Law of Succession:

ERF 222
Ms. Kgopotso Maunatlala

Lecture 8: Chapter 2 Part 4

August 2023
 RULE 4
SECTION 1(1)(d) – Deceased is survived by
both parents – No spouse/s or permanent life
partner and descendants
SECTION 1(1)(d)(i) – Deceased is survived by both
parents
• Estate splits into two (2)
• Each parent inherits half of (E’s) estate to the exclusion of the collaterals
• Parents = biological, adoptive and the commissioning parents in the case of surrogacy of the deceased

• Step-parents ≠ included (Flynn v Farr 2009 1 SA 584 (C) court did not recognise de facto adoption, but

keep in mind s1 RCLSA)

New interesting development (albeit a bit problematic): Wilsnach v TM (2021) (GP)

Grandmother = primary caregiver = fulfilled role of parent (full parental responsibilities and rights…guardianship…
terminated father’s guardianship…)
Estate of child divided between mother and grandmother…see reasons! Paras 41-93

Criticism? Legal certainty? Other de facto caregivers? Foster parents?

 RULE 5
SECTION 1(1)(d)(ii) – Deceased is survived by
one parent and the descendant/s of the
predeceased parent
RULE 5 – SECTION 1(1)(d)(ii) – Deceased is survived by one parent
and the descendant/s of the predeceased parent

• Surviving parent inherits half of the estate

• The other half of the estate devolves upon the descendants of the predeceased
parent per stirpes and by representation
• If the deceased parent has no descendants, the surviving parent inherits the
entire estate
• Division between the descendants of the predeceased parent of the deceased
takes place by representation per stirpes
 Examples – Deceased is survived by one parent and the
descendant/s of the predeceased parent

1. J, and her brother H, were killed in a car accident on 30 December 2020. J was unmarried and
had a child J1, (who was born from her relationship with her boyfriend, L). However, J1 is
predeceased. H is survived by his 4 children, namely: H1, H2, H3 and H4. J is survived by her
father, F, (who has a child, A, from a previous marriage) and her sister, S, (S, who has 2
children, namely: S1, and S2). S, repudiates her benefit. Apply the principles of the intestate
succession law and distribute J’s estate if her estate is worth R 24 000 000.
Answer to Example 1

DECEASED PARENT (M) SURVIVING PARENT (F)

50% ESTATE 50% ESTATE

M is predeceased – Her 12 000 000 share must be distributed R 12 000 000
amongst her descendants via representation

• H, (predeceased) = R 6 000 000

o H1, H2, H3, and H4 each inherit R 1 500 000 via

representation (R 6 million/4)

• S, (repudiated) = R 6 000 000

o S1, & S2, each inherit R 3 000 000 (R 6 million/2)

Examples – Deceased is survived by one parent and the descendant/s of the
predeceased parent

2. E is survived by his mother M and siblings

S with whom he shares both parents, C,
his predeceased father’s son from a
previous marriage. He is also survived by
his paternal grandparents Q and R, his
niece T1 and nephew T2 (children of his late
sister T). His children from his predeceased
girlfriend have also passed away. Distribute
E’s intestate estate that is worth R 6 000 000
Answer to Example 2
• Sec 1(1)(d)(ii) of ISA
• M inherits R 3 000 000
• P’s share is equally divided between his descendants (3)

3 stirpes - S, T, C
⸫ S - R1 000 000
C - R1 000 000
T’s share will be inherited by – T1 and T2 - R5 000 000 each by representation
 RULE 6
SECTION 1(1)(e)(i)(aa – cc) – Deceased is not survived by
spouse, descendant/s or parents, but the descendant/s of
his/her parents
 RULE 6 – SECTION 1(1)(e)(i)(aa – cc) – Deceased is not survived by spouse,
descendant/s or parents, but the descendant/s of his/her parents

• Where the deceased is not survived by a spouse, a descendant or a parent, but is survived by
descendants of his/her parents – the intestate estate is cloved/divided into halves or 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 parent A, by representation or per
stirpes, and the other half to the descendants of the deceased parent B, by representation or per
stirpes.

• Full brothers and sisters: Will take a share from both halves (mother & father)

• Half brothers and sisters: Will take a share from the half of the estate of the

parent through which they are related to the deceased.

 SECTION 1(1)(e)(i)(aa)

The deceased is only survived by half-blood siblings

Section 1(1)(e)(i)(aa) – The deceased is only survived by half-blood siblings

Half brothers and sisters: Will take a share from the half of the estate of the parent
through which they are related to the deceased.
They will not inherit from the side of the parent to whom they are not related to the
deceased.

