TUTORIAL LETTER 3

GUIDELINES FOR ANSWERS FOR ASSIGNMENT QUESTIONS

Year 2022
Semester FIRST SEMESTER
Module LAW OF SUCCESSION
Module code LOS201

Lecturer/Facilitator of Learning Mrs Cedrine Erntzen

Consultation times I prefer that you send me an email please

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Telephone
the module group

Email cerntzen@stadioDL.ac.za
2. GUIDELINES FOR ANSWERS FOR ASSIGNMENT QUESTIONS

Question 1 [10]
1.1 List the requirements that must be fulfilled before the rules of succession can come into
operation. (5)
a) The testator must have died.√
b) There has to be a transfer of rights and/or duties√ with regard to the estate and/or the status of
the deceased depending on the nature of the succession rules (common law or customary
law).√
c) At the time of dies cedit, the beneficiary has to be alive or have been conceived.√
d) The beneficiary must be competent to inherit.√
Law of Succession study guide, Study Unit 1 pages 18-21.

1.2 List the instances when a person dies intestate. (5)

In South African law, it is possible for a deceased to die wholly testate, wholly intestate, or
partly testate and partly intestate. Intestate succession applies if a deceased dies:
a) without leaving a will at all, √
b) having executed a valid will which has subsequently become wholly or partly
inoperative for some reason, √
c) with a valid will that fails to dispose of all the deceased’s assets, √
d) leaving a document purporting to be a will √ but which does not comply with the
formalities for wills and is not condoned in terms of section 2(3) of the Wills Act √.
Law of Succession study guide, Study Unit 2 page 25

Question 2 [15]
Write a legal opinion in which you advise your client on the operations of the Doctrine of Election.
Your legal opinion must make reference to the appropriate case law.
1 mark for drafting in essay format/ legal opinion format or in paragraphs 
The doctrine of election is applicable in all cases where acceptance of a benefit from a will at the
same time holds some kind of burden or obligation (such as a modus or a condition) for the
beneficiary. In other words, a beneficiary has to elect or choose to accept a benefit which
imposes a burden. The beneficiary may accept the benefit (adiation), but is then obliged to
accept the associated responsibility. It is not possible for the beneficiary to adiate partially - the
benefit has to be accepted as a whole.

It is important to know when the doctrine of election comes into play because in cases where the
choice (that is, whether to adiate or to repudiate) has to be exercised in writing. a written adiation
or repudiation certificate must be submitted to the Master of the High Court together with the estate
account.

If a beneficiary elects to repudiate a benefit, he or she will receive nothing. According to Ex parte
Estate Van Rensburg, a beneficiary must accept the whole will in as far as it is applicable to
him or her. He or she may repudiate any bequest he or she does not like, but then may not
receive any benefit under the will.
The doctrine of election does not simply mean that a beneficiary has to choose whether he or she
wants to inherit a benefit or not. The doctrine only applies if a burden (such as a modus or a
condition) has been placed on the beneficiary by the testator. The doctrine of election plays a
specific role in estate massing.
Study Unit 3 page 37.

Question 3 [10]
What are the execution (signing) formalities prescribed in the Wills Act for a valid will?
The execution formalities required by section 2(1)(a) of the Wills Act may be summarised as
follows:
a) The will must be signed at the end thereof by the testator himself or herself, or an
amanuensis - someone who signs the will on behalf of the testator√√.

b) If the will comprises more than one page, every page other than the last must be signed
anywhere on the page by the testator or the amanuensis√√.

c) The signature of the testator or the amanuensis must be made (or acknowledged) in the
presence of two or more competent witnesses√√.

d) Such witnesses must attest and sign the will in the presence of the testator and each other,
and (where applicable) of the amanuensis√√.

e) Where the testator signs with a mark, or an amanuensis signs for the testator, a
commissioner of oaths must be present and certification formalities apply√√.
Law of Succession study guide, Study Unit 5 page 44.

Question 4 [20]
Paul is predeceased by his parents, wife and three children. He has two brothers and a half-sister
from his mother’s side. One afternoon, while fixing his roof, Paul slips and falls off the roof. Three
of his neighbours rush over to assist him and call the ambulance.

Unfortunately, Paul succumbs to the injuries from the fall. Nevertheless, the paramedics and all
three of Paul’s neighbours heard him repeatedly saying in his last moments “My entire estate must
go to my best friend Mark, Mark must inherit my entire estate.”

