PVL3704: LAW OF SUCCESSION REAL QUESTIONS + DETAILED ANSWERS
- LATEST VERSION - TOP RATED
Q1. What is the law of succession?
Answer: The law of succession is the body of law that governs the devolution
of a deceased person's estate to their heirs and legatees, either through a
valid will (testate succession) or by operation of law (intestate succession).
Q2. What is the difference between testate and intestate succession?
Answer: Testate succession occurs when a person dies leaving a valid will
that disposes of their estate. Intestate succession occurs when a person dies
without a valid will, or when a will fails to dispose of the entire estate, and the
estate then devolves according to the Intestate Succession Act 81 of 1987.
Q3. What legislation primarily governs testate succession in South Africa?
Answer: The Wills Act 7 of 1953 primarily governs the formal validity of wills
in South Africa, supplemented by common law principles and the
Administration of Estates Act 66 of 1965.
Q4. What legislation governs intestate succession in South Africa?
Answer: The Intestate Succession Act 81 of 1987 governs intestate
succession in South Africa, replacing the previous common law rules.
Q5. What is an estate?
Answer: An estate consists of all the property, rights, and obligations of a
deceased person at the time of death. It includes both assets (such as
movable and immovable property, money, and claims) and liabilities (such as
debts).
Q6. Who is a testator?
Answer: A testator (masculine) or testatrix (feminine) is a person who makes
a valid will. They must have testamentary capacity and comply with the
formalities prescribed by the Wills Act.
Q7. What is the meaning of 'de cuius'?
Answer: De cuius (short for is de cuius hereditate agitur) refers to the
deceased person whose estate is being distributed — the person whose
succession is being determined.
Q8. What is a beneficiary?
, Answer: A beneficiary is any person who receives a benefit from a deceased
estate, whether as an heir (inheriting the residue) or as a legatee (receiving a
specific bequest under a will).
Q9. What is the difference between an heir and a legatee?
Answer: An heir inherits the residue of the estate after all debts and specific
bequests have been satisfied. A legatee receives a specific bequest (a
particular asset or sum of money) under a will.
Q10. What is a legacy?
Answer: A legacy is a specific bequest of property (movable or immovable)
made to a legatee under a will, as opposed to a share of the residue of the
estate.
TOPIC 2: TESTAMENTARY CAPACITY
Q11. What is testamentary capacity?
Answer: Testamentary capacity is the legal ability to make a valid will. In
South Africa, any person who is 16 years or older and is not mentally
incapable may make a will (s 4 of the Wills Act 7 of 1953).
Q12. What is the minimum age requirement to make a will in South Africa?
Answer: A person must be at least 16 years of age to make a valid will in
South Africa, in terms of section 4 of the Wills Act 7 of 1953.
Q13. Can a married person under 16 make a will?
Answer: Section 4 of the Wills Act states that any person 16 or older who is
not mentally incapable may make a will. There is no exception for persons
under 16 even if married; they lack testamentary capacity.
Q14. What does 'mentally incapable' mean in the context of testamentary
capacity?
Answer: A person is mentally incapable if, at the time of executing the will,
they lack the ability to understand the nature and effect of making a will, the
extent of their property, or the claims of persons who might reasonably expect
to benefit from their estate.
Q15. What is the testamentary capacity test applied by South African
courts?
Answer: The courts apply a subjective test: the testator must have sufficient
mental capacity at the exact time of signing the will to understand: (1) the
nature of the act of making a will; (2) the extent of their property; and (3) the
claims of potential beneficiaries.
,Q16. Does a person under legal disability (e.g., declared insolvent) lose
testamentary capacity?
Answer: No. Legal disability (such as insolvency, minority, or being under
curatorship) does not automatically deprive a person of testamentary capacity.
Testamentary capacity depends on mental capacity at the time of executing
the will.
Q17. Can a person suffering from a mental illness make a valid will?
Answer: Yes, if they make the will during a lucid interval — a period of mental
clarity. The burden of proving the existence of a lucid interval rests on the
person seeking to uphold the will.
Q18. Who bears the burden of proof regarding testamentary capacity?
Answer: The person challenging the will bears the burden of proving lack of
testamentary capacity. Once lack of capacity is prima facie established, the
burden shifts to the proponent of the will to prove capacity existed at the time
of execution.
Q19. Can undue influence vitiate a will?
Answer: Yes. A will or portion thereof is invalid if the testator was subjected to
undue influence that overcame their free will and substituted the will of
another for their own at the time of making the will.
Q20. What is the difference between influence and undue influence?
Answer: Influence is lawful persuasion that does not destroy free will (e.g.,
advice or requests). Undue influence involves coercion, fraud, or pressure so
overwhelming that the testator's independent judgment is destroyed and the
disposition does not truly reflect their wishes.
TOPIC 3: FORMAL VALIDITY OF WILLS
Q21. What are the formal requirements for a valid will under the Wills Act?