E.G. = If A is related to the deceased through sharing a father, A will only inherit
from their father’s side and not from the deceased’s mother’s side.
 SECTION 1(1)(e)(i)(bb)

The deceased is only survived by full-blood siblings

Full brothers and sisters: Will
take a share from both halves
(mother & father)

(E) estate = R100 000-00

Divided in 2
Devolves from (M) and (P) respectively
(How? S1 (4)(a))
A - inherits R25 000-00 through (M) and R25 000-00 through (P)

B - inherits R25 000-00 through (M) and R25 000-00 through (P)
 SECTION 1(1)(e)(i)(cc)

The deceased is only survived by full-blood and half-blood siblings

Example 5: The deceased is only survived by full-blood and half-blood siblings

• F, (male) and M, (female) were married out of community of property in 1970. Three children were born from their
marriage, namely A, E, and B. A, has a child, namely A1.
• In 1990, M, and F, were divorced.

• In 1992, F, started a relationship with X, (female), and the couple had a child C. C, has two children, namely C1, and
C2.

• In addition, X, has two children from a previous marriage with Z, namely X1, and X2.
• In 2007, M entered into a Civil Union with Y, (female), and the couple adopted a child, D.

• F, died in 2019 and M, died in 2020.

• Accept that E died intestate in January 2021. Apply the principles of intestate succession law and distribute E’s estate
worth R 6 000 000.
Answer to example 5
 Section 1(1)(e)(ii)

The deceased is survived descendant/s of one

parent only
The deceased is survived descendant/s of one
parent only

Only half-blood collaterals on one side?

• If the deceased is not survived by a spouse,

descendants or parents and only one of his
predeceased parents has left descendants,
those descendants are the sole heirs.

• No need to divide the estate into two.
E.g. Thomas dies intestate. He is survived by
his half-brother, Dan, from his father’s side.
Dan will thus inherit Thomas’ entire estate.
A inherits the entire estate
⸫ Any competent heir in the second parental
inherits to exclusion of persons in third
parental
 Section 1(1)(f)

The deceased is survived by further blood relations

S 1(1)(f)

No spouse(s)…permanent partner (if factored in)…

No descendants
No parents
No descendant(s) of parents

Then: Move to 3rd and further parentals

Then: Person(s) “nearest in degree” inherits everything per capita

NB: No Representation allowed in 3rd and further parentals!!!

S 1(1)(f) - The deceased is survived by further blood
relations

To determine the nearest family relation = count the degrees of relationship.

1. Consider all living relations of the deceased who stand to inherit

2. Identify persons who may have already died but who are common ancestor/s of the deceased and
those who stand to inherit.

3. Count the degrees of relationship

3.1 For a surviving heir in the direct line of succession – count the degrees of

relationship between the deceased and common anscestor/s.

3.2 For surviving collateral – count the degrees of relationship between

the deceased and the common ancestor plus the common ancestor and

the person who stands to inherit

Q, S, T= 2nd degree

N= 3rd degree

X1, X2= 4th degree

 6. Examples

6.1 E, dies intestate. E’s spouse (V), mother (M), father (P), brother (A) and grandfather (C) have
predeceased him. E is survived by his grandmother (B), great-grandmother (D), and great-
grandfather (F). Distribute E’s estate by applying the principles of intestate succession if the value
of the intestate estate is R6 000 000.
6.2 E, dies intestate. E’s spouse V, mother M, father P, brother A, grandfather C, and his grandmother
B, have predeceased him. E is survived by his great-grandmother (G), great-grandfather (F), and
his aunt (D). Distribute E’s estate by applying the principles of intestate succession if the value of
the intestate estate is R 6 000 000.
 Answers
6.1

• B, the grandmother is related to the deceased, E, in two (2) degrees

• The great-grandmother D, and great-grandfather F, are related to the deceased in three (3)
degrees each.
• B, thus inherits the entire estate as she is the nearest surviving blood relationship.

6.2
• Aunt D, great-grandmother F, and great-grandfather G are each related to E in three (3) degrees
and each thus inherits a third of the intestate estate.
 NO COMPETENT INTESTATE HEIRS?

• Should a person die intestate without having anyone who could inherit his/her estate, the
estate is declared forfeited to the state as bona vacantia (‘ownerless goods’)
• Sec 35(13) Administration of Estates Act: stipulates that the executor of the estate
must handover any money he is unable to apportion, to the Master of the High Court who
will then place this money in the Guardian’s Fund
• Sec 92 Administration of Estates Act: if money placed in the guardian’s fund is not
claimed after 30 years then it is forfeited to the state
 TIPS

REMEMBER TO:

1.Read the full set of facts

2.Draw a diagram (be neat & clear)

3.Identify the applicable section/rule

4.Perform all the necessary calculations in terms of that section/rule

5.Apply!! Answer the questions in terms of who inherits what amount

6.Give yourself time to go through the practice exercises and the examples above

7.Know the rules, the different parental groups and how to apply the different rules to the possible
scenarios.