IURI313PVMEC2023

IURI 313 EC
LAW OF SUCCESSION
Faculty of Law
MOD compiled by: Prof A Gildenhuys and Ms C Lanser

Copyright © 2023 edition. Review date 2023.
North-West University
No part of this document may be reproduced in any form or in any way without the written permission of the publishers.
It all starts here
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• Contributes the second largest number of graduates annually to the labour market
Dit begin alles hier

• As een van die top 5% universiteite wêreldwyd deur die QS-ranglys aangewys
• Lewer jaarliks die tweede meeste graduandi aan die arbeidsmark
Gotlhe go simolola fano

• Re beilwe mo gare ga diyunibesiti tse 5% tse di kwa godimo go ya ka peo ya maemo ya
QS
• Ngwaga le ngwaga go abelwa palo ya bobedi ka bogolo ya badiri mo maketeng ya badiri
NORTH-WEST UNIVERSITY
Module information
Module code IURI 313
Module name Law of Succession
12 credits
Module credits This implies that you must spend a total of 120 hours to master the
outcomes of this module successfully.
NQF level 7
Prerequisites None
Additional resources or Access to the internet, in order to: (1) collaborate with lecturers and
requirements to fellow students; (2) to engage with electronic resources; and (3) to
complete the various activities and/or assessments as communicated
complete module
per study unit.
successfully
Lecturer and contact information

Name of lecturer Prof Anél Gildenhuys
Site of delivery Potchefstroom
Office telephone 018-299 1036
Email address anel.gildenhuys@nwu.ac.za
Building and Office nr Building F5, G30
Consulting hours See eFundi
Teaching assistants See eFundi
Name of lecturer Ms C Lanser
Site of delivery Mahikeng
Email address charlene.lanser@nwu.ac.za
Building and Office nr Building A14, G14
1
Name of lecturer Adv Steven Serumaga-Zake
Site of delivery Vanderbijlpark
Email address 20561342@nwu.ac.za
Building and Office nr Building 11B, G20
Introduction
Purpose of the module:
The purpose of this module is to introduce students to the fundamental rules; requirements; and
other material content regarding the South African intestate and testate law of succession in terms
of the common-, customary- and statutory law.
Contextualisation of the module:
A jurist will not be fully equipped if he or she does not have a sound knowledge of the law of
succession which consists of two branches, namely the testate and intestate law of succession. The
law of succession is also the cornerstone of jurists who want to specialise in estate planning and
administration of estates.
The law of succession forms part of private law and a sound knowledge of subjects such as the law
of property, law of contract and family law are required to make you a well-rounded jurist for legal
practice.
Teaching and learning in this module