Answer: Under s 2(1)(a) of the Wills Act 7 of 1953: (1) the will must be in
writing; (2) signed by the testator at the end of each page; (3) signed by two or
more competent witnesses in the presence of the testator and each other; and
(4) each page must be signed by both witnesses.
Q22. Must a will be in writing?
Answer: Yes. Section 2(1)(a)(i) of the Wills Act requires that a will be in
writing. It may be handwritten, typed, or printed, but must be in a tangible
written form.
Q23. Where must the testator sign a will?
, Answer: The testator must sign the will at the end of the will and at the bottom
of each preceding page (s 2(1)(a)(ii) of the Wills Act). A signature at the end is
mandatory; a mark or thumbprint may be used if the testator cannot write.
Q24. What qualifies as a 'signature' under the Wills Act?
Answer: A signature includes the testator's name, initials, or any mark
intended as a signature. A thumbprint or other mark placed with the intention
of signing is also accepted, but in such cases a commissioner of oaths must
certify the will.
Q25. How many witnesses are required for a valid will?
Answer: At least two competent witnesses are required (s 2(1)(a)(iii) of the
Wills Act). They must sign the will in the presence of the testator and in the
presence of each other.
Q26. Who is a competent witness for a will?
Answer: A competent witness is any person who is 14 years or older and who
is not blind at the time of witnessing the will (s 1 of the Wills Act). Beneficiaries
and their spouses are competent as witnesses, but may be disinherited.
Q27. What is the effect of a beneficiary signing as a witness?
Answer: Section 4A(1) of the Wills Act provides that if a witness or their
spouse/partner is a beneficiary, the beneficiary forfeits their benefit under the
will, but the will itself remains valid. The benefit passes as if that beneficiary
had predeceased the testator.
Q28. Does a blind person qualify as a competent witness?
Answer: No. A blind person is excluded from being a competent witness
under s 1 of the Wills Act because they cannot verify the visual act of signing.
Q29. What is the 'condonation' provision in the Wills Act?
Answer: Section 2(3) of the Wills Act empowers a High Court to condone a
will that does not comply with the formal requirements if the court is satisfied
that the document was drafted by the deceased and was intended to be their
will.
Q30. What must be proven for a court to condone a defective will?
Answer: The court must be satisfied: (1) the document existed; (2) the
deceased drafted or caused it to be drafted; and (3) the deceased intended
the document (or a portion of it) to be their will or an amendment thereof (s
2(3) of the Wills Act).
Q31. Can a will be made orally (nuncupative will)?
- LATEST VERSION - TOP RATED
Q1. What is the law of succession?
Answer: The law of succession is the body of law that governs the devolution
of a deceased person's estate to their heirs and legatees, either through a
valid will (testate succession) or by operation of law (intestate succession).
Q2. What is the difference between testate and intestate succession?
Answer: Testate succession occurs when a person dies leaving a valid will
that disposes of their estate. Intestate succession occurs when a person dies
without a valid will, or when a will fails to dispose of the entire estate, and the
estate then devolves according to the Intestate Succession Act 81 of 1987.
Q3. What legislation primarily governs testate succession in South Africa?
Answer: The Wills Act 7 of 1953 primarily governs the formal validity of wills
in South Africa, supplemented by common law principles and the
Administration of Estates Act 66 of 1965.
Q4. What legislation governs intestate succession in South Africa?
Answer: The Intestate Succession Act 81 of 1987 governs intestate
succession in South Africa, replacing the previous common law rules.
Q5. What is an estate?
Answer: An estate consists of all the property, rights, and obligations of a
deceased person at the time of death. It includes both assets (such as
movable and immovable property, money, and claims) and liabilities (such as
debts).
Q6. Who is a testator?
Answer: A testator (masculine) or testatrix (feminine) is a person who makes
a valid will. They must have testamentary capacity and comply with the
formalities prescribed by the Wills Act.
Q7. What is the meaning of 'de cuius'?
Answer: De cuius (short for is de cuius hereditate agitur) refers to the
deceased person whose estate is being distributed — the person whose
succession is being determined.
Q8. What is a beneficiary?
, Answer: A beneficiary is any person who receives a benefit from a deceased
estate, whether as an heir (inheriting the residue) or as a legatee (receiving a
specific bequest under a will).
Q9. What is the difference between an heir and a legatee?
Answer: An heir inherits the residue of the estate after all debts and specific
bequests have been satisfied. A legatee receives a specific bequest (a
particular asset or sum of money) under a will.
Q10. What is a legacy?
Answer: A legacy is a specific bequest of property (movable or immovable)
made to a legatee under a will, as opposed to a share of the residue of the
estate.
TOPIC 2: TESTAMENTARY CAPACITY
Q11. What is testamentary capacity?
Answer: Testamentary capacity is the legal ability to make a valid will. In
South Africa, any person who is 16 years or older and is not mentally
incapable may make a will (s 4 of the Wills Act 7 of 1953).
