PVL2602_EXAM PREP

1 General introduction to the law of succession 1.1 General Terminology Executor: the person who administers the estate of a deceased. Law of succession: a branch of private law. The law of succession comprises those legal rules or norms which regulate the devolution of a deceased person’s estate upon one or more persons. Thus the law of succession is concerned with what happens to a deceased person’s estate after his death. The testator’s estate consists assets and the liabilities he had at the time of his death. Estate thus consists not only of assets but also of any debts that the deceased had incurred before his death. Testator’s beneficiaries inherit only the assets; his liabilities do not devolve. Liabilities form part of the estate. Residue of the estate: that part of the deceased’s estate which remains after the payment of funeral expenses, administration costs, tax, the deceased’s debts and the legacies. Repudiation: heir or legatee refuses to accept a benefit from a deceased’s estate (must repudiate expressly). Adiation: When a beneficiary accepts a benefit from a deceased’s estate (assumed). Legatee: inherits a legacy which is a specific asset or a specific amount of money Heir: inherits the residue of the estate. Inheritance: when the property which is left behind must go to an heir. Succession: the devolution of the deceased’s estate. Succession may take place in one of three ways, namely: 1. by virtue of a will (testamentary succession) 2. by virtue of the law (intestate succession) 3. by virtue of an ante nuptial contract 1.2 Death of the deceased 1.2.1 Moment of death Moment of death not certain in SA law: problem is whether death should be defined as the termination of both heart and brain activity, or whether brain death is sufficient. S v Williams indicates that brain death may be enough. 1.2.2 Presumption of death High Court may grant an order presuming the death of a person upon which his estate can be administered. Constitutes an exception to the rule that a testator must be dead before succession can take place. Cases: Re Beaglehole 1.2.3 Persons who die in the same disaster Commorientes: several people lose their lives in the same disaster. Rule: if it cannot be established beyond doubt who died first, no presumption of either simultaneous death or of survival exists. Thus courts will find that commorientes died simultaneously. Cases: Ex parte Graham, Ex Parte Chodos Greyling v Greyling. 1.2.4 Further exception: Massing Exception to the rule that a person must be deceased before succession can take place: When two testators, in a joint will, mass their separate estates, or part of their estates, and jointly make provision for the disposition of the massed estates as a single unit. The joint will disposes of the surviving testator’s assets, and this disposition comes into operation on the death of the first-dying testator although the surviving testator is still alive. 1.3 Wills, unilateral and multilateral juristic acts and donations Juristic act: an act which is intended to create or alter rights and / or obligations, and it is an act to which the law attaches at least some of the consequences envisaged by the acting party or parties. Unilateral juristic act (making of a will): p