This module entails students’ active engagement with the content of this module. Prior preparation,
class attendance and participation in conversational and other activities are essential in order to
combine theory with practice. Furthermore, the students will be supported with an eFundi module
site being an extension of the contact sessions with online activities and peer support in order to
enhance their learning experience.
For students to benefit and learn from this module, they should at least attend all classes/lectures,
access and participate on eFundi regularly, collaborate with other students, take notes and to adhere
to deadlines.
2
Module outcomes Assessment criteria
Upon successful completion of this module, Students will be assessed on their ability
the student will be able to demonstrate: to:
• integrated and well-rounded knowledge; • define the basic terminology, key concepts,
detailed, coherent understanding; and an rules and principles of the law of succession;
ability to correctly evaluate and apply the • identify and apply the common, customary
material rules of the law of succession, with and statutory rules and requirements of the
special reference to: testate and intestate law of succession;
o the basic terminology, concepts, rules • identify and apply the most recent
and principles of the law of succession developments with regard to the law of
applicable to the estate of a person who succession;
died with or without a valid will;
• critically discuss and illustrate with examples
o the close connection between the law of how the law of succession is related to other
succession and other branches of law fields of law and legal practice;
such as family law and property law, as
well as the administration of estates;
o the most up to date developments in the
law of succession;
• the ability to critically evaluate factual • identify the legal question relating to a factual
situations in order to make informed situation;
conclusions and recommendations within the • select and discuss the relevant material
field of the law of succession; content applicable to the legal question;
• formulate an argument in order to make
informed conclusions and recommendations;
• the ability to communicate (verbally and in • the ability to effectively apply the material
writing) relevant information in an integrated, content in order to prepare integrated
accurate and coherent manner, with an documents related to the law of succession
understanding of copyright protection and such as wills and the application for
rules of plagiarism; condonation of invalid wills;
• the ability to draft and present documentation
and oral arguments related to the law of
succession in accordance with practice
conventions;
• application of research skills such as • present oral and written arguments to
collecting, verifying, analysing and sum- address legal problems pertaining to the law
marising legal information from various of succession;
sources dealing with issues in the law of
succession and related matters;
• the ability to operate effectively within a team • participate in group assessment activities to
or group and to make appropriate solve relevant hypothetical problem
contributions through the use of multiple legal statements; and
skills to successfully complete complex tasks • demonstrate the ability to function and take
and projects involving questions on the responsibility within a group;
intricacies of the law of succession and related
matters; and
• the ability to monitor and reflect on one’s own • demonstrate the application of effective
independent learning process, acquisition of learning and monitoring strategies to ensure
different learning skills and implementation of learning progress towards outcome
relevant learning strategies to improve attainment; and
learning in the area of the law of succession. • apply effective time management strategies
to complete and submit assignments on time.
3
Module plan:
Study unit 1: Introduction
Study unit 2: Intestate succession
Study unit 3: Testate succession - General rules and testamentary capacity
Study unit 4: Formalities of a will
Study unit 5: Revocation and revival of wills
Study unit 6: Capacity to inherit and collation
Study unit 7: Freedom of testation
Study unit 8: Content of wills - bequests, conditions, modus and estate massing
Study unit 9: Content of wills - substitution, usufruct and accrual
Study unit 10: Content of wills - testamentary trusts
Study unit 11: Interpretation of wills
Study unit 12: Succession by contract
Assessment
The assessment plan will be available on eFundi.
Action verbs
The following list contains all the possible verbs that may be used in this module to formulate learning
outcomes and all assessments. Every verb is accompanied by a description of what (re)action is
expected of you. Should an outcome (or assessment question) be to define a specific concept, such
as a fideicommissum, you are expected to communicate the definition as it is found in a textbook. If
you asked to describe what a fideicommissum is, you should use your own words, giving evidence
that you understand the concept fully and can apply it in context; an example always comes in handy
here.
Action words at the knowledge level
Describe • A description merely requires that you give the relevant facts or
characteristics, without any discussion of such facts or characteristics.
Nothing more than a clear and systematic exposition of the concept is
expected. You must stick to the relevant facts without commenting.
• For example: Describe the difference between a legacy and an
inheritance.
List / Name • Make a list only of the characteristics, facts or items as required, as with
a description or a definition.
• For example: Name the ground rules for succession.
Define • To define requires that you give the exact meaning of a concept. A brief,
clear and specific description must therefore be given, or the exact
meaning of a term or concept which pertains only to that term or concept
and to no other must be stated.
• For example: Define the concept fideicommissum.
4
Action words at the comprehension or insight level
Illustrate • To explain something with the help of examples.

• Example: Illustrate the differences between a legacy and an
inheritance.
Explain • To explain you must give the reasons for a certain case, phenomenon or
finding. Where possible, examples must be used to elucidate the
explanation.
• Example: Explain what the result will be on dies cedit and dies venit
if a bequest is subject to a condition.
Distinguish • Indicate the similarities or differences between two viewpoints or
standpoints.
• Example: Distinguish between a resolutive condition and a resolutive
term with reference to their influence on dies cedit and dies venit.
Summarise • To summarise the most important information in a concise and systematic
way.
• Example: Summarise the formalities of a will.
Compare • Identify the similarities and differences between the two or more matters
that must be compared and then give a systematic exposition, if necessary
in the form of a table: this is not merely a mechanical description, but a
thoughtful juxtaposition of the matters concerned.
• Example: Compare common law estate massing and statutory estate
massing.
Action words at the analytical level
Apply • Apply specific information or knowledge in a new situation by, e.g.

