The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto.
In the event of intestacy, the assets are distributed in a definite order of preference among the heirs, as stipulated by the Intestate Succession Act, 1987.
[1] Until recently, the Act (and its common-law precursor) existed side by side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end when the Constitutional Court, in Bhe v Magistrate, Khayelitsha, made the Intestate Succession Act applicable to all.
The consequences of the termination of legal subjectivity are as follows: When a person dies, everything remaining of his assets (once debts, obligations and administrative costs have been reclaimed) passes by inheritance to those qualified to succeed him.
The first exception to the rule that a person must be dead before succession can occur, is where a court pronounces a presumption of death and makes an order for the division of the estate.
[7] Vice versa, the survivor is held to repudiate the terms of the will if he or she does not take the interest in the share of the first-dying but assigns the estate of the deceased to the other beneficiaries.
To remedy this state of affairs a vitally important change was made in 1913 by the Administration of Estates Act in respect of mutual wills of spouses married in community of property.
Under the modern system of administering deceased estates, however, the beneficiaries under a will acquire only personal rights against the executor before transfer to them of the bequeathed property.
Another aspect worth mentioning, occurs when a number of people are killed in the same disaster (commorientes) and it is difficult to determine who died first.
The mere fact that somebody has been named as heir or legatee in a will, or in terms of the rules of intestate succession, does not necessarily mean that the person has the right to the relevant benefit.
A legatee, for example, has no locus standi to claim from a third person assets which the former alleges to form part of the estate; still less does the heir acquire the ownership of the assets upon the death of the testator: The heir has merely a vested claim (personal right) against the executor, enforceable after confirmation of the liquidation and distribution account.
The estates of all persons, whether dying testate or intestate, are administered and wound up by executors under letters of executorship granted to them by the Master of the High Court.
If empowered by the will, the executor may carry on the business of the testator, but without the authority of the court he may not pledge the credit of the estate in order to maintain it as a going concern.
However, after adoption of the English system of estate administration in the 19th century, the beneficiaries’ right to inherit is no longer absolute, nor is it assured.
If the deceased's estate, after confirmation of the liquidation and distribution account, is found to be insolvent, none of the beneficiaries will obtain any assets at all.
It follows from these considerations that an heir or legatee does not, upon the death of the testator, acquire the ownership of the assets; he merely has a vested claim (personal right) against the executor for payment, delivery or transfer of the property comprising the inheritance.
The modern position, therefore, is that a beneficiary has merely a personal right, ius in personam ad rem acquirendam, against the executor; he does not acquire ownership by virtue of a will.
The heir obtains ownership, or a lesser real right (such as a usufruct), only on delivery or transfer in pursuance of a testamentary disposition or intestate succession.
Frequently, however, a will directs that the estate property or some portion of it must not be distributed immediately, but must be administered by some person, who is termed the testamentary "trustee" or "administrator."
Collation (collatio bonorum or hotchpot) is an obligation imposed by law on all descendants who wish to share as heirs in the deceased's estate, either by will or on intestacy.
This is the case even if the debt has prescribed by lapse of time, been extinguished under the provisions of the Agricultural Credit Act, or been discharged by the insolvency and the subsequent rehabilitation of the descendant.
The effect of adiation is that the heir or legatee acquires a vested personal right against the executor for delivery of the asset once the estate has been liquidated.
The basis for this ground of disqualification lies in the general principle that no-one may benefit from his own wrongdoing, or from conduct which the law regards as punishable.
There are common-law and statutory grounds for disqualification that prevent beneficiaries from inheriting, and the courts have, over time, developed the law relating to these.
The amount of pressure which leads to the invalidity of a disposition on the ground of undue influence depends on various factors, such as the mental state of the testator and the relationship between the persons concerned.
It is an open question whether a person who has killed his spouse may claim the survivor's share in terms of the matrimonial property regime governing their marriage.
The executor will not be required to furnish security Despite the above, the Master will call for security In terms of section 29 of the Administration of Estates Act, as soon as letters of executorship have been granted, the executor must immediately advertise for creditors to submit claims against the estate within thirty days for publication.
The advertisements are required to be published on the same day in the Government Gazette, and in a newspaper that circulates in the district where the deceased was ordinarily resident at the time of death.
The advertisements are required to be published on the same date in the Government Gazette and a newspaper that circulates in the district where the deceased was ordinarily resident.
The court, in the interest of the minor, and in order to prevent the bequest from failing altogether, granted leave to mortgage the premises for such sum as would be sufficient to enable the petitioner to obtain transfer and place the premises in a habitable state of repair, and directed that the interest should be paid by her during her life.