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Succession Notes - 2015
1
Definitions
Law of Succession A branch of private law, it comprises of those legal
rules or norms which regulate the devolution of a
deceased person’s estate
Testate occurs when succession is regulated by a valid will in
which the testator provides how succession to his or
her estate is to take place
Intestate Your text
When the testator here 1leaving a will at all or a
dies without
valid will
testamentary a document which defines any one of the three
writing essential elements of a bequest: (Ex Parte Davies)
(1) the property bequeathed
(2) the extent of the interest bequeathed
(3) the beneficiary
Ademption takes place if a testator voluntarily alienates the object
of a legacy in his lifetime, ie the legacy lapses
Adiation acceptance of a benefit
Repudiation refusal to accept a benefit
Amendment “deletion, addition, alteration or interineation”
Deletion a deletion, cancellation or obliteration in whatever
manner effected, excluding a deletion, cancellation or
obliteration that contemplates the revocation of the
entire will
Animus revocandi the intention to revoke a will
Armchair evidence the evidence which the court uses to place itself in the
position in which the testator was at the time of the
making of the will by paying attention to all the
relevant facts and circumstances which were known to
the testator
extrinsic evidence evidence outside the document itself, in other words
evidence of facts which do not appear from the
document itself
Ascendants ancestors of the deceased, ie mother, grandfather
Descendants lineal descendants of the deceased
bequest price when a legacy is bequeathed subject to the beneficiary
paying a stipulated price to the estate or a third
person
collation executor must, under certain circumstances, take
benefits given to certain heirs by the deceased during
his lifetime into account when distributing the estate
among certain beneficiaries
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Succession Notes - 2015
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child's share calculated by dividing the value of the intestate estate
by the number of children of the deceased who have
either survived him or have
predeceased him but are survived by their
descendants, plus the number of spouses
cloven/cleaving where the estate rises to the deceased's parents and is
split (``cloven'') into two equal shares
collaterals persons related to the deceased through at least one
common ancestor or ascendant, for example brothers,
sisters, cousins
parental every group of parents and their descendants
constitute a parental
per capita inheritance in equal shares according to ones degree
in consanguinity. (per head)
representation when an heir in the direct line of descendants replaces
his ancestor as the heir
stirps every descendant of the deceased who survives the
deceased and/or a predeceased descendant of the
deceased who leaves living descendants forms a stirps
substitution takes place when a testator appoints a beneficiary to
inherit a benefit and at the same time appoints
another beneficiary to take the place of the first-
mentioned beneficiary. Substitution may take place
either:
1. In the alternative (direct substitution) {S2C} or
2. one beneficiary after another (fideicommissary
substitution).
competent any person over the age of 14 years who is competent
witness to give evidence in a court of law
testamentary capacity to make a will. Every person of the age of
capacity sixteen years or more may make a will unless at the
time of making the will he is mentally incapable of
appreciating the nature and effect of his act
Attestation clause a clause that appears at the end of a will in which it is
declared that all the parties were present and signed
in each other's presence (not compulsory)
Estate all assets and liabilities at the time of the testators
death.
The beneficiaries will only inherit the testators assets
and not her liabilities = different from Roman law.
Beneficiaries The parties upon whom the assets in a deceased
person's estate devolve. Beneficiaries may be either
heirs or legatees.
A legatee inherits a legacy which is a specific asset (for example
a house) or a specific amount of money (for example
R10 000).
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An heir inherits the whole or part of the estate or the residue
of the estate.
Residue of the What remains after the payment of funeral expenses,
estate administration costs, tax, deceased’s debts and the
legatees
Juristic Act an act which is intended to create or alter rights and
obligations; an act to which the law attaches at least
some of the consequences envisaged by the acting
party or parties
multilateral a juristic act which is performed through the
juristic act cooperation of two or more persons. E.g. contract
unilateral juristic a juristic act performed by the activity of only one
act person. E.g. donation
executor the person who is charged with the administration of
deceased estate (wind up the estate)
rectification takes place when a court adds, deletes or changes
something in a will because the testator had made a
mistake when making the will and the will does not
reflect his intention correctly
freedom of the freedom of a person to execute a valid will in order
testation to govern the transmission and use of assets, and to
govern the activities and lives of others after his death
prelegacy a special bequest which, under testamentary
instruction, enjoys preference over all other bequests
joint will where two or more testators have set out their
respective wills in the same document
mutual will where two or more testators have conferred benefits on
each other in the same will
dies cedit the time when a beneficiary gets a vested right to
“the day will claim delivery of the bequeathed benefit
come” unconditionally (whether or not the exercise of
this right is delayed until some future date which is
certain to arrive). The moment in time when the
beneficiary acquires a vested right.