indicating with reference to an original example, how a particular method
or strategy may be employed to solve a problem.
• Example: How can you make use of section 2(3) of the Wills Act 7 of 1953
to have a will condoned that does not comply with the formalities of a will?
Solve • To solve a given problem on the grounds of knowledge of a certain
method / rule, etc. and insight into the nature of the problem.
• Example: How would you solve the problem where a will is invalid
because it was not signed by the testator and the end of it?
Analyse / • To analyse a problem, theme, argument, etc., it must, as it were, be taken
Problem apart and examined. The different constituent elements or components
statement / must not only be identified, but a distinction must also be made between
Advise the important and the less important elements or components and
commented on in your own words.
• Examples:
• Analyse: What was the problem with the will in the case of Ex Parte
Davies 1957 3 SA 471 (N)?
• Problem Statement / Advise: E leaves his farm to his son and the
residue of his estate to his wife. What will the position be if his son
repudiates the farm? OR Advise the wife of E with regard to the
repudiated farm.
5
Action words at the evaluation level
Discuss • Discussion requires that you comment on a matter in your own words.
Discussion often also requires that two or more standpoints or possibilities
be debated systematically, for example, to examine, analyse and approach
a case from different angles.
• Example: Discuss the validity of a will which has been signed more
than 20 centimetres after the concluding words of the will.
Analyse • Take the problem, theme, argument or concept apart, as it were, and
describe it. The description must be done in the words of the person doing
the analysis.
• Example: Analyse the legal position of the fideicommissary regarding
the fideicommissary property before the fulfilment of the
fideicommisary condition.
Action words at the synthesis level
Evaluate • To evaluate means to make an assessment, appraisal or value judgement

of a certain case, argument or statement.
• Example: Give a critical evaluation of the objections against the
pactum successorium.
Give your • Discuss one or more opinions on the matter or describe the status quo (e.g.
opinion the current legal position) and then give your own substantiated opinion on
the matter.
• Example: What is your opinion regarding the fact that polygamous
spouses are entitled to inherit in terms of the Intestate Succession
Act 81 of 1987?
Criticise • Criticising requires that a statement, argument, approach, view, etc. is
judged. In criticising you point out certain positive or acceptable and
negative or less acceptable concerns. Issues that you agree with and
issues that you have your doubts about are indicated together with reasons.
Criticising does not imply finding fault with something, but differing or
agreeing with certain views, arguments or standpoints in a substantiated
manner and giving your own opinion.
• Criticism always takes place on the grounds of certain criteria, values and
principles within a certain context or against a certain background.
• Example: Criticise the decision of the court in Kidwell v The Master
1983 1 SA 509 (E).
Action words on the level of synthesis
Give an • A large volume of knowledge must be condensed and presented in a logical

overview and systematic way, while retaining the essence.
• Example: Give an overview of the position of the Hindu wife in the law
of succession.
Integrate • First make an analysis of the given concepts or opinions before its essential
characteristics are brought together into a single unit.
• Example: On the basis of your knowledge of section 2(3) of the Wills
Act 7 of 1953, draw an application for condonation in the relevant
court.
6
Study material
Compulsory study material:
• Textbook: Jamneck J and Rautenbach C (eds) The Law of Succession in South Africa 4th ed
(Oxford University Press Cape Town 2022/2023)
• Should the 4th edition not be available at the commencement of the module, then the 3rd edition
will be applicable: Jamneck J and Rautenbach C (eds) The Law of Succession in South Africa
3 ed (Oxford University Press Cape Town 2017)
rd
• The compulsory reading (for example case law, legislation and journal articles), as indicted in
the various study units, is accessible on electronic databases (for example, LexisNexis or
Jutastat) via the NWU Library Guide for Law (LibGuide) (http://libguides.nwu.ac.za/law-guide).
Please ensure that you also obtain them to study in conjunction with your study guide and
textbook.
Additional study material:
• Additional material can be given during the contact sessions or via eFundi.
Time management
Study unit 1 This study unit should take approximately 6 hours to complete.
*Note: The hours stated above, include preparation for contact sessions, attending contact
sessions, preparation for assessments/ activities, completion of assessments/ activities,
preparation for examination, and the examination itself.
Warning against plagiarism

