Intestate succession in South African law

Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument.

This may happen in many circumstances: for example, Furthermore, intestacy can occur if certain conditions in an otherwise valid will are not fulfilled, or if benefits have been repudiated and no provision has been made for substitution, and accrual cannot take place.

In 1621 the Heeren XVII of the Dutch East India Company instructed the government of the Dutch East Indies to enforce these enactments, and the States-General decreed them to be in force in Cape Colony by the Octrooi of 10 January 1661, which was confirmed by Governor Pasques de Chavonnes on 19 June 1714.

The main common-law principles of intestacy were derived from a combination of two systems, somewhat in conflict, which prevailed prior to 1580 in the Netherlands: the aasdomsrecht, the law of North Holland and Friesland, which meant "the next in blood inherits the properties", and the schependomsrecht, the law of South Holland and Zeeland, which meant "the properties return to the line whence they came".

[3] Under both systems, the property of an intestate person went to the deceased's blood relations only: in the first place, to his descendants; failing them, to his ascendants and collaterals.

The 1580 Ordinance adopted the schependomsrecht distribution per stirpes, restricting it in the case of collaterals to the fourth degree inclusive.

[6] This interpretation has since been extended by case law, in recognition of the modern perception that there is a need to protect the interests of surviving spouses.

The common law, as derived from the two different systems that applied in Holland, has been adapted on numerous occasions by legislation.

For example, all natural persons, irrespective of whether they are adopted or extra-marital, or conceived by artificial insemination, or born as a result of a surrogacy arrangement, nowadays have the capacity to inherit.

This meant, inter alia, that the reforms introduced by the Intestate Succession Act, 1987 did not apply to spouses married in terms of African customary law.

Essentially, there are four forms of marital regimes recognised by the courts: With regard to marriages in community of property or in community of profit and loss, the surviving spouse automatically succeeds to half of the joint estate (communio bonorum); the remaining half devolves according to the rules of intestate succession.

With regard to marriages in separation of property,[9] the entire estate devolves according to the rules of intestate succession.

If the husband dies, the difference in the accrual of both estates is R50,000; therefore the wife has a claim for half of the accrued amount: R25,000.

The share inherited by a surviving spouse is unaffected by any amount to which he or she might be entitled in terms of the matrimonial-property laws.

If there are no relations of the deceased, by blood or by adoption, and no surviving spouse, the fiscus or State is entitled, after the lapse of thirty years, to claim the estate as bona vacantia (unclaimed property) in terms of the common law.

[12] Section 23 of the Black Administration Act, 1927 stated that, when African persons died intestate, their estates devolved in terms of the rules of primogeniture.

There is a statute not yet in force (the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009) which states that the estates of persons subject to customary law who die intestate will devolve in terms of the Intestate Succession Act, 1987.

Persons married in terms of Muslim rites are not recognised in South African law as "spouses" proper.

The courts in Daniels v Campbell and Hassam v Jacobs, however, have held that persons married in terms of Muslim rites may inherit as if they were spouses proper.

Persons married in terms of Hindu rites are not recognised in South African law as "spouses" proper.

The court in the case of Govender v Ragavayah, however, held that persons married in terms of Hindu rites may inherit as if they are spouses proper.

Before the Civil Union Act, 2006, partners in a permanent same-sex life partnership were not allowed to marry, and so could not inherit from each other intestate.

The memorandum to the Amendment Bill cites Gory v Kolver as authority, but it has been suggested that the situation which prevailed at the time that this case was heard no longer exists, due to the advent of the Civil Union Act, 2006.

More importantly, both types of relationship (same-sex and heterosexual) will be on an equal footing under the proposed Domestic Partnership Bill.

It is trite that the survivor of a heterosexual life partnership enjoys no benefits as a spouse under the Intestate Succession Act, 1987; nor may the survivor of a heterosexual life partnership claim maintenance from the deceased estate in terms of the Maintenance of Surviving Spouses Act, 1990.

Section 26 of the Bill also provides that an unregistered domestic partner may apply for an order for intestate succession, and that the court will take into account, inter alia, The Bill does not make the relationship between the parties a "marriage" or a "civil union" proper; it merely allows for the registration of the partnership.

Three stirpes . B is a stirpes , as he is a surviving descendant of A. C and E are both stirpes , as they are survived by descendants. F is not a stirpes , as he is not survived.
Two stirpes . C is a stirpes , as he is a surviving descendant of A. D is a stirpes , because he is survived by a descendant. In other words, although D and H are both deceased, D is survived by his grandchild; therefore it is D who is the stirpes , not I.
If B is unworthy to inherit, or if he chooses not to, F and G may represent B in order to inherit.
The estate is worth R300,000. A, B and C will each receive R100,000.
The estate is worth R300,000. B and C will each receive R100,000. D and E will each receive R50,000 (A's one-third share divided equally).
The estate is worth R400,000. There are three children; therefore, one should divide the entire estate by four (three children plus one) to calculate a child's share. A child's share is thus R100,000. Because the spouse inherits the greater of R125,000 and a child's share, the spouse in this example will inherit R125,000. The remaining R275,000 is then divided equally between the children. Thus each child will receive R91,666.67. If the estate is worth less than R125,000, the spouse will inherit everything.
X is the deceased in question. His estate is worth R300,000. F will receive his half share of R150,000. M is the deceased mother, so her half-share will be divided equally between her descendants. Therefore, C and A will each receive R75,000.
X is the deceased in question. His estate is worth R300,000. Half of the estate goes through M and the other half through F, as they are the parents of the deceased. Y, Q, A and B will receive R37,500 each through F's line, as they are all descendants of F (R150 000 divided by four). A and B will receive R75,000 each through M's line, as they are both descendants of M (R150 000 divided by two). Thus overall Y and Q will receive R37,500 each, while A and B will receive R112,500 each (R37,500 plus R75,000).
A and B will inherit the entire estate in equal shares.
E dies intestate. E's spouse (V), mother (M), father (P), brother (A) and grandfather (C) predeceased him. E is survived by his grandmother (B), great-grandmother (D and great-grandfather (F). Who inherits E's estate? Look to the people still alive: B is related to E in two degrees; D and F are related to E in three degrees. Since the nearest blood relative is the one who inherits, B will inherit everything from E.