Law of Succession Lecture Notes & Summaries

Succession Law

Lecture 1 – 12/02/20

 What is it? Legal rules that regulate the devolution of a deceased
person’s estate upon one or more persons.
 Rules:
o Who is entitled to succeed the deceased?
o Extent of benefits
 Administrative process of deceased estates
 Is it sterile and formalistic?
o Impacts extended family, those who choose not to marry,
same-sex couples, extramarital children, adopted children,
polygamous marriage spouses etc.
o Need to look at this law in a broader context, as it affects
multiple spheres of society.
 Succession takes place in 3 ways:
o Testate succession
o Intestate succession
o Contract/agreement – successio ex contractu/ pactum
sucessorium

Lecture 2

 Deceased Estate
o Not a legal person
 Individual, company or entity
 Legal rights
 Can sue/besued
 Own property
 Enter into contracts
o Cannot sue or be sued in its own name
o Executor must sue in his representative capacity
o Who owns the property between the death of the deceased
and transfer of ownership?
 Estate cannot own property = not a legal entity
 Does the heir own the property?
 Problematic = Universal Succession
o Does not exist in SA law = makes any heir
responsible for liabilities of the estate

, (not fair for children to bear your
burdens)
 BUT: Heir does have VESTED PERSONAL RIGHT
o Against executor to transfer ownership =
only then does the personal right
become a REAL RIGHT
o HEIR DOES NOT OWN BEFORE TRANSFER
 Executor will own the assets in his official
capacity during the admin period = LIMITED
OWNERSHIP (S102 of Deeds Reg. Act)
o BUT: SA law is not set on this =

Greenberg v Estate Greenberg

Facts: Husband and wife had joint will; husband dies; 3 sons and wife
surviving; property to go to sons and wife to have usufruct until her
death; sons died (had two descendants) = WHO OWNS THE PROPERTY?

Court held: Vesting took place upon testator’s death, subject to a
usufractory interests in favour of the widow = Beneficiary does not
obtain ownership of the property immediately on death of testator, but
obtains a vested right to claim delivery of the property from the
executor at some future date.

THEREFORE: Executor owns in official capacity during admin; heir
obtains vested personal right on death of testator.
- After estate has been administered (AND IF ASSETS > LIABILITIES)
= Executor will transfer assets (earliest moment of ownership)

 The Executor
o Admin. Estate Act
o Types: 1) Executor Testamentary (nominated in a valid will,
Master will appoint); 2) Executor Dative (testator did not
nominate, so Master will choose)
o Estate < R250 000 = Executor not chosen – somebody else
to dispense (S18(3) of AEA)
o Fiduciary position: Must act in good faith
 Will pay security fee if they act contrary
o Power of Assumption: Allows for executor to appoint co-
executor

, o If the wrong distribution has been made?
 Section 50 with S23(5) of AEA = Can recover
 If they refuse to return = Executor pays security
fee
o If executor refuses to institute proceedings to recover
estate debts or to make claims:
 Option 1: Remove executor from office (Cumes v
Estate Cumes)
 Application to HC
 Option 2: Beneficiary can sue, but executor can be
cited as the nominal defendant
 Du Toit v Vermeulen: Outlines general rule
 Gross v Pentz: Look at general rule, and
distinguish between 1) representative action
(gen. rule must follow = executor goes to court
on behalf of estate) and 2) direction action
(when executor acting in bad faith,
beneficiaries can act in their own interest to
seek relief)
 Option 3: Executor can cede the right of action to the
beneficiary (Elizabeth Nursing Home v Cohen And
Other)
 Adiation
o Acceptance of a benefit from the estate
o No formalities req = executor will transfer benefit
 Inferred from beneficiary’s conduct
o BUT: adiation will be req. in writing when an obligation is
attached to the benefit
 Repudiation
o Rejection of a benefit or refusal to inherit
o Must be done in writing = no benefit
o Why? Personal reasons, onerous condition attached to
inheritance, reverse a massing (two/more testators mass
the whole/part of their estates)
o Effect:
 Varies according to provisions of the will
 Provision for substitutes to inherit = direct
substitution
 Doctrine of Election:
o Benefit holds some kind of obligation

, o Beneficiary has to elect/choose to accept the benefit
 Accept = accept obligation
 CANNOT ADIATE PARTIALLY
 Repudiate = receive nothing
o ONLY APPLIES IF A BURDEN HAS BEEN PLACED ON THE
BENEFICIARY
 Partial/conditional repudiation:
o Not allowed if heir is put to an election on account of a
condition and there is no contrary intention in the will
o Allowed if NO CONDITION and the will does not prohibit it
 Can an insolvent person repudiate an inheritance?
o Wessels v De Jager
 When an inheritance becomes due and owing to an
insolvent, he acquires competence to inherit, but not
a right.
 Beneficiary may repudiate an inheritance.
 This does not cause prejudice to creditors.
 If beneficiary does not expressly or impliedly
accepted inheritance = does not form part of his
estate.
 Insolvent has limited capacity = retains right to accept
or reject the inheritance.
 Right does not pass to insolvent’s trustee

Death

o Traditional approach: A person is dead when the heart stops
beating and the lungs stop working.
o Modern medical approach: A person is dead when there is no
longer brain activity. (USED NOW)
o S v Williams (1986): When a person is kept alive artificially by
means of respirator, its eventual disconnection is not in legal
terms the act which causes death.
o Avoided question of whether or not brain death, in line with
medical science, should amount to legal death.




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