Plagiarism is a serious offence and you should familiarise yourself with the plagiarism policy of the
NWU http://library.nwu.ac.za/copyright-and-plagiarism
Please refer to the Policy on Academic Integrity which is found on the following website:
http://www.nwu.ac.za/sites/www.nwu.ac.za/files/files/i-governance-management/policy/2P-
2.4.3.2_Academic%20integrity_e.pdf
7
Study units
This is only an overview of the themes/topics with their outcomes. All references to activities/
assessments and study material per study unit are available on eFundi.
1 Introduction
Recommended time to master this study unit: 6 hours
Learning outcomes:
After engaging with the materials and activities in this study unit, you should be able to:
• explain: (a) the scope and application of the law of succession in South Africa; (b) the nature
and origin of the law of succession with reference to South Africa’s mixed, pluralistic system;
and (c) what is meant with the “dual nature” of the law succession;
• indicate where the law of succession fits within the South African legal system;
• illustrate (making use of prior knowledge) how the law of succession relates to other fields of
law;
• differentiate between the two branches of the law of succession namely testate and intestate
succession;
• list and discuss the ground rules of succession and illustrate your discussion with relevant
examples; and
• list and define basic terminology and key concepts regarding the law of succession.
2 Intestate succession
Learning outcomes
After engaging with the materials and activities in this study unit you should be able to:
• provide a brief outline of the historical development of the South African law of intestate
succession;
• list the instances where a person dies intestate;
• define the concepts descendants, ascendants, collateral and stirps and apply the definitions
to factual settings;
• differentiate between succession by representation and per capita succession and illustrate
your explanation with examples;
• explain when an intestate inheritance vests in the beneficiaries by referring to case law;
• give a summary of the categories of persons who are capable of inheriting intestate;
• explain what happens if a person is disqualified to inherit intestate or repudiates his intestate
benefit;
• discuss the most important court cases dealing with constitutional challenges against the
Intestate Succession Act 81 of 1987; the Maintenance of Surviving Spouses Act 27 of 1990
and certain intestate succession rules of the customary law of succession;
• provide background and context to the enactment of the Reform of Customary Law of
Succession Act 11 of 2009;
• indicate the applicable intestate succession laws (i.e the Intestate Succession Act 81 of 1987
and/or the Reform of Customary Law of Succesion Act 11 of 2009 or section 23 of the Black
Administration Act 38 of 1927) in factual settings;
8
• list the rules pertaining to the order of intestate succession as set out in the Intestate
Succession Act 81 of 1987 read together with the Reform of Customary Law of Succession
Act 11 of 2009; and
• divide an intestate estate in terms of the Intestate Succession Act 81 of 1987 read together
with the Reform of Customary Law of Succession Act 11 of 2009 where applicable.
3 Testate succession - General rules and testamentary capacity

Learning outcomes:
• provide a brief summary of the historical development of the testate law of succession;
• indicate why testamentary succession is fairly unknown in customary law as well as possible
developments in this regard;
• define and differentiate between all the important concepts relating to the testate law of
succession;
• discuss the basic requirements for a valid will;
• discuss the elements of a testamentary writing by means of case law;
• analyse how a benefit devolves if a beneficiary repudiates it;
• list the requirements for testamentary capacity;
• explain the difference in age between contractual and testamentary capacity;
• discuss the requirement that a testator must be mentally capable to make a will with reference
to case law; and
• apply the principles relevant to the general rules of testate law of succession as well as
testamentary capacity to factual settings.
4 Formalities of a will
Learning outcomes:
• differentiate between formal validity and substantive validity of wills;
• summarise; discuss and differentiate between the prescribed formalities for the execution of a
will as set out in section 2(1)(a)(i)-(v) of the Wills Act 7 of 1953;
• summarise; discuss and differentiate between the prescribed formalities for the amendment of
a will as set out in section 2(1)(b) of the Wills Act 7 of 1953;
• define and apply terminology relevant to the execution and amendments of wills;
• list the requirements set out in section 2(3) of the Wills Act 7 of 1953 for the condonation of a
will that does not comply with the prescribed execution or amendment formalities;
• discuss the various approaches taken by the courts in applying section 2(3) of the Wills Act 7
of 1953 as well as the implications of recent case law regarding the interpretation of section
2(3);
• apply (a) the formalities for the execution and amendment of wills; and (b) the requirements of
section 2(3) of the Wills Act 7 of 1953 to factual settings; and
9
• indicate why the formalities for the execution and amendment of wills in terms of the Wills Act
7 of 1953, also find application in the testamentary disposition of customary property.
5 Revocation and revival of wills

