Law of Succession

HLSUA1A
CHAPTER 2
INTESTATE SUCCESSION
Prescribed Textbook: The Law of Succession in South Africa
3rd Edition
 Lecture Outcomes
• An understanding of Intestate Succession.
• Discuss capacity to inherit intestate.
• Explain constitutional challenges.
• Explain the order of succession under the Intestate Succession Act read with
the RCLSA
• Explain disqualification and repudiation.
 Introduction
• What is the law of intestate succession?
• The law of intestate succession comprises the legal rules or legal norms that determine
how succession should take place in cases where a testator fails to regulate succession
on death by way of a valid will.
• In South Africa, certain rules of intestate succession are codified in two Acts, namely;
• i. the Intestate Succession Act; and
• ii. the Reform of Customary Law of Succession Act (RCLSA)
• If the deceased lived under the common law system, only the Intestate Succession Act
applies to his/her estate.
• If however, the deceased lived under a system of customary law, the Intestate
Succession Act read with the RCLSA is applicable.
 Basic Concepts
• Know understand the meaning of the following basic concepts:
• Descendant
• Ascendant
• Collateral
• Stirps or stirpes
• Succession by representation per stirpes
 When does a person die intestate?
• In South African law it is possible for a deceased to die wholly testate, wholly
intestate or partly testate and partly intestate.
• Intestate succession applies if a deceased dies:
• i. without leaving a valid will at all;
• ii. having executed a valid will which has subsequently become wholly or partly
inoperative for some or other reason;
• iii. with a valid will that fails to dispose of all the deceased’s assets; and
• iv. leaving a document purporting to be a will, but which does not comply with the
formalities for wills and is not condoned in terms of section 2(3) of the Wills Act.
 The Law of Succession in the Legal System
The material rules of the law of succession (both the common law and customary law rules) operate in the private sphere and hence
law of succession is part of private law.
They prescribe what becomes of a person’s estate after death, who the beneficiaries are and what they will inherit. They also
determine the rights and duties that persons may have in a deceased’s estate. A deceased estate consist of all the assets and
liabilities a deceased person leaves behind after his death.
The formal rules describing the process by which a deceased estate is liquidated are referred to as the administration of estates.
The administration of an estate can be briefly defined as the process by which a deceased person’s debt are paid and the balances of
his estate is awarded and transferred to his beneficiaries. This process takes place in terms of the law and under the supervision of
the Master of the High Court.
The private international law of succession, consisting of statutory and common law rules, prescribe what should happen when a
testator has connections with a country other than South Africa.
 Vesting of an intestate inheritance
• Case – Harris v Assumed Administrator, Estate Mac Gregor 1987 (3) SA 563 (- A)
• In this case the deceased executed a valid will in 1941 and died in 1943. he stipulated that on
his death, his entire estate was to go into a testamentary trust of which his wife, the
appellant was to be the income beneficiary. He provided that on her death, the trust capital
was to be paid to the children born of their marriage. In the event of their dying without a
surviving children and on the death of the appellant, the capital of the trust was to go to the
deceased’s brother. If his brother predeceased the appellant, the capital of the trust was to
pass to his brother’s children if any.
• The deceased died leaving no children born of his marriage to the appellant. Furthermore,
in 1979 while the appellant was still alive the brother died leaving n children n of his own.
There was no provision made in the will for this contingency and the result of this was that
there was intestate as regard the devolution of the trust capital.
 … Harris v Assumed Administrator, Estate Mac
Gregor
• While the appellant and the responded (the administrator of the trust) agreed that intestacy had occurred as regards the
trust capital, they differed about the date when this occurred – was it when the deceased died (1943) or did it occur when
it was first determined that the will had failed (when the brother died in 1979)?
• This decision was vital because if it was to determined that the intestate vested in 1943, then in terms of the then
prevailing Intestate Succession Act of 1934, the deceased’s mother who only died in 1960 would have been an intestate
heir and her estate would have been the a recipient of the benefit.
• However, if it was determined that vesting of the deceased’s estate occurred in 1979, the appellant would have been the
only heir as she would have been his only surviving intestate relation at that date. It was decided that:
• 1.when a deceased dies without having made a will at all, or without leaving a valid will, his or her intestate estate vests on
the date of his or her death when his or her intestate heirs have to be determined.
• 2. when a testator dies leaving a valid will which took effect on his or her death but which subsequently became
inoperative, either in total or in part, his or her estate vests on the date when it first became factually certain that his or
her will had become inoperative. Any intestate heirs would have to be determined not at his/her death, but when the
intestacy occurred.
 Capacity to inherit intestate
• i. Only natural persons may inherit
• ii. Extramarital, adulterine and incestuous children
• iii. Children born as a result of artificial fertilization
• iv. Children born as a result of surrogacy arrangements
• v. Adopted children
• vi. Unborn children
 Constitutional challenges
• The constitutionality of the Intestate Succession Act as well as certain intestate
succession rules of the customary law of succession have been tested numerous
times in court.
• Study following cases from prescribed textbook:
• Bhe v Magistrate, Khayelitsha
• Daniels v Campbell
• Hassam v Jacobs
• Govender v Ragavayah
• Gory v Kolver
The order of succession under the Intestate
Succession Act read with the RCLSA
 Rule 1 (Section 1(1)(a)): deceased is survived by
spouse but by no descendants

Mother Father

Husband
: Wife:
Brother Decease Spouse
d

Pre-
deceased
• . child
 … Who will inherit from the deceased’s estate

• Spouse (wife) is the sole heir

• Even if the deceased is survived by parents, or brothers and/or sisters, they
are excluded

• What if the deceased is survived by more than 1 spouse?

