the children of my brothers”
In addition Edward had 3 brothers. in all these brothers had 13 children who survived the testator. Edward had never married and died intestate before Harry’s Harry also survived the testators remaining brothers. After he died childless his widow (as executor) applied for a declaratory order to the effect that the half that Edward and his children would have inherited if they had survived Harry was now to devolve on harries estate in terms of intestate succession. The nephews and nieces opposed the application contending that Edwards half should accrue to their half of the estate. The court a quo held that Edwards half shoul d go to harrys estate. An appeal against this decision was upheld
Summary - law of sucession 1
Course: Law of Succession (LAWS4059)
University: University of the Witwatersrand, Johannesburg
This is a preview
Access to all documents
Get Unlimited Downloads
Improve your grades