Q12. What is the minimum age requirement to make a will in South Africa?
Answer: A person must be at least 16 years of age to make a valid will in
South Africa, in terms of section 4 of the Wills Act 7 of 1953.
Q13. Can a married person under 16 make a will?
Answer: Section 4 of the Wills Act states that any person 16 or older who is
not mentally incapable may make a will. There is no exception for persons
under 16 even if married; they lack testamentary capacity.
Q14. What does 'mentally incapable' mean in the context of testamentary
capacity?
Answer: A person is mentally incapable if, at the time of executing the will,
they lack the ability to understand the nature and effect of making a will, the
extent of their property, or the claims of persons who might reasonably expect
to benefit from their estate.
Q15. What is the testamentary capacity test applied by South African
courts?
Answer: The courts apply a subjective test: the testator must have sufficient
mental capacity at the exact time of signing the will to understand: (1) the
nature of the act of making a will; (2) the extent of their property; and (3) the
claims of potential beneficiaries.
,Q16. Does a person under legal disability (e.g., declared insolvent) lose
testamentary capacity?
Answer: No. Legal disability (such as insolvency, minority, or being under
curatorship) does not automatically deprive a person of testamentary capacity.
Testamentary capacity depends on mental capacity at the time of executing
the will.
Q17. Can a person suffering from a mental illness make a valid will?
Answer: Yes, if they make the will during a lucid interval — a period of mental
clarity. The burden of proving the existence of a lucid interval rests on the
person seeking to uphold the will.
Q18. Who bears the burden of proof regarding testamentary capacity?
Answer: The person challenging the will bears the burden of proving lack of
testamentary capacity. Once lack of capacity is prima facie established, the
burden shifts to the proponent of the will to prove capacity existed at the time
of execution.
Q19. Can undue influence vitiate a will?
Answer: Yes. A will or portion thereof is invalid if the testator was subjected to
undue influence that overcame their free will and substituted the will of
another for their own at the time of making the will.
Q20. What is the difference between influence and undue influence?
Answer: Influence is lawful persuasion that does not destroy free will (e.g.,
advice or requests). Undue influence involves coercion, fraud, or pressure so
overwhelming that the testator's independent judgment is destroyed and the
disposition does not truly reflect their wishes.
TOPIC 3: FORMAL VALIDITY OF WILLS
Q21. What are the formal requirements for a valid will under the Wills Act?
Answer: Under s 2(1)(a) of the Wills Act 7 of 1953: (1) the will must be in
writing; (2) signed by the testator at the end of each page; (3) signed by two or
more competent witnesses in the presence of the testator and each other; and
(4) each page must be signed by both witnesses.
Q22. Must a will be in writing?
Answer: Yes. Section 2(1)(a)(i) of the Wills Act requires that a will be in
writing. It may be handwritten, typed, or printed, but must be in a tangible
written form.
Q23. Where must the testator sign a will?
, Answer: The testator must sign the will at the end of the will and at the bottom
of each preceding page (s 2(1)(a)(ii) of the Wills Act). A signature at the end is
mandatory; a mark or thumbprint may be used if the testator cannot write.
Q24. What qualifies as a 'signature' under the Wills Act?
Answer: A signature includes the testator's name, initials, or any mark
intended as a signature. A thumbprint or other mark placed with the intention
of signing is also accepted, but in such cases a commissioner of oaths must
certify the will.
Q25. How many witnesses are required for a valid will?
Answer: At least two competent witnesses are required (s 2(1)(a)(iii) of the
Wills Act). They must sign the will in the presence of the testator and in the
presence of each other.
Q26. Who is a competent witness for a will?
Answer: A competent witness is any person who is 14 years or older and who
is not blind at the time of witnessing the will (s 1 of the Wills Act). Beneficiaries
and their spouses are competent as witnesses, but may be disinherited.
Q27. What is the effect of a beneficiary signing as a witness?
Answer: Section 4A(1) of the Wills Act provides that if a witness or their
spouse/partner is a beneficiary, the beneficiary forfeits their benefit under the
will, but the will itself remains valid. The benefit passes as if that beneficiary
had predeceased the testator.
Q28. Does a blind person qualify as a competent witness?
Answer: No. A blind person is excluded from being a competent witness
under s 1 of the Wills Act because they cannot verify the visual act of signing.
Q29. What is the 'condonation' provision in the Wills Act?
Answer: Section 2(3) of the Wills Act empowers a High Court to condone a
will that does not comply with the formal requirements if the court is satisfied
that the document was drafted by the deceased and was intended to be their
will.
Q30. What must be proven for a court to condone a defective will?
Answer: The court must be satisfied: (1) the document existed; (2) the
deceased drafted or caused it to be drafted; and (3) the deceased intended
the document (or a portion of it) to be their will or an amendment thereof (s
2(3) of the Wills Act).
Q31. Can a will be made orally (nuncupative will)?
