pvl2602-summaries-summary-law-of-succession.

LAW OF SUCCESSION STUDY UNIT 1 INTRODUCTION: • Forms part of Private Law • Comprises legal rules that determine what happens to a person’s estate after his death. • Rules of succession identify the persons entitled to succeed the deceased (the beneficiaries) and the extent of the benefits (inheritance / legacies) they are to receive. • Also includes the rights and duties of the beneficiaries & creditors may have over deceased estate. • Succession takes place in 3 ways: 1. Accordance with a valid will – testamentary succession or succession ex testament. 2. Through operation of the law of intestate succession in the absence of a valid will – succession ab intesto / succession legitima 3. Law of Suc also includes rules describing the administration process of deceased estates – Formal Rules. LAW OF SUCCESSION IN THE LEGAL SYSTEM: • Material Rules of law of Suc: - What becomes off a person’s estate after death; - What beneficiary will inherit; - Determine rights / duties that persons may have in deceased estate. • Formal rules: - Describes process by which deceased estate is liquidated, aka – administration of estate. SUCCESSION TERMINILORGY – NB Pg. 7 – 14 GROUND RULES FOR SUCCESSION Few ground rules that must be adhered to; 1. PERSON MUST HAVE DIED: • Common + Customary Law – prerequisite for succession, owner of estate must have died. • Cust Law: succession to status positions happens only once family head died. Estate Orpen v Estate Atkinson: • The Atkinsons, Mr + Mrs, massed their estate in a joint will and had only 1 child. • Mr Atkinsons will stipulated; Downloaded by Jade Mills () lOMoARcPSD| 2 o On his death, (died 1st), estate must be handed over to executor of the estate and they would act as trustees (thus trust formed on death). o Mrs Atkinson and daughter, Mrs Orpin, would receive income of trust in equal parts. o Aka – income beneficiaries o Should mom/daughter die, the other receives whole of trust. o Should daughter die, the trust (corpus) would go to her children in equal shares, subject to usufruct of Mrs Atkinson (should she still be alive). o If daughter has no children, daughter can designate person inherit will and 20% of corpus would go to that person (this case, the husband). o Daughter received “power of appointment” form parents’ will. • Daughter died 1st, then father, then spouse. • Legal question: whether the exercise of Mrs Orpen “power of appointment” in favour of Mr Orpen ito her fathers will was valid, and • Whether her spouse’s deceased estate had obtained vested rights with regard to the 20% trust capital bequeathed to him, regardless of the fact that she died before her father. • Court held: Mr Orpen’s estate had no right to the 20% trust capital. • Mrs Orpen obtained her right to power of appointment upon the death of her father only. EXCEPTIONS TO RULE: a) COURT PRONOUNCES A PRESUMPTION OF DEATH & MAKES AN ORDER FOR THE DIVISION OF THE ESTATE: • Onus is on the person who alleges he is dead. • Person has disappeared with no body: difficult to prove. • Only once court makes presumption of death order, can the person’s estate be administered. • Customary for court to order that the estate of the person presumed to be dead, should be distributed amongst his heirs, subject to the provision of security that the estate can be returned to him, should he reappear. • Factors court takes into account; - Length of time person has been missing - Age - Health - Status in society - Circumstances surrounding disappearance b) ESTATE MASSING: • Entire/part of estates of various testators are consolidated into a single economic unit for testamentary disposal. • Surviving testators estate dissolves upon death of the other testator.