Your law firm has received the instruction to draft a legal opinion, analyse the facts of this matter
and advise on how Paul’s estate will be dissolved. Ensure that your legal opinion names and
explains the form of succession, who will inherit and further support your legal opinion with the
applicable legislation. (20)

1 mark for drafting in essay format/ legal opinion format or in paragraphs

1 mark for naming Intestate Succession as the form of succession
1 mark for stating the reason for Intestate Succession: Intestate succession applies if a deceased,
Paul dies, without leaving a will at all
Intestate Succession Act read with the rules of the Reform of Customary Law of Succession Act
(‘RCLSA’) RULE 6 (S 1(1)(e)(i)(aa)-(cc)) : deceased is not survived by spouse, descendants
or parents, but by descendants of his or her parents

As Paul is not survived by his spouse, a descendant (any of his children) or a parent but is
survived by descendants of his or her parents whether of full or half blood, the intestate estate is
divided into halves. It is said that the estate is cloven into two equal shares with each share
going to the side of one of the deceased’s parents. From there, one half goes to the descendants
of the deceased father by representation per stirpes, and the other half to the descendants of the
deceased mother by representation per stirpes. The full brothers and sisters of the deceased will
take a share from both halves.
3 marks for concluding that Paul’s brothers will inherit halves from both their parents, while the
half-sister will only inherit from the mother’ side.
Study Unit 2 page 24
Study Unit 2 page 29

Question 5 [10]
Discuss the rules that were and are currently applied to the administration of black persons’
estates, particularly the liquidation thereof, with the relevant case law.
Prior to December 2000 a separate system existed for administering intestate estates depending
on a person’s race. A magistrate administered black persons’ estates, while the Master of the High
Court √ administered the estates of all other race groups, as well as the testate estates of black
persons.√ Moseneke v Master √ brought these differences to the fore when the Constitutional
Court declared any legislation to be unconstitutional that creates different systems of
administration on the grounds of race.√ The Court did not, however, change the circumstances
pertaining to the administration of estates having to devolve in accordance with the customary law
of succession.√

Various other legislative measures have since been enacted but they have been applicable to all
estates except those having to devolve in terms of customary law.√ On 15 October 2004, the
Constitutional Court in Bhe v Magistrate, Khayelitsha,√ amended the position even further by
declaring that South Africa should have a unified and unbiased system of administration of
estates.√ The Court ordered that all new 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 has existed for all South Africans, and the choice of law rules applies
only to the question of whether a deceased estate must be administered by the Master or a
designated Magistrates’ Office depending on the value of the estate.√
Law of Succession study guide, Study Unit 1 page 6.

Question 6 [15]
Your client is fond of animals, therefore, he would like to leave his fortune to the SPCA (Pty) Ltd in
his will. However, his niece, a second-year law student, has advised him that it is not possible for a
company to inherit. It is for this reason that your client has approached your law firm to draft a legal
opinion in which you advise him whether it is possible for the SPCA (Pty) Ltd, which is currently in
financial distress, to inherit his estate. Your legal opinion must make reference to the appropriate
case law.
1 mark for drafting in essay format/ legal opinion format or in paragraphs 
In terms of the Intestate Succession Act, only natural persons can inherit intestate. However,
there is nothing in statute or the common law precluding a testator from nominating a company or
a close corporation as a beneficiary in a will. The right to claim the inheritance will vest in the
company or close corporation unless an authorised company director or a member of a close
corporation repudiates the inheritance. The repudiation would have to be exercised within a
reasonable time after the company acquires the capacity to inherit.

If a company or close corporation is insolvent or under judicial management, it is an open question

in our law  – as it was not expressly decided in the case of Wessels v De Jager – whether the
directors of the company or the members of the close corporation would be able to repudiate the
inheritance. It may be argued that to repudiate the inheritance would be to the detriment of
creditors and would constitute a breach of the fiduciary duties of directors and members. 
1 mark for concluding that the SPCA (Pty) Ltd can inherit your client’s estate .
Study Unit 7 page 59

Question 7 [20]

Mini Research Assignment

It is important for a law student to be able to do research and to independently debate topics and
draw well thought through conclusions based on legal principles and supportive documents or
case law. This research assignment will challenge you to move outside your comfort zone of only
consulting your Study Guide and textbook, but it will give you the opportunity to grow academically
and to capacitate you to be ready for the work environment.
NOTE: For this question you need to make use of an article on Sabinet. Should you not have
access or have trouble with accessing Sabinet, you must contact SBS and ask for the IT
department for assistance. The lecturer cannot assist with this administrative aspect.
Your answer may not exceed 2 typed pages. Any pages more than 2 pages will not be marked and
you may therefore lose marks. Remember that a good answer should have (1) an introduction, (2)
a body, and (3) an insightful conclusion.
You will obtain a mark of 0% for an answer which you simply copied and pasted as your own work.

The article is: The consequences of the statutory regulation of customary law: an examination of
the South African customary law of succession and marriage.
Potchefstroom Electronic Law Journal Vol. 22, No. 1 by Fatima Osman.

INSTRUCTION: Discuss the development of customary law in line with constitutional values

ANSWER: The student must provide an insightful summary of pages 4 till 7 of the article: The
consequences of the statutory regulation of customary law: an examination of the South African
customary law of succession and marriage.

TOTAL: [100]
3. CONCLUSION

Everything of the best with your studies and the examination, please ensure that you start studying
well in advance.

Kind regards,

Mrs. Cedrine Ernstzen