dies venit the time when the beneficiary's right to claim delivery
“the day has of the bequeathed benefit becomes enforceable. Dies
come” venit is the time when a beneficiary may enjoy the
property which he or she has inherited or the day
when delivery of the benefit has to take place.
power of the power to appoint certain beneficiaries as heirs or
appointment legatees given to someone else by the testator
unconditional a bequest in which the testator leaves property to the
(absolute) beneficiary without any conditions attached
bequest
conditional a bequest which depends on a future event which is
bequest uncertain, in the sense that it may or may not occur
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4
time clause a bequest that is subject to an event that will certainly
happen in the future, although it may be certain or
uncertain when it will arrive.
suspensive the beneficiary does not get a vested finally established
condition right to the benefit unless and until a particular
uncertain future event takes place.
suspensive time where the beneficiary will receive the benefit only at a
clause certain future time.
terminative The bequest is made to terminate if a particular
(resolutive) uncertain future event of affairs takes place.
condition
terminative time the beneficiaries' rights are terminated when a certain
clause time arrives.
modus a qualification added to a gift or testamentary
disposition, whereby the person benefitted is required
to devote the property he or she receives, or the value
thereof, in whole or in part to a specific purpose
direct occurs where a testator names a substitute or even a
substitution whole series of substitutes who are to inherit if the
instituted heir or legatee does not inherit. Direct
substitution is substitution in the alternative.
fideicommissary occurs where a testator directs in his or her will that,
substitution after his or her death, a series of successors (heirs or
legatees) are to inherit his or her whole estate or part
of it, or specific assets, so that the bequest passes
from one successor to another. The different
successors thus inherit the same benefit one after the
other. The first successor is called the ``fiduciary'', and
every beneficiary after is called a ``fideicommissary''.
fideicommissum where property is left to a beneficiary, subject to the
residui condition that as much of it as may be left at the time
of the beneficiary's death is to devolve upon another
person
si sine liberis a clause that stipulates that if a beneficiary dies
decesserit without children (si sine liberis decesserit) after the
clause testator, the property must pass to a third party
usufruct a personal servitude that occurs where a testator
bequeaths ownership of a thing to one person, and the
right to use the thing, to take its fruits and to enjoy
the thing, to someone else (the usufructuary).
Treuhand trust, not for oneself but for another or for a particular
impersonal purpose
Critical Law Studies cc ©
Succession Notes - 2015
1
Definitions
Law of Succession A branch of private law, it comprises of those legal
rules or norms which regulate the devolution of a
deceased person’s estate
Testate occurs when succession is regulated by a valid will in
which the testator provides how succession to his or
her estate is to take place
Intestate Your text
When the testator here 1leaving a will at all or a
dies without
valid will
testamentary a document which defines any one of the three
writing essential elements of a bequest: (Ex Parte Davies)
(1) the property bequeathed
(2) the extent of the interest bequeathed
(3) the beneficiary
Ademption takes place if a testator voluntarily alienates the object
of a legacy in his lifetime, ie the legacy lapses
Adiation acceptance of a benefit
Repudiation refusal to accept a benefit
Amendment “deletion, addition, alteration or interineation”
Deletion a deletion, cancellation or obliteration in whatever
manner effected, excluding a deletion, cancellation or
obliteration that contemplates the revocation of the
entire will
Animus revocandi the intention to revoke a will
Armchair evidence the evidence which the court uses to place itself in the
position in which the testator was at the time of the
making of the will by paying attention to all the
relevant facts and circumstances which were known to
the testator
extrinsic evidence evidence outside the document itself, in other words
evidence of facts which do not appear from the
document itself
Ascendants ancestors of the deceased, ie mother, grandfather
Descendants lineal descendants of the deceased
bequest price when a legacy is bequeathed subject to the beneficiary
paying a stipulated price to the estate or a third
person
collation executor must, under certain circumstances, take
benefits given to certain heirs by the deceased during
his lifetime into account when distributing the estate
among certain beneficiaries
Critical Law Studies cc ©
, CLS cc ©
Succession Notes - 2015
2
child's share calculated by dividing the value of the intestate estate
by the number of children of the deceased who have
either survived him or have
predeceased him but are survived by their
descendants, plus the number of spouses
cloven/cleaving where the estate rises to the deceased's parents and is
split (``cloven'') into two equal shares
collaterals persons related to the deceased through at least one
common ancestor or ascendant, for example brothers,
sisters, cousins
parental every group of parents and their descendants
constitute a parental
per capita inheritance in equal shares according to ones degree
in consanguinity. (per head)
representation when an heir in the direct line of descendants replaces
his ancestor as the heir
stirps every descendant of the deceased who survives the
deceased and/or a predeceased descendant of the
deceased who leaves living descendants forms a stirps
substitution takes place when a testator appoints a beneficiary to
inherit a benefit and at the same time appoints
another beneficiary to take the place of the first-
mentioned beneficiary. Substitution may take place
either:
1. In the alternative (direct substitution) {S2C} or
2. one beneficiary after another (fideicommissary
substitution).
competent any person over the age of 14 years who is competent
witness to give evidence in a court of law
testamentary capacity to make a will. Every person of the age of
capacity sixteen years or more may make a will unless at the
time of making the will he is mentally incapable of
appreciating the nature and effect of his act
Attestation clause a clause that appears at the end of a will in which it is
declared that all the parties were present and signed
in each other's presence (not compulsory)
Estate all assets and liabilities at the time of the testators
death.
