Law of Succession

HLSUA1A
CHAPTER 1
INTRODUCTION
Prescribed Textbook: The Law of Succession in South Africa
3rd Edition
 Lecture Outcomes
• General understanding of the background to the law of succession.
• An understanding of the dual character of the law of succession.
• An understanding of succession terminology.
• Explain ground rules of succession
 General Background to the Law of Succession

• When someone dies, he/she leaves behind an estate, referred to as the

‘deceased estate’ which must be devolved or distributed among his/her heirs.
• The rules of the law of succession determines how such devolution must take
place. In other words, the law of succession prescribes rules that determine
what should happen to a person’s estate after his/her death..
• These rules identify the persons entitled to inherit (the beneficiaries), and the
extent of the benefits (inheritances or legacies) they are to receive.
• The succession rules also determine the rights and duties that persons for
example beneficiaries and creditors, may have in the deceased’s estate.
• Law of succession forms part of private law.
 Dual Character of the Law of Succession
• The law of succession comprises two branches, namely:
• i. the common law of succession; and
• ii. the customary law of succession.
• These two branches enjoy equal status and are subject to the Constitution and other
legislation.
• The common law of succession is divided into:
• i. the testate law of succession; and
• ii. the intestate law of succession
• The customary law of succession only operates intestate.
 Ways in which succession can take place
• Succession may take place in three ways:
In accordance with a valid will, that is, testamentary
succession or successio ex testamento

Through the operation of the law of intestate succession

in the absence of a valid will, that is, successio ab intestastato.

In terms of a contract or agreement, that is, successio ex

contractu or pactum successorium.
 The Law of Succession in the Legal System
The material rules of the law of succession (both the common law and customary law rules) operate in the private sphere and hence
law of succession is part of private law.
They prescribe what becomes of a person’s estate after death, who the beneficiaries are and what they will inherit. They also
determine the rights and duties that persons may have in a deceased’s estate. A deceased estate consist of all the assets and
liabilities a deceased person leaves behind after his death.
The formal rules describing the process by which a deceased estate is liquidated are referred to as the administration of estates.
The administration of an estate can be briefly defined as the process by which a deceased person’s debt are paid and the balances of
his estate is awarded and transferred to his beneficiaries. This process takes place in terms of the law and under the supervision of
the Master of the High Court.
The private international law of succession, consisting of statutory and common law rules, prescribe what should happen when a
testator has connections with a country other than South Africa.
 Choice of Law Rules
• The problem of conflicting rights and duties
• The duality of the SA legal system inevitably leads to situations where persons are subject to overlapping or conflicting rights
and obligations.
• Whenever this happens, the courts have to apply choice of law rules to determine which law is applicable.
• This process forms part of the legal discipline known as the choice of law rules.
• The relevant choice of law rules can be derived from statute and judicial precedent.
• 2. Testate law of succession
• Where there is a valid will, the choice of law rules are fairly straightforward.
• In the absence of a direct provision indicating which law should be applicable, the common law of succession should apply.
• 3. Intestate law of succession
• Where there is no valid will, the common law and customary law applies.
• Case – Bhe v Magistrate Khayelitsha
• 4. Administration of estates
• Liquidation of deceased estates – in Bhe v Magistrate Khayelitsha the court ordered that all deceased estates were to be
administered under the master’s supervision according to the Administration of Estates Act.
• Since 2004 a unitary system of administration of estates exists for all South Africans and the choice of law rules only apply to the
question of whether a deceased estate must be administered by the Master or a designated magistrate’ office depending on the
value of the estate.
 Ground Rules for Succession

• i. Person must have died.

• ii. Transfer of rights/and or duties with regard to assets
and/or the status of the deceased.
• iii. Beneficiary must be alive or have been conceived
• iv. Beneficiaries must be competent to inherit.
 Succession Terminology

• Study Pages 10-18

• Definitions form the basis of your knowledge and
understanding of the law of succession and should be
studied in detail. Without absolute knowledge of these
definitions you will find it impossible to study or apply the
law of succession.
 The End
Next Lecture – Chapter 2
Intestate Succession