PVL2602- LAW OF SUCESSION SUMMARY NOTES 2021.

PVL2602- LAW OF SUCESSION SUMMARY NOTES 2021. 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 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 2 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. 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 3  Ascendants – ancestors of the deceased – mother, father, grandparents. – straight downward line  Descendants – lineal descendant of the deceased – direct line below deceased  Adopted children – deemed descendants of adoptive parents and not of natural parents, except in the instance where the natural parent was also the adoptive parent.  Extramarital children – illegitimacy does not affect the capacity of blood relation to inherit (ab intestate) from blood relation.  Collaterals – persons related to the deceased through at least one common ancestor or ascendant – egg brother, sister cousins.  Full blood collaterals – related through both parents  Half blood collaterals – related through one parent – PAGE 15 OF STUDY GUIDE EG.  Succession per capita – by representation, heir inherit per capita when they inherit equal shares according to law of intestate succession on the ground of the degree of consanguinity in which they stand to the deceased. If there are more than one person related to the deceased in the same way they inherit an equal share – per capita  Stirps – every descendant of the deceased who survives the deceased and or a predeceased descendent of the deceased who leaves a living descendent forms a stirp/stirpes  Substitution ex lege – takes place were an heir inherits in the place of an heir who was supposed to inherit in the first place is unable to inherit or repudiates his benefit. Degrees of consanguinity: 1. father and son = first degree 2. grandfather and grandson = second degree 3. each generation = one degree Rules of intestate succession: 1. If a person dies intestate and is survived by a spouse ONLY such spouse inherits entire intestate estate. 2. if a person dies intestate and is survived by a descendent or descendents ONLY such descendent or descendents shall inherit entire intestate estate 3. If person dies leaving both a spouse and descendents the spouse shall inherit either a Childs share of the intestate of R250 000 (whichever is greater) and descendants will inherit the residue if any. – child’s share is 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 descendents plus one. 4. if a person dies without leaving a spouse or descendents but has both his parents – they will inherit intestate estate 5. If a person dies without leaving a spouse of decedents but only leave one parent and descendents of his deceased parent, surviving parent inherits half estate and other half is divided amongst descendants of his or her predeceased parent. If no descendents then the surviving parent takes entire estate. 6. if survived by only descendents of his mother who are related to him through her only as well as descendents of his deceased father related to the deceased through him only (i.e half brothers and half sisters) intestate estate is divided equally amongst them. Cloven/cleaving – mean that the estate rises to the deceased parents and is split into 2 equal shares. 7. if the deceased is survived only by descendents of one of his deceased parents who are related to him through such parent alone , such descendents inherit the intestate estate Marriage in community of property – Where married icop – they own joint estate. Each spouse has half share in estate. The surviving spouse will therefore take their half share and inherit a child’s share or R250 000 whichever one is greater. 4 Marriage out of cop – With accrual – principles of accrual will be applied to the intestate estate before it is divided. Amount of accrual is either deducted or added to the intestate estate before estate is divided Partial intestacy – where deceased dies partly testate and partly intestate – the amount which a surviving spouse takes in terms of the will is ignored in calculating the intestate amount to which the surviving spouse is entitled Person dies without leaving intestate heirs – a person may die intestate without leaving any person capable of inheriting from him ab intestate, executors now convert entire estate to money and pay proceeds into the guardian’s fund. IMPORTANT – STUDY GUIDE PAGE 29 TO 34 Q&A CHAPTER 3 – FORMS OF WILLS AND TESTAMENTARY FORMALITIES Testate or testamentary succession occurs when succession is regulated by a valid will in which the testator provides how succession to his estate is to take place. EX PARTE DAVIES – courts decided Testamentary writing is a document which defines any one of the 3 essential elements of a bequest: 1. the property bequeathed 2. the extent of the interest bequeathed , ownership , usufruct ,fideicommissum etc 3. the beneficiary Both will and codicils are therefore testamentary writings. FORMALITIES WHEN A TESTATOR SIGNS HIS WILL WITH HIS OWN SIGNATURE  One page will – signature of testator at the end is required with 2 or more competent witnesses present at the same time. Witnessing is witnessing not the document or contents but that the testator signature. A witness may not sign by making a mark.  More than one page – all pages to be signed by testator and 2 or more competent witnesses.  Competent witness – is any person over the age of 14 whom is competent to give evidence in court. Must be able to “sign” must be 14 years or older, must be able to write and competent to give evidence in court.  Attestation clause – is a clause that appears at the end of a will which is declared that all parties were present and signed will in each others presence.  Only a testator can sign will by making a “mark” – thumbprint or cross Formalities when testator makes a mark – commissioner of oath should be present 1. Certificate is to be attached when the testator sign with a mark of when another person signs on behalf of testator. 