• Where the deceased is survived by more than one spouse, the intestate estate
must be divided equally among all the spouses.
 Rule 2 (Section 1(1)(b)): deceased is not survived by
spouse but by descendants
Predece
Decease
ased
d
spouse

Pedecea
Child sed Child
child

Grandchil Grandchil
d d
• .
 … continuation Rule 2
• Where the deceased is survived by a descendant or descendants, but not by a spouse or spouses, the descendant or
descendants inherit the entire intestate estate equally and representation is possible.
• In the diagram on slide 14, the deceased died intestate. His wife and one child have predeceased him. He is survived by
two children and by two grand children, (children of his predeceased child).
• The deceased’s estate will be divided into three equal parts and each stirp of the deceased will inherit equally.
• This means that the two surviving children will inherit one third each.
• The share of the predeceased child will be divided equally between his descendants who will each receive one sixth of
the deceased’s estate.
• N/B in terms of section 1(7) of the Intestate Succession Act, if a child of the deceased has predeceased the deceased,
or is disqualified from inheriting or renounces the inheritance, then the share (which that child would have received)
passes equally to descendants of that child.
• This process is known as representation ex lege (by operation of law).
 Rule 3 (Section 1(1)(c)): deceased is survived by
spouse(s) and descendants
Predece
Decease
ased
d
spouse

Pedecea
Child sed Child
child

Grandchil Grandchil
d d
• .
 … continuation Rule 3
• Scenario 1 – Where deceased is survived by one spouse
• Where the deceased is survived by one spouse as well as a descendant or descendants, the
surviving spouse inherits whichever is the greater of either a child’s portion (also called a
child’s share) or an amount fixed from time to time by the Minister of Justice (the amount is
presently R250 000).
• Child’s portion – A child’s portion is calculated by dividing the deceased’s estate by the
number of children who have either survived him/her, or who have predeceased him/her
but have left descendant of their own, plus the number of surviving spouse.
• After the surviving spouse has inherited the child’s portion or the fixed amount, the
descendants inherit the residue (if any) of the intestate estate.
Pause for reflection - Matrimonial property regimes
recognized in South Africa

• South African law recognizes three matrimonial property regimes:

• 1. marriage in community of property
• 2. marriage out of community of property with accrual
• 3. marriage out of community of property with no accrual
• The Matrimonial Property Act governs the determination of the consequences of
the different property regimes and how to calculate what a spouse is to receive on
dissolution of marriage (whether by death of a spouse or divorce).
 … continuation Rule 3
• Example 1 – In community of property
• See diagram on slide 16
• Suppose the deceased and the spouse were married in community of property and the joint estate amounts to R600
000. the deceased’s estate will be divided as follows:
• Spouse receives her half share (R300 000) of the joint estate in terms of the matrimonial property law.
• The deceased’s intestate is worth R300 000 and this must be divided between the spouse and the children as follows:
• i. the child’s portion is R300 000/4 (that is the number of surviving children or predeceased children survived by
descendants plus the number of surviving spouses) = R75 000.
• The spouse will thus inherit R250 000 as it is greater than a child’s portion.
• The R250 000 must be subtracted from the amount available in the intestate estate (R300 000 – R250 000) and the
remaining R50 000 will be shared equally amongst the three children (each inherits R16 666,66).
• However, since one child is predeceased, his portion will be inherited by his two children in equal shares by
representation (each inherits R8 333.33)
 … continuation Rule 3
• Example 2 – Out of community of property with accrual due to surviving spouse
• See diagram on slide 16
• Suppose the deceased and the spouse were married out of community of property with the inclusion of the accrual
system. The deceased’s estate amounts to R450 000. the surviving spouse is entitled to R50 000 as accrual. The R50
000 accrual due to the surviving spouse in terms of the matrimonial regime must be deducted from the deceased’s
intestate estate before it is divided.
• The deceased’s remaining estate must be divided as follows:
• i. the child’s portion will be R400 000/4 = R100 000 an the spouse will thus inherit R250 000 as it is greater than a
child’s portion.
• The remaining R150 000 (R400 000 – R250 000) will be divided equally between the three children.
• However, since one child is predeceased, his portion will be inherited by his two children in equal shares by
representation (each inherits R25 000)
 … continuation Rule 3
• Example 3 – Out of community of property with accrual due to deceased’s estate
• See diagram on slide 16
• Suppose the deceased and the spouse were married out of community of property with the inclusion of
the accrual system. The deceased’s estate amounts to R1 350 000 but his estate is also entitled to R150 000
as accrual from the surviving spouse. The R150 000 accrual due to the deceased’s estate in terms of the
matrimonial regime must be added before the deceased’s intestate estate is divided. The deceased’s estate is
therefore R1 500 000 (R1350 000 + R150 000) and will be divided as follows:
• i. the surviving spouse will inherit the child’s portion (R375 000) as it is greater than R250 000.
• ii. The remaining R1 125 000 (R1 500 000 – R375 000) will be divided equally among the three children
(each inherits R375 000).
• However, since one child is predeceased, his portion will be inherited by his two children in equal shares by
representation (each inherits R187 000)
 … continuation Rule 3
• Example 4 – Out of community of property with no accrual
• See diagram on slide 16
• Suppose the deceased and the spouse were married out of community of property with the
exclusion of the accrual system and the deceased’s estate amounts to R1 200 000.
• The deceased’s estate will be divided as follows:
• The spouse will inherit a child’s portion of R300 000 as it is greater than R250 000.
• The remaining R900 000 (R1 200 000 – R300 000) will be divided equally among the three
children (each inherits R300 000).
• However, since one child is predeceased, his portion will be inherited by his two children in
equal shares by representation (each inherits R150 000)
 … continuation Rule 3
• Scenario 2 – Where the deceased is survived by more than one spouse
• Where the deceased is survived by more than one spouse, each surviving spouse
inherits whichever is the greater of a child’s portion or an amount fixed from time to
time by the Minister (presently R250 000).
• The descendants will inherit the residue (if any) of the intestate estate.
• Where the assets of the deceased are not sufficient to provide each spouse with the
amount fixed by the Minister, the estate is divided equally among surviving spouses
and the descendants receive nothing.
 Rule 4 (Section 1(1)(d)(i)): deceased is not survived
by spouse or descendants but by both parents

