Law of Succession

LOSA/LASU6211
Prescribed textbook: Law of Succession, 5th edition – M J De Wall et al

Lecturer: Adv. W. M. Sithole (email wsithole.law@outlook.com or

sithole10wesley@gmail.com
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILL

 Capacity to inherit must exist at the time of the vesting of the right and the
moment the beneficiary accepts the benefit.
It is necessary to distinguish between
 Capacity to inherit (a beneficiary’s ability to inherit) and
 Testamentary capacity (the ability of a testator to make a will)
Does not mean testamentary capacity
The General Rule is: All juristic and natural persons, born or unborn,
are competent to inherit either testate or intestate regardless of their
legal capacity.
This is our starting point when looking at the capacity to inherit.
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
PERSONS CAPABLE OF INHERITING
• A natural person, irrespective of their age, mental or legal standing, has the
capacity to inherit.

• In other words, a natural person is capable of acquiring a vested right to an

inheritance.

• It is important to not confuse vested right to an inheritance and a right to enjoy

the inheritance.

• The capacity to inherit is the ability of the beneficiary to acquire a vested right
regardless of whether the beneficiary can enjoy an inheritance.
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
For example:

 Damien is a 13-year-old boy who inherited a BMW from his father. Damien is
a natural person, i.e. he is capable of acquiring a vested right to the car
 However, Damien is not of age to have a driver’s licence and drive the car,
therefore his enjoyment of the inheritance is limited because he is only 13.
 Up until he turns 18, Damien will have limited or restricted enjoyment of
the BMW.
 The fact that Damien at this age has limited enjoyment of the BMW does not
eliminate the fact that he has a vested right to the car.
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Section 2D(1)(c):

(1) In the interpretation of a will, unless the context otherwise indicates-

(c) any benefit allocated to the children of a person, or to the members of a class of
persons, mentioned in the will shall vest in the children of that person or those
members of the class of persons who are alive at the time of the devolution of the
benefit, or who have already been conceived at that time and who are later born alive

 Thus, section 2D(1)(c) does not only refer to a beneficiary being alive at the time of
the deceased’s death, but also to the beneficiary being alive at the time of the
devolution of the benefit or having been conceived at the that time and later born
alive.
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
EXTRAMARITAL CHILDREN
 Section 1(2) of the Intestate Succession Act and section 2D(1)(b) of the Wills
Act allow extramarital children the same status as children born within
wedlock (within a marriage or civil union) when it comes to testate and
intestate succession.

 Section 2D(1)(b):
(1) In the interpretation of a will, unless the context otherwise indicates-
(b) the fact that any person was born out of wedlock shall be ignored in
determining his relationship to the testator or another person for the purposes of
a will;
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
CHILD OF UNMARRIED PARENTS
 At common law the child of unmarried parents could not be the intestate heir of his or
her father or paternal blood relations, and the father and paternal blood relations could
not be the intestate heirs of the child.

 The same disqualification did not apply to such a child of the mother and maternal
blood relations.

 This is why the child could be the intestate heir of the mother and maternal blood
relations and vice versa.
LU 4: CAPACITY TO INHERIT AND
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 In the case of an incestuous child, however, the disqualification applied to the mother
and maternal blood relations as well.

 The fact that a child was born from a relationship between unmarried parents is thus no
longer a disqualification in the law of intestate succession it can be accepted that this
also covers children born of an incestuous relationship
LU 4: CAPACITY TO INHERIT AND
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THE POSITION OF ADOPTED CHILDREN
 The position of the adopted child in the law of intestate succession had to be
specifically regulated by legislation.

 On the one hand the adopted child is regarded for all purposes as the natural child of
his or her adoptive parents.

 The adopted child can thus be an intestate heir of the adoptive parents and their blood
relations, and the adoptive parents and their blood relations can be the intestate heirs of
the adopted child.
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
 All links between the adopted child and his or her natural parents and their blood
relations are terminated by an adoption order.

 The adopted child can thus not be an intestate heir of his or her natural parents and
their blood relations and the natural parents and their blood relations cannot be the
intestate heirs of the adopted child.

 However, an important exception to the latter rule is that in terms of this the links
between the natural parent and the adopted child are not broken if the natural parent is
also the adoptive parent of that child or was married to the adoptive parent at the time
of adoption
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
Class bequests:
Someone makes a bequest to a general class.
-For example, a grandfather bequeaths his assets to his Grandchildren (the class of people
is his grandchildren) Only those alive or conceived at the time the benefit becomes
available may inherit.

-Statutory representation: section 2C Wills Acts, instances where:

 -the beneficiary predeceases the testator (ref unit 1)
 -where the beneficiary is disqualified from inheriting
 -where the beneficiary repudiates the benefit
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
Unworthy persons :
 -the “bloody hand rule”: de bloedige hand neemt geen erf. Someone who intentionally
and unlawfully causes the death of the deceased (Or the conjunctissimi) may not inherit
from their estate.

 Common law: someone who also negligently causes the death of the deceased is also
unworthy to inherit – Casey v The Master.

