Study Unit 2.2: Rules of the Law of Intestate Succession

Question 1

Discuss the concept “spouse” and “parent” and “descendant” in section 1, as amended and developed through case law as a result of the effect of Constitutional principles, and the Reform of Customary Law of Succession Act 11 of 2009

Answer 1

Bwanya case

➜Section 1(1)of theIntestate Succession Actis unconstitutional and invalid insofar as it excludes the surviving life partner in a permanent opposite-sex life partnership from inheriting in terms of this Act;

➜ the omission insection 1(1)of theIntestate Succession Act of the words “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support,after the words “spouse”, wherever it appears in the section, is unconstitutional and invalid;

➜ theIntestate Succession Act isto be read as though the following words appear after the word spouse, wherever it appears in the section -”or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support.

Question 2

Rule 1

Answer 2

Section 1(1)(a) of the Intestate Succession Act

Deceased is survived by spouse(s), with no descendants

Question 3

Rule 2

Answer 3

Section 1(1)(b) of the Intestate Succession Act

Deceased is not survived by spouse, but by descendants

Section 1(7) of the Intestate Succession Act: renounced inheritance falls to descendants of the descendant of the deaceased

Question 4

Rule 3

Answer 4

Section 1(1)(c) of the Intestate Succession Act

Deceased is survived by spouse and descendants

➜In community of property
➜Out of community of property with accrual due to surviving spouse
➜Out of community of property with accrual due to deceased’s estate
➜Out of community of property without accrual

Question 5

Rule 4

Answer 5

Section 1(1)(d)(i) of the Intestate Succession Act

Deceased is not survived by spouse or descendant but by parents

Question 6

Rule 5

Answer 6

Section 1(1)(d)(ii) of the Intestate Succession Act

Deceased is survived by one parent and descendant from the other parent

Question 7

Rule 6

Answer 7

Section 1(1)(e)(i)(aa-cc) of the Intestate Succession Act

Deceased is survived not by spouse or descendants or parents, but by the descendants of his/her parents

➜Half blood siblings: Section 1(1)(e)(i)(aa) of the Intestate Succession Act
➜Full blood siblings: Section 1(1)(e)(i)(bb) of the Intestate Succession Act
➜Half blood and Full blood siblings: Section 1(1)(e)(i)(cc) of the Intestate Succession Act

Question 8

Rule 7

Answer 8

Section 1(1)(e)(ii) of the Intestate Succession Act

Deceased is survived by descendants from one parent only

Question 9

Rule 8

Answer 9

Section 1(1)(f) of the Intestate Succession Act

Deceased is survived by further relations
-per capita

Question 10

Provide an overview of the effect of the Reform of Customary Law of Succession Act 11 / 2009 on Customary Law of Intestate Succession

Answer 10

Customary Law of Succession was abolished in the Bhe v Magistrate case