Learning outcomes:
• explain the meaning of revocation in the context of wills and set out what the general rule
regarding revocation is, including the two exceptions to this rule;
• describe the two essential elements for the revocation of a will;
• explain the methods of revoking a will by giving examples;
• explain the presumptions concerning the revocation of wills;
• give an outline of the doctrine of dependant relative revocation;
• give a summary of the contents of section 2A of the Wills Act 7 of 1953 and the relevant cases
pertaining to this section;
• discuss whether it is possible for a will to revive;
• indicate why the legal principles applicable to the revocation and revival of wills, also find
application in the will of a person living under a system of customary law; and
• apply the legal principles applicable to the revocation ad revival of wills to factual settings.
6 Capacity to inherit and collation

Learning outcomes:
• explain the difference between the capacity to inherit and testamentary capacity;
• provide a brief summary of selected historical developments regarding the capacity to inherit;
• discuss the categories of persons (natural and juristic) who are able to inherit from a deceased
person;
• discuss the categories of persons who are disqualified from inheriting from a deceased person;
• discuss selected customary rules that influence the capacity of a beneficiary to inherit in terms
of the customary law;
• apply the rules pertaining to the capacity to inherit to factual settings;
• summarise collation with reference to the: (a) definition of collation; (b) rationale behind
collation; (c) parties involved in collation; and (d) the benefits that are collatable;
• calculate collation in a given factual setting; and
• discuss the possible application of collation in the customary law of succession.
10
7 Freedom of testation
Learning outcomes:
• define the principle of “freedom of testation” and explain the general rule pertaining to a testator's
freedom of testation;
• critically discuss the limitations on freedom of testation with reference to (a) common law
limitations; (b) statutory limitations; (c) customary law limitations; (d) constitutional limitations;
and (e) indirect limitations;
• discuss the meaning, general rule and exceptions pertaining to the power of appointment; and
• apply the legal principles applicable to freedom of testation and the power of appointment to
factual settings.
8 Content of wills - bequests, conditions, modus and estate

massing
Learning outcomes:
• discuss the principles applicable to the vesting of rights by giving examples;
• discuss the effects of the time of vesting of rights by giving examples;
• make a diagrammatic summary of the different ways of making a bequest;
• differentiate between a legacy and a bequest by giving examples;
• make a summary of the various ways in which a legacy may lapse;
• discuss the meaning of a conditional bequest and distinguish between the various forms of
conditional bequests by giving examples;
• describe the meaning of: (a) a nudum praeceptum; (b) modus; and (c) estate massing;
• differentiate between a modus and a condition;
• list the requirements for estate massing and explain how estate massing can be effected;
• give a summary of the content of section 37 of the Administration of Estates Act 66 of 1965;
• apply the legal principles applicable to bequests, conditions, modus and estate massing to
factual settings; and
• indicate whether the legal principles applicable to bequests, conditions, modus and estate
massing, also find application in the customary law of succession.
11
9 Content of wills - substitution, usufruct and accrual
Learning outcomes:
• (a) define substitution; (b) discuss the principles applicable to substitution; and (c) give a
schematic description of substitution;
• (a) explain the meaning of direct substitution; (b) name the two forms direct substitution can
take; and (c) give three reasons why testators make use of direct substitution in their wills;
• explain the meaning of express direct substitution by giving examples;
• (a) explain the meaning of direct substitution implied by law (ex lege) by giving examples; (b)
explain in your own words the effect of section 2C of the Wills Act 7 of 1953; and (c) differentiate
between section 2C(2) and 2C(1) in tabular form;
• (a) discuss the meaning of fideicommissary substitution by giving examples; (b) give a
schematic exposition of the persons involved in a fideicommissum; (c) list the various forms of
a fideicommissum and explain the meaning of each form by giving examples; (d) discuss the
statutory restriction of the fideicommissum; (e) make a summary of the legal positions of the
parties to a fideicommissum; and (f) explain the effect of the presumption against a
fideicommissum;
• discuss the constitutionality of applying the common law concept of fideicommissum in order
to achieve the same result as in the application of the customary rule of male primogeniture;
• (a) explain the meaning of a usufruct by giving examples; (b) list the parties involved in a
usufruct and explain what their legal positions are; and (c) differentiate between a usufruct and
a fideicommissum;
• (a) define accrual; (b) discuss the circumstances under which accrual may occur; and (c)
mention the general rule regarding the question whether accrual should occur or not;
• (a) list the different modes of joinder and give an example in each case; and (b) discuss the
influence of Winstanley v Barrow 1937 AD 75 in the case where joinder verbis tantum is
present; and
• apply the legal principles regarding substitution, usufruct and accrual to factual settings.
10 Content of wills - testamentary trusts