Mother Father

Brother Deceas Sister

ed

• Who inherits?
• Where there is no spouse or descendants, the parents inherit.
 Rule 5 (Section 1(1)(d)(ii)): deceased is survived by
one parent and the descendants of the other parent

Mother Father

Half
Predece brother
Sister Deceas ased
ed spouse
• Who inherits?
• Where there is only one surviving parent, the estate is cloven into two halves. The surviving parent
inherits one half of the deceased’s estate. The other half that would have devolved to the deceased
parent is divided equally between the deceased’s parent’s descendants – the sister and the half brother.
 Rule 6 (Section 1(1)(e)(i)(aa) – (cc)): deceased is not
survived by spouse, descendants or parents
Predecea Predece
sed ased
father mother

Predecea
Deceas
sed half Child
ed
brother

Child Child
• .
 … continuation Rule 6
• Where the deceased is not survived by a spouse, a descendant or a parent, but is survived by
descendants of his/her parents (for example, by a brother or a sister, whether full or half
blood), the intestate estate is divided into halves. N/B, it is said that the estate is cloven into
two equal shares with each share going to the side of one of the deceased’s parents.
• From there, one half goes to the descendants of the deceased father by representation per
stirpes, and the other half to the descendants of the deceased mother by representation per
stirpes.
• N/B the full brothers and sisters of the deceased will take a share from both halves.
However, half brothers and half-sisters take a share from the half of the estate of the
parent through which they are related to the deceased.
• See example on page 41 of prescribed textbook.
Rule 7 (Section 1(1)(e)(ii)): deceased is survived
by descendants of only one parent
• See diagram on page 42 – prescribed textbook
• N/B where the deceased is not survived by a spouse, descendant or parents,
and only one of the predeceased parents has left descendants, those
descendants are the sole heirs.
Rule 8 (Section 1(1)(f)): deceased is survived by
further relations
• See diagram on page 43 – prescribed textbook
• N/B where the deceased is not survived by a spouse, descendant, parent or a
descendant of a parent, the nearest blood relation inherits.
 Disqualification Repudiation
• In terms of section 1(7) of the Intestate Succession Act, if a person is disqualified
from being an intestate heir of the deceased or repudiates (renounces) an inheritance,
the benefit which that heir would have received devolves as if the heir had died
immediately before the deceased died.
• What this means is that the heir is deemed to have predeceased the deceased.
• If the disqualified heir has descendants of his/her own, those descendants will inherit
by representation the inheritance which the disqualified heir would have inherited.
• If the disqualified or repudiating heir has no descendants, then the share which he or
she would have received will go to the other heirs of the deceased according to the
normal principles of intestate succession.
 Repudiation
• It is important to note that where an heir repudiates an inheritance, section 1(7) must be applied in
conjunction with section 1(6) meaning that the following is the position:
• i. if an intestate heir of the deceased repudiates an inheritance and the deceased is survived by a
surviving spouse, the surviving spouse will inherit the repudiating heir’s share.
• ii. However, if the deceased is not survived by a surviving spouse, then the repudiating heir will be
deemed to have predeceased the deceased and his/her descendants will inherit by representation per
stirpes.
• iii. In the latter scenario, if it turns out that the repudiating heir has no descendants, the inheritance
will pass to the intestate heirs of the deceased according to the normal rules of intestate succession.
• N/B Section 1(6) will not apply when an heir is disqualified.
 The End
Next Lecture – Chapter 3
Testate Succession