313 study unit 2

Question 1

What does the law of intestate succession determine?

Answer 1

It determines how succession should take place when the testator did not regulate succession through a valid will or pactum successorium.

Question 2

When does a person die intestate?

Answer 2

A person dies intestate when they:
* Do not leave a will at all
* Execute a valid will that becomes wholly or partly inoperative
* Have a valid will that fails to dispose of all assets
* Leave a document purporting to be a will that does not meet legal formalities.

Question 3

What are the two branches of the law of succession in South Africa?

Answer 3

The two branches are:
* Common law (testamentary and intestate law of succession)
* Customary law (only intestate law of succession).

Question 4

What is the definition of a descendant in the context of intestate succession?

Answer 4

A descendant includes the lineal descendants (downwards line) of the deceased.

Question 5

What is an ascendant in the context of intestate succession?

Answer 5

An ascendant refers to the ancestors of the deceased, or anyone in the ascending line of relationship.

Question 6

Define collateral in the context of intestate succession.

Answer 6

Collateral refers to a person related to the deceased because they share a common ancestor, such as a full or half-brother.

Question 7

What does the term ‘sarp’ refer to in intestate succession?

Answer 7

Sarp refers to a line of descendants of common ancestry, including every descendant of the deceased who survives or a predeceased descendant who leaves living descendants.

Question 8

What happens in succession by representation?

Answer 8

In succession by representation, a descendant of a predeceased heir moves up into the place of the predeceased heir.

Question 9

Who inherits if the deceased is not survived by a spouse, descendant, parent, or descendant of a parent?

Answer 9

The nearest blood relation inherits.

Question 10

How can a deceased die in terms of testamentary status?

Answer 10

A deceased can die testate, intestate, or partly testate and partly intestate.

Question 11

What is the significance of the case Harris v Assumed Administrator?

Answer 11

It determined that intestacy could happen at different points based on the validity of the will and the date when it became inoperative.

Question 12

What changes did Section 1(2) of the Intestate Succession Act bring about regarding illegitimate children?

Answer 12

It allows any child to inherit intestate from both parents regardless of their circumstances of conception.

Question 13

What is the legal status of a child born through surrogacy?

Answer 13

If a valid surrogacy arrangement exists, the child is seen as the legitimate child of the commissioning parent(s) and inherits from them.

Question 14

What is the ‘nasciturus fiction’ in the context of intestate succession?

Answer 14

It refers to the principle that an unborn child is capable of inheriting if conceived at the time of the devolvement of the benefit.

Question 15

What was ruled in Bhe v Magistrate Khayelitsha regarding the Intestate Succession Act?

Answer 15

The Constitutional Court declared section 23 of the BAA unconstitutional and extended the Intestate Succession Act to customary law.

Question 16

What did the court find in Bwanya regarding life partners?

Answer 16

The court confirmed that excluding life partners from the definition of ‘spouse’ in the Intestate Succession Act is unconstitutional.

Question 17

What is the effect of adoption on a child’s inheritance rights?

Answer 17

Adoption terminates all rights and obligations between the child and their natural parents, making the child the legal child of the adoptive parents.

Question 18

What happens if a black person dies intestate and maintained an African customary lifestyle?

Answer 18

The estate would devolve according to section 23 of the BAA if they died before 27 April 1994, or according to the Intestate Succession Act if they died after.

Question 19

What are the rules of intestate succession under the Intestate Succession Act?

Answer 19

The order of intestate succession includes:
* By spouse(s) only
* By descendant(s) only
* By spouse(s) and descendant(s).

Question 20

What is the ‘child’s portion’ in intestate succession?

Answer 20

The child’s portion is calculated by dividing the deceased estate by the number of surviving children and predeceased children who left descendants.

Question 21

How does marital regime affect inheritance under intestate succession?

Answer 21

The surviving spouse’s share of the joint estate or accrual does not form part of the intestate estate of the deceased.

Question 22

True or False: Unborn children can inherit if they are not born alive.

Answer 22

False

Question 23

What is the initial deduction from the estate of the deceased?

Answer 23

The amount entitled to the surviving spouse will first be deducted from the estate.

Question 24

How is the balance of the estate distributed after the spouse’s deduction?

Answer 24

The balance will be distributed among the surviving spouse and the descendants.

Question 25

What do multiple spouses inherit from the deceased's estate?

Answer 25

Each surviving spouse will inherit the greater of a child's portion or a fixed amount of R250 000.

Question 26

What happens if the estate's assets cannot provide each spouse with the fixed amount?

Answer 26

The estate will be equally divided among the surviving spouses, and the descendants will receive nothing.

Question 27

Who inherits when the deceased is survived only by both parents?

Answer 27

Both parents inherit the intestate estate in equal shares.

Question 28

What types of parents are included in the definition of 'parents' for inheritance?

Answer 28

Biological, adoptive, and commissioning parents are included, but step-parents are excluded.

Question 29

How is the estate divided if the deceased is survived by one parent and descendants of a predeceased parent?

Answer 29

The surviving parent inherits half of the estate; the descendants of the deceased parent inherit the other half.

Question 30

What occurs if the deceased is not survived by a spouse, descendant, or parents?

Answer 30

The estate will be divided among the descendants of the deceased's parents.

Question 31

How is the estate divided among the descendants of the deceased's parents?

Answer 31

The estate is divided into halves, going to each parent's side, then to descendants by representation per stirpes.

Question 32

What is the inheritance rule for full and half-siblings?

Answer 32

Full siblings take shares from both halves; half-siblings take from the half of the estate of their related parent.

Question 33

Who inherits if the deceased is survived only by descendants of one parent?

Answer 33

Those descendants are the sole heirs.

Question 34

What happens if no spouse, descendant, parent, or blood siblings survive the deceased?

Answer 34

The nearest blood relation inherits per capita.

Question 35

What is the degree of relation for a mother or father?

Answer 35

1st degree.

Question 36

What is the degree of relation for a grandmother or grandfather?

Answer 36

2nd degree.

Question 37

What is the degree of relation for an aunt?

Answer 37

3rd degree.

Question 38

What is the degree of relation for a cousin?

Answer 38

4th degree.

Question 39

What does section 1(7) of the Intestate Succession Act state regarding disqualified heirs?

Answer 39

If disqualified or renounced, the benefit devolves as if they predeceased the deceased.

Question 40

What happens if a person repudiates an inheritance?

Answer 40

The repudiating heir's share will go to the surviving spouse or other heirs.

Question 41

What was declared unconstitutional in Bhe v Magistrate Khayelitsha?

Answer 41

The principle of male primogeniture in African customary law.

Question 42

When did the Reform of Customary Law of Succession Act come into force?

Answer 42

20 September 2010.

Question 43

What does section 2(1) of the Reform of Customary Law of Succession Act state?

Answer 43

The estate of any person subject to customary law does not devolve according to intestate succession.

Question 44

What is included in the definition of 'descendant' under section 1 of the RCLSA?

Answer 44

A person accepted by the deceased as their own child.

Question 45

What rights does section 4 of the RCLSA grant to women living under customary law?

Answer 45

The right to dispose of house property through a will.

Question 46

What is the distinction made in customary succession?

Answer 46

General succession (to general status) and special succession (to head of different houses in a polygynous household).

Question 47

What is the general principle regarding succession to status in customary law?

Answer 47

Succession to status is limited to males.

Question 48

What is the principle of male primogeniture?

Answer 48

A male is succeeded by his first-born son in a particular house.

Question 49

What is the preference order in succession?

Answer 49

Descendants over ascendants, ascendants over collaterals.