Learning outcomes:
• define a trust (as defined in section 1 of the Trust Property Control Act 57 of 1988) in your own
words;
• distinguish between a trust inter vivos and a trust mortis causa;
• explain what the rationale behind a trust is;
• differentiate between a trustee and fiduciary in tabular form;
• discuss the: (a) different types of trusts; (b) legal nature of trusts; (c) requirements for the
creation of a trust; (d) core elements of a trust; and (e) legal position of trustees and
beneficiaries;
• summarise the various kinds of beneficiaries and their rights in both tabular form and otherwise;
12
• explain: (a) how trusts can be amended; and (b) the principles applicable to the termination of
trusts;
• apply the legal principles regarding a trust mortis causa to factual settings; and
• indicate, with reference to customary law of succession, how the creation of a mortis causa
trust by a family head, can be an effective instrument to ensure that family property remains in
the family.
11 Interpretation of wills
Learning outcomes:
• discuss the: (a) golden rule for the interpretation of wills; (b) statutory rules of interpretation; (c)
common law rules of interpretation; (d) rules for variation of wills; and (e) rules for rectification
of wills;
• give examples of how certain words may have different meanings in respectively the common
and customary law of succession and the implications thereof for the interpretation of a will
executed by a testator living under a system of customary law; and
• apply the legal principles relating to the interpretation; amendment and rectification of wills to
factual settings.
12 Succession by contract
Learning outcomes:
• define a pactum successorium and illustrate your definition by giving examples;
• summarise the historical and modern reasons for the prohibition against the pactum
successorium;
• discuss the tests that have been developed by the courts to identify a pactum successorium
and indicate which test enjoys preference;
• discuss the valid forms of a pactum successorium; and
• compare the principles of a pactum successorium under the common law with the deathbed
wishes of a family head in accordance with traditional customs.
13

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IURI 313 EC

MOD compiled by: Prof A Gildenhuys and Ms C Lanser

Dit begin alles hier

Gotlhe go simolola fano

Module name Law of Succession

Lecturer and contact information

Site of delivery Potchefstroom

Office telephone 018-299 1036

Email address anel.gildenhuys@nwu.ac.za

Building and Office nr Building F5, G30

Consulting hours See eFundi

Teaching assistants See eFundi

Name of lecturer Ms C Lanser

Site of delivery Mahikeng

Office telephone 018-389 2177

Email address charlene.lanser@nwu.ac.za

Building and Office nr Building A14, G14

Consulting hours See eFundi

Teaching assistants See eFundi

Site of delivery Vanderbijlpark

Office telephone 016-910 3540

Email address 20561342@nwu.ac.za

Building and Office nr Building 11B, G20

Consulting hours See eFundi

Teaching assistants See eFundi

Teaching and learning in this module

Action words at the knowledge level

Illustrate • To explain something with the help of examples.

Action words at the analytical level

Apply • Apply specific information or knowledge in a new situation by, e.g.

Action words at the synthesis level

Evaluate • To evaluate means to make an assessment, appraisal or value judgement

Action words on the level of synthesis

Give an • A large volume of knowledge must be condensed and presented in a logical

Warning against plagiarism

3 Testate succession - General rules and testamentary capacity

5 Revocation and revival of wills

6 Capacity to inherit and collation

8 Content of wills - bequests, conditions, modus and estate

10 Content of wills - testamentary trusts

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