Tutorial Letter 201/2/2015 Law of Succession PVL2602 Semester 2 Department of Private Law This tutorial letter contains feedback on the assignments, important information about amendments to two acts and information about the examination

COMMMENTARY ON ASSIGNMENT 01: SEMESTER 02 This assignment covers chapters 1 to 6 of the textbook as well as the information in Tutorial Letter 101 and the prescribed cases. Question 1 Xander and Wanda were married out of community of property with inclusion of the accrual system. They had three adult sons, Ben, Charl and David. David was predeceased. Before his death, David had been married to Zola. David and Zola had a child, Elize. David also had a child Frank from a previous relationship with Petro. David and Petro had never been married. Zola had an adult child, Gavin, from a previous marriage. Xander dies intestate and the value of his estate amounts to R900 000. Xander's estate has to pay R100 000 accrual to Wanda. Calculate how Xander's estate is going to devolve, giving reasons for your calculations. (10) The statutory amount that is relevant in this answer, was increased from R125 000 to R250 000 recently (see par 3 below). We have accepted both amounts as correct for purposes of the assignment. There are therefore two solutions below: Solution 1: Statutory amount = R125 000 1. Xander (X)'s estate has to pay R100 000 to Wanda (W) in terms of matrimonial property law (accrual that she was entitled to). X's intestate estate available for distribution therefore amounts to R800 000 (R900 000 – R100 000 = R800 000). 2. X had a spouse and children - therefore section 1(1)(c) of the Intestate Succession Act 81 of 1987 applies in terms of which the spouse inherits either a child's share or R125 000 (the statutory amount) whichever is the greater and the children share the rest of the estate equally. 3. A child's share is calculated by dividing the value of the intestate estate by the number of Xander Wanda Ben Charl David (pedeceased) Frank Zola Elize Gavin4 children of the deceased 4. who have either survived him, 5. or have predeceased him but are survived by their descendants, 6. plus the number of surviving spouses (in this case only W). 7. To calculate the child's share we therefore count Ben (B), Charl (C) and David (D) (since D left children to represent him) plus W (B, C, D en W = 4), and divide R800 000 by 4. This means a child's share amounts to R200 000. 8. Since a child’s share of R200 000 is more than the statutory amount of R125 000, W inherits a child's share of R200 000. 9. After W inherits R200 000, R600 000 remains in X’s intestate estate to be divided equally amongst his children. X's children, B, C and D (represented by his children), inherit the residue in equal shares (R600 000 ÷ 3 = R200 000). 10. B and C each inherits R200 000 and E and F inherit D's share equally, each inheriting R100 000. 11. F may inherit even though he was born of unmarried parents, because in terms of the Intestate Succession Act no distinction should be drawn between children of married or unmarried parents. 12. Gavin (G) may not inherit from X, because he is not a blood relation of D but a step-child. Solution 2: Statutory amount = R250 000. 1. Xander (X)'s estate has to pay R100 000 to Wanda (W) in terms of matrimonial property law (the accrual that she was entitled to). X's intestate estate available for distribution therefore amounts to R800 000 (R900 000 – R100 000 = R800 000). 2. X had a spouse and children - therefore section 1(1)(c) of the Intestate Succession Act 81 of 1987 applies in terms of which the spouse inherits either a child's share or R250 000 (the statutory amount) whichever is the greater and the children share the rest of the estate equally. 3. A child's share is calculated by dividing the value of the intestate estate by the number of children of the deceased 4. who have either survived him, 5. or have predeceased him but are survived by their descendants, 6. plus the number of surviving spouses (in this case only W). 7. To calculate the child's share we therefore count Ben (B), Charl (C) and David (D) (since D left children to represent him) plus W (B, C, D en W = 4), and divide R800 000 by 4. This means a child's share amounts to R200 000. 8. Since a child’s share of R200 000 is less than the statutory amount of R250 000, W inherits the amount of R250 000. 9. After X inherits R250 000, R550 000 remains in X’s intestate estate to be divided equally amongst his children. X's children, B, C and D (represented by his children), inherit the residue in equal shares (R550 000 ÷ 3 = R183 333). 10. B and C each inherit R183 333 and E and F inherit D's share equally, each inheriting R91 666. 11. F may inherit even though he was born of unmarried parents, because in terms of the PVL2602/201 5 Intestate Succession Act no difference should be made between children born of married or unmarried parents. 12. Gavin (G) may not inherit from X, because he is not a blood relation of D but a step-child. Question 2 Tom committed suicide in 2014. He left a letter in which he wrote that he revoked all previous wills and left all his possessions to his two children from his first marriage, Susan and Dennis. This letter was only signed with Tom's signature. It appears that he had executed a valid will two years previously in which he had left all his possessions to his second wife and nothing to his children. Answer questions (a) and (b) on this set of facts. (a) Is the letter that Tom left behind a valid will? Give a reason for your answer. (2) The will is not a valid will (1) because it was not signed by two competent witnesses. (1) (b) Susan and Dennis approach you for advice. They want to know if there is any way that they can inherit. Give a brief discussion of the problem with reference only to most recent and most authoritative case law. (Discuss the current legal position without discussing the previous split in opinion that existed.) (13) 1. Susan and Dennis will have to approach the Court for an order in terms of section 2(3) of the Wills Act 7 of 1953. 2. Section 2(3) gives the High Court the power to order the Master to accept a document 3. which does not comply with the execution or amendment formalities, as a valid will 4. if it is satisfied that the testator intended the defectively executed document to be his or her will or an amendment to it. 5. This power of the Court is often referred to as the power of condonation and section 2(3) is often called the "rescue provision". 6. If the requirements of section 2(3) are satisfied, the Court makes an order directing the Master to accept the will or amendment as if it were validly executed. The provisions of section 2(3) are peremptory. In other words, if the requirements of the section are satisfied by proof on a balance of probabilities, then the Court has no discretion but must make an order directing the Master to accept the document as a valid will. 7. Meaning of “drafted or executed”: In Bekker v Naude 2003 (5) SA 173 (SCA), 8. the Supreme Court of Appeal held that a narrow interpretation should be given to these words in terms of which the testator should have personally drafted the document. This aspect is not an issue in our set of facts as it is clear that the testator attempted to execute the document by signing it