2. testator signing with a mark the will must comply with section 2(1)(a)(v) – commissioner of oath must append certificate to a will 3. Content of certificate – commissioner of oath certifies he has satisfied himself as to the identity of the testator, that the will so signed is the will of the testator. Certificate may be append anywhere to the will. PAGES 50 TO 53 Q&A The power of the court to order the master to accept a document as a valid will: The court can order the master to accept a will as being valid although it does not comply with all the formalities for the execution of a will, as long as the court is satisfied the document was drafted or executed by a person who has died in the meantime and intended the document to his or her will. 5 Section 2A: If a court is satisfied that a testator has –  made a written indication on his will or before his death caused such indicating to be made  performed any other act with regard it his will or before his death caused such act to be performed which is apparent from the face of the will or  Drafted another document or before his death caused such document to be drafted. LOST WILLS, FORGED WILL AND THE ONUS OF PROOF LOST WILLS – a lost will does not affect the fact that the testator left a valid will. Contents of the will may be proved by means of documentary or oral evidence Forged wills – it was held in Kunz v Swart that a will which is complete and regular on the face of it is presumed to be valid until the contrary is proved. The onus which can be of vital importance then rests with the party who maintains that the will is invalid. CHAPTER 4 – AMENDMENTS TO WILLS Amendment defined in the act as “deletion, addition, alteration or interlineations” Deletion is defined in the Act as “a deletion, cancellation or obliteration in whatever manner effected, excluding a deletion cancellation or obliteration that contemplates the revocation of the entire will”. 2 types of amendments will affect a will – namely whereby provisions are added and amendments whereby provisions are removed. Amendments effected to a will before or during completion of the will are governed by common law. In S.a the accepted practice seems to be that all such amendments are signed or initialed by the testator and attested by the witnesses. Section2 (1) (b) and 2(2) govern the formalities with which an amendment made after the execution of a will must comply. Formalities here are exactly same as those applying to the initial execution of a will. CHAPTER 5 – REVOCATION OF WILLS Animus revocandi – is the intention to revoke a will. A will may be revoked expressly or tacitly. A testator cannot revoke his will orally even if in the presence of witnesses. Marriage status – if a person gets married his or her status changes to that of married person. But this does not entail an automatic revocation of the persons will. Divorce – does affect the testators will only for a limited time and only in respect of certain beneficiaries. If a person dies within 3 months after his or her marriage is dissolved by a divorce or annulment the previous spouse will not inherit under that persons will. A person is therefore given 3 months to change his or her will after the divorce or annulment and is this is not done – say if a testator dies four months after his or her divorce/annulment and has not changed his will then the previous spouse will inherit. Express revocation: 1. Where a testator makes a later valid will in which he or she expressly revokes all previous wills. This clause is called a revocation clause. 2. when an unmarried testator expressly revokes his or her will by means of a subsequent anc 3. Common law – practice if a testator destroys part or entire will with the intention of revocation. 6 Tacit revocation: A testator may tacitly revoke his or her will either wholly or partially. Prima facie – looks valid when one simply looks at it.  When a testator dies leaving various wills and later wills and doe not expressly revoke the former wills – it is possible that they will all be valid and they must al be read together and reconciled as far as possible in order to give effect to the testators actual intention. Where a provision in a later will is in conflict with a provision in an earlier will – the provision in the later will must be given effect to. Common law presumptions concerning the revocation of wills: 1. A will destroyed by the testator – rebuttable presumption the he or she intended to revoke will. 2. where a will was in the testators possession prior to death and when he or she dies cannot be found – presumption is that the testator has destroyed will CHAPTER 6 – REVIVAL OF A REVOKED WILL A testator may wish to revive a will which he or she had previously revoked either partially or wholly. A revoked will cannot be revived orally or by means of a nontestamentary act Requirements for the revival of a revoked will are: this will should still be in existence – not destroyed  the will that is being revived must when initially drawn up comply with formalities applicable it should be revived by a new will  the reviving must be properly executed in accordance with the formalities prescribed CHAPTER 7 – Testamentary capacity and the capacity to benefit under a will A will is a unilateral legal act – all persons who are capable of performing legal acts are generally capable of making wills. Legal acts can be performed by persons over the age of 18 – testamentary capacity is on the other hand 16 years of age When referencing to persons capacity to make a will the term testamentary capacity must be used and not legal capacity. Capacity to act – in broad terms is a person’s capacity to enter into legal acts. Testamentary capacity – is the 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 , and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same. 1. The testator must have been sane (compos mentis) at the time of making the will. Must be of sound mind when he or she and witnesses sign the will 2. Intoxicated person just like an insane person cannot make a will 3. The testator must have the free and serious intention to dispose of his property by will. 7 The capacity to benefit under a will: The fundamental principle is that any person, whether natural or juristic, whether born or unborn may be a beneficiary under a will.  adopted and illegitimate children – both children can inherit  The unborn – must be conceived at the moment when the bequeathed benefit vests in him or her.  PERSONS WHO MAY NOT INHERIT TESTATE OR INTESTATE: the person who murdered the testator. (Die bloedige hand – the bloody hand does not inherit), this applies to the person who has murdered the deceased’s parent, child or spouse.  If a person was insane when murdering the testator he has the capacity to inherit.  Common law – a person whom negligently causes the death of a testator cannot inherit from him or her.  Marriage in cop – if a spouse married in cop murders his or her spouse he does not inherit half of joint estate  Extramarital children – can inherit.  Testate – the person that writes or types the will is disqualified from benefiting under this will  Testate – a person that signs or witnesses the will is disqualified from benefiting under the will.