The beneficiaries will only inherit the testators assets
and not her liabilities = different from Roman law.
Beneficiaries The parties upon whom the assets in a deceased
person's estate devolve. Beneficiaries may be either
heirs or legatees.
A legatee inherits a legacy which is a specific asset (for example
a house) or a specific amount of money (for example
R10 000).
Critical Law Studies cc ©
, CLS cc ©
Succession Notes - 2015
3
An heir inherits the whole or part of the estate or the residue
of the estate.
Residue of the What remains after the payment of funeral expenses,
estate administration costs, tax, deceased’s debts and the
legatees
Juristic Act an act which is intended to create or alter rights and
obligations; an act to which the law attaches at least
some of the consequences envisaged by the acting
party or parties
multilateral a juristic act which is performed through the
juristic act cooperation of two or more persons. E.g. contract
unilateral juristic a juristic act performed by the activity of only one
act person. E.g. donation
executor the person who is charged with the administration of
deceased estate (wind up the estate)
rectification takes place when a court adds, deletes or changes
something in a will because the testator had made a
mistake when making the will and the will does not
reflect his intention correctly
freedom of the freedom of a person to execute a valid will in order
testation to govern the transmission and use of assets, and to
govern the activities and lives of others after his death
prelegacy a special bequest which, under testamentary
instruction, enjoys preference over all other bequests
joint will where two or more testators have set out their
respective wills in the same document
mutual will where two or more testators have conferred benefits on
each other in the same will
dies cedit the time when a beneficiary gets a vested right to
“the day will claim delivery of the bequeathed benefit
come” unconditionally (whether or not the exercise of
this right is delayed until some future date which is
certain to arrive). The moment in time when the
beneficiary acquires a vested right.
dies venit the time when the beneficiary's right to claim delivery
“the day has of the bequeathed benefit becomes enforceable. Dies
come” venit is the time when a beneficiary may enjoy the
property which he or she has inherited or the day
when delivery of the benefit has to take place.
power of the power to appoint certain beneficiaries as heirs or
appointment legatees given to someone else by the testator
unconditional a bequest in which the testator leaves property to the
(absolute) beneficiary without any conditions attached
bequest
conditional a bequest which depends on a future event which is
bequest uncertain, in the sense that it may or may not occur
Critical Law Studies cc ©
, CLS cc ©
Succession Notes - 2015
4
time clause a bequest that is subject to an event that will certainly
happen in the future, although it may be certain or
uncertain when it will arrive.
suspensive the beneficiary does not get a vested finally established
condition right to the benefit unless and until a particular
uncertain future event takes place.
suspensive time where the beneficiary will receive the benefit only at a
clause certain future time.
terminative The bequest is made to terminate if a particular
(resolutive) uncertain future event of affairs takes place.
condition
terminative time the beneficiaries' rights are terminated when a certain
clause time arrives.
modus a qualification added to a gift or testamentary
disposition, whereby the person benefitted is required
to devote the property he or she receives, or the value
thereof, in whole or in part to a specific purpose
direct occurs where a testator names a substitute or even a
substitution whole series of substitutes who are to inherit if the
instituted heir or legatee does not inherit. Direct
substitution is substitution in the alternative.
fideicommissary occurs where a testator directs in his or her will that,
substitution after his or her death, a series of successors (heirs or
legatees) are to inherit his or her whole estate or part
of it, or specific assets, so that the bequest passes
from one successor to another. The different
successors thus inherit the same benefit one after the
other. The first successor is called the ``fiduciary'', and
every beneficiary after is called a ``fideicommissary''.
fideicommissum where property is left to a beneficiary, subject to the
residui condition that as much of it as may be left at the time
of the beneficiary's death is to devolve upon another
person
si sine liberis a clause that stipulates that if a beneficiary dies
decesserit without children (si sine liberis decesserit) after the
clause testator, the property must pass to a third party
usufruct a personal servitude that occurs where a testator
bequeaths ownership of a thing to one person, and the
right to use the thing, to take its fruits and to enjoy
the thing, to someone else (the usufructuary).
Treuhand trust, not for oneself but for another or for a particular
impersonal purpose
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