PVL2602-Law of Succession Summary Notes.

Introduction to law of succession When a person dies he or she leaves behind not family/friends but more importantly for our purposes rights and duties that have to be finalized. The law of succession deals with the finalization of the debt and assets the deceased leaves behind. 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. • Deceased – is the person who has died and left behind an estate • Estate – a testator’s estate consist of both the assets and the liabilities he had at the time of his death. The estate therefore consists not only of assets but also of any debts that the deceased had incurred during his lifetime • Legatee – inherits a specific asset (legacy) • Residue of estate – refers to 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 may refuse to accept a benefit from a deceased estate Adiation – heir or legatee accepts benefits from a deceased estate. • Succession – may take place in one of 3 ways: 1. Testamentary succession - in accordance with a will which the testator regulates the succession. 2. Intestate succession – through the operation of the law of intestate succession, where the deceased did not leave a will – estate is intestate and is governed by the laws of intestate succession. 3. Pactum successorium – in terms of a contract or agreement – contractual succession -anc is the only contract in which a person may regulate succession to the assets in his or her estate. DEATH OF DECEASED Moment of death – succession can only take place if person is deceased. Presumption of death – onus is on person who asserts person is dead to furnish proof of same. RE: BEAGLEHOLE Persons who die in the same disaster – a beneficiary can inherit only if he/she survives the deceased. When people die in the same disaster and it is not possible to determine who died first, the court will find that they died simultaneously. EX PARTE GRAHAM PVL2602-Law of Succession Summary Notes. 2 WILLS, UNILATERAL AND MULTILATERAL JURISTIC ACTS AND DONATIONS: Juristic act – is 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 – for example making of a will is performed by the activity of only one person. It is only one person’s actions that establish a will and it is only this person’s intention that is contained in the will. Multilateral juristic act – such as the conclusion of a contract, it is a juristic act which is performed only through the cooperation of 2 or more persons – example donation If the will consists of more than one page, the testator must sign at the end of the wording on the last page, and he must further sign or acknowledge his signature on the preceding pages in the presence of the same two or more witnesses, who are present at the same time. In Bosch v Nel the court held expressly that it is not necessary for the testator to sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature. The testator may sign the page preceding the last page anywhere on the page. The witnesses must sign the will in each others presence and in the presence of the testator. The Act does not prescribe where they must sign, but this provision is normally interpreted to mean that the witnesses must sign the last page of the will anywhere on that page. They need not sign the preceding pages. 2 No. A witness need not know the content of a will or even that he is witnessing a will. He only needs to know that he is witnessing the testator's signature (Sterban v Dixon). 3 The Wills Act requires that the witnesses should sign the will. The Act does not prescribe where they must sign. Usually this provision is interpreted to mean that they should sign the last page of the will. Normally the witnesses will sign the will at the end of the last page, but in Oosthuizen v die Weesheer it was held that the will was valid although the witnesses had signed at the top of the last page. The witnesses need not sign all the preceding pages of the will. 3 4 The testator has to sign at the ``end'' of the will Ð that is, at the end of the wording/ body of the will. 5 No. In Bosch v Nel the court held expressly that it is not necessary for the testator to sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature. 6 A witness to a will must comply with the following three requirements: 1 He or she must be 14 years or older. 2 He or she must be competent to give evidence in a court of law. 3 He or she must be able to write. 7 An attestation clause is a clause that appears at the end of the will in which it is declared that all the parties are present and have signed in each other's presence. When drafting a will, it is common practice to insert an attestation clause, in which it is expressly stated that the will was signed by the testator in the presence of the witnesses and that the witnesses signed in the presence of one another and the testator. No attestation clause is required by law. An attestation clause has evidential value only, that is, it can be of value only in that it constitutes evidence that the required formalities have been complied with. CHAPTER 2 – INTESTATE SUCCESSION Regulated by intestate succession act 81 of 1987. The law of intestate succession identifies the heirs to a deceased estate when the deceased has failed to regulate the devolution of his or her estate by will or anc or where it is impossible to carry out the wishes of the deceased because the beneficiaries are unable to inherit, do not wish to inherit or are predeceased. It is possible for a person to die completely intestate or only partly intestate. Diagrams to represent lineage: page 11 • double horizontal line = married persons • horizontal level = same generation • single line descending from parent = children/descendents • dotted line = adoption • letter crossed out = predeceased