Summary PVL2602 LAW OF SUCCESSION NOTES.Latest

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 When the testator dies without leaving a will at all or a valid will testamentary writing a document which defines any one of the three 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 PVL2602 LAW OF SUCCESSION NOTES.Latest Critical Law Studies CC © Succession Notes – 2019 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 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 firstmentioned beneficiary. Substitution may take place either: 1. In the alternative (direct substitution) {S2C} or 2. one beneficiary after another (fideicommissary substitution). competent witness any person over the age of 14 years who is competent to give evidence in a court of law testamentary capacity capacity to make a will. Every person of the age of 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 © Succession Notes – 2019 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 3 An heir inherits the whole or part of the estate or the residue of the estate. Residue of the estate What remains after the payment of funeral expenses, 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 juristic act a juristic act which is performed through the cooperation of two or more persons. E.g. contract unilateral juristic act a juristic act performed by the activity of only one 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 testation the freedom of a person to execute a valid will in order 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 day will come” the time when a beneficiary gets a vested right to claim delivery of the bequeathed benefit 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 day has come” the time when the beneficiary's right to claim delivery of the bequeathed benefit becomes enforceable. Dies 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 appointment the power to appoint certain beneficiaries as heirs or legatees given to someone else by the testator unconditional (absolute) bequest a bequest in which the testator leaves property to the beneficiary without any conditions attached conditional bequest a bequest which depends on a future event which is uncertain, in the sense that it may or may not occur Critical Law Studies CC © Succession Notes – 2019 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 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 condition the beneficiary does not get a vested finally established right to the benefit unless and until a particular uncertain future event takes place. suspensive time clause where the beneficiary will receive the benefit only at a certain future time. terminative (resolutive) condition The bequest is made to terminate if a particular uncertain future event of affairs takes place. terminative time clause the beneficiaries' rights are terminated when a certain 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 substitution occurs where a testator names a substitute or even a 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 substitution occurs where a testator directs in his or her will that, 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 residui where property is left to a beneficiary, subject to the 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 decesserit clause a clause that stipulates that if a beneficiary dies without children (si sine liberis decesserit) after the 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