Study Unit 1.1: Background Flashcards
Define the Law of Succession
What becomes of person’s estate after death, who the beneficiaries are and what they will inherit.
Differentiate between testate and intestate succession
Testate succession:
Person dies leaving a valid will
Intestate succession:
Deceased died without a valid will
➜Bhe v Magistrate, Khayelitsa:
Court ordered that the Intestate Succession Act had to be applied to intestate estates, irrespective of the cultural affiliation of the deceased.
What is not a valid will
➜Without a will
➜Disposes of certain assets and not all assets
➜Will is defective
Review the manner (ways) in which succession take place
➜Valid Will(Testamentary succession)
➜Without a valid will(Intestate succession)
➜Contract - antenuptial agreement(Pactum successorium)
Differentiate between the Law of Succession and Administration of Deceased Estates
Law of Succession:
➜What becomes of person’s estate after death, who the beneficiaries are and what they will inherit.
Administration of Deceased Estates:
➜The Master of the High Court administers the estate by declaring the will to be valid by scrutinising it
➜ Process in terms of which liabilities are paid and the assets (or remainder thereof) transferred to beneficiaries
Reflect on the “Dual Character” of the Law of Succession
➜Social function: associated particularly with maintaining and protecting the family as a social unit.
➜ Economic function: regulates the transfer of wealth upon a person’s death.
The common law of Succession that comprises testamentary and intestate succession rules, and
→ Customary law of succession that comprises only intestate rules. Previously by the rule of male primogeniture.
- Bhe v Magistrate Khayelitsha 2005 (CC) the court held that the Intestate Succession Act 81/87 must apply to all estates (‘temporary’ extension of application)
- This resulted in the Reform of Customary Law of Succession Act 11 of 2009(RCLSA) modifying the Customary law of Succession: The RCLSA modifies certain concepts such as the meaning of “spouse” and “descendant”
Indicate how you would classify the Law of Succession as part of the objective law
Not just one set out action, but rather 3 possible actions
➜Testate Succession - Wills Act
➜Intestate Succession - Intestate Succession Act
➜Customary law; Intestate Succession - Intestate Succession Act read with the RCLSA
Testator
Deceased leaving behind a will that bequeaths his/her estate.
Freedom of testation
The freedom of a person to dispose of his or her estate as he/she pleases
Estate
Assets and liabilities
Will
Unilateral, voluntary expression of the wishes of a person (testator) in a legally prescribed way (see formalities later), that determines what must happen to his/her property after his/her death
Codicil
Any addendum to an existing will dealing with an amendment, addition to a will etc. (must also comply with formality requirements since it constitutes a “will”).
Beneficiary
The person(s) to whom assets of the deceased are transferred ito testate or
intestate succession.
➜ Legatee
- Benefit known as a “legacy”
- Person who receives a specific asset ito testator’s will
- Legatee has a stronger position than heir when the executor has to sell assets to pay liabilities
➜ Heir:
- Person(s) whose benefit or portion must be determined. Thus, not clear from a simple reading of the will
- Benefit known as an “inheritance”
- So-called ‘Collation’ of benefits only apply to certain heirs
Executor
The person charged with the Administration of the deceased estate after the
death of a deceased (whether intestate or testate)
➜ Normally nominated by the testator in his will
➜ If not, the Master appoints someone
➜Entitled to 3,5% of the gross value of the estate as a fee
Delatio
When the estate falls open