 Hiding or destroying a will : constitutes a crime in terms of section102(1)(a) of the

Administration of Estates Act.
LU 4: CAPACITY TO INHERIT AND
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 -What is the effect on the inheritance if a will has been intentionally hidden or
destroyed? (Yassen v Yassen- court did not reach any conclusion)
 Forging a will: Pillay v Nagan – someone who forges a will is disqualified from
inheriting. (when a will is forged the testator’s animus testandi is not present)
 Enrichment through crime: Ex parte Steenkamp and Steenkamp.
 One needs to consider the issue of causation and specifically whether enrichment is a
direct result of the of the criminal offence
LU 4: CAPACITY TO INHERIT AND
CONTENTS OF A WILL
Pillay v Nagan
 Facts: Concerning the capacity of a person who forged the testator’s will
to inherit. Testator’s son forged her will, appointed himself as sole heir.
 The other children applied for an order declaring the son to be unworthy
to inherit, and that the testator be declared to have died intestate
 Legal question: Does the forging of a will disqualify the forger from
inheriting?
 Judgement: Was proven that the will was forged. No case law, or other
authority for disqualification due to forgery (also not a recognised
common law ground for disqualification).
LU 4: CAPACITY TO INHERIT AND
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Ex parte Steenkamp v Steenkamp
 Testators bequeathed a farm and certain movables to grandchildren – the children’s
father (Steenkamp) murdered the grandparents – was then convicted and sentenced to
life imprisonment.
 One of the grandchildren died thereafter, and so S and wife applied for order declaring
them to be the sole heirs of the child.
 Master raised the question if S was legible to inherit anything in the estate of the child
which had come from his grandparents. Court held him not unworthy to inherit from
the child
 Legal question: Can Steenkamp inherit anything in the child’s estate which had come
from the grandparents whom he had murdered?
LU 4: CAPACITY TO INHERIT AND
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 Judgement: It is not general unworthiness which attaches to a murderer – a
person may be unworthy to inherit from one person, but still able to inherit
from another – the fact that a person has a bad character or has behaved
badly does not mean that such a person is not entitled to inherit.

 NB: the courts look at the conduct of the person towards the testator in order
to determine the person’s unworthiness to inherit.
 Court found in casu that there was no causal link between S murdering the
testators and inheriting from the grandchild  the cause of S’s enrichment
was the birth and death of the child, and not the murder
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Leeb v Leeb
 Facts: Applicant sought an order declaring that first respondent was not entitled
to benefits resulting from death of her husband in community of property,
particularly certain insurance policies and her half share of the joint estate.
 While first respondent denied any involvement in death of deceased (she had
been convicted of his murder and her applications for leave to appeal had been
refused), she did not seek to claim the benefits under the insurance policies but
argued that she was entitled to her share in the joint estate since she was entitled
thereto as a result of her marriage to deceased in community of property and the
benefit thereof was not causally related to death of deceased.
 She would be entitled to her share irrespective of whether or not she had
murdered the deceased.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

 Held, issue was whether the precedents on which first respondent relied were
correctly decided.
 The old authorities made no mention of a spouse who had murdered the other
spouse being deprived of his share of joint estate in marriage in community of
property.
 At common law the rule that no one may benefit from his unlawful act due to
his unworthiness, iswell-established.
 There seems to be no good reason not to extend this principle to the benefits
of marriage in community of property. In divorce a spouse whose fault has
caused termination of the marriage forfeits benefits of the joint estate.
Benefits flowing from dissolution of joint estate on death of a spouse
approximate legacies and donations mortis causa.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

 The person upon whom the testator’s inheritance devolves is known as a beneficiary.
Beneficiaries are further divided into heirs and legatees.
 When the testator gives you a particular asset (a red Ferrari or 50 000 euros) theses are
called legacies (a particular asset)
 The person who receives the item is known as a legatee.
 An heir is a beneficiary who inherits a testator’s entire estate or a portion or a residual
of that particular estate.
 If a testator leaves their entire estate to a beneficiary, that person is known as a sole
heir. Why is there a distinction between an heir and a legatee?
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Bequests
 Absolute bequest: contains no conditions, vesting of rights takes place at the testator’s
death.

 Bequests subject to a time clause- refers to a bequest that is subject to a certain future
event or until a certain condition has been met.

 Resolutive condition: bequest is made and later terminated if an uncertain event arises,
for example, someone who is prepared to buy a house but then is unable to acquire the
sufficient financing (mortgage financing) for the house.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

 Another example: someone can claim their benefit, but should they fall pregnant
before a certain age then the clause is null and void (cannot claim)

Suspensive v resolutive:
 Resolutive condition: bequest is made and later terminated if an uncertain event arises

 Suspensive condition: beneficiary only obtains a right if an uncertain future event

takes place.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Conditions and dies

 A bequest made by a testator may be made with or without conditions or subject to a
dies.

 A bequest is deemed to be conditional if the bequest is linked to the occurrence of an

uncertain future event.
 However, if it becomes apparent that the said event will take place at some or other
time it would mean that the testator’s bequest is not conditional but is subject to a time
clause or dies
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Modus
 In certain instances, a testator may bequeath an inheritance or legacy that places a burden (or
modus) on the recipient to do something or not to do something, or to deliver something.

 Just as in the case of any other testamentary stipulation, the will be regarded as modus pro non
scripto contra bonos mores if it is unlawful, or impossible to perform.

 There is the choice to either accept or reject the benefit

 Example: I bequeath my farm to my son X (appointed beneficiary) and he has to pay his sister Y
(favoured beneficiary) R100 000 - The son is not allowed to accept the bequest without the
accompanying obligation, the rights vest subject to the dies cedit performance of the obligation,
sister has a right against her brother.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

SUBSTITUTION
 Testator appoints a beneficiary to inherit and at the same time appoints another
beneficiary to take their place.

 This means that the testator makes provision for the instances where their beneficiary
may not be able to inherit and so they choose someone else to inherit should that be the
case.

 Direct substitution: Where one indicates a beneficiary and an alternative (occurs if the
testator nominates a beneficiary as well as a substitute for the instituted beneficiary in
case that instituted beneficiary cannot or does not wish to inherit)
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Fideicommissum:
 Where the same property is inherited by a succession of beneficiaries: “My house goes to my
son. Upon his death, it must go to his daughter. Upon her death, it must go to her children”
 Fideicommittens - person who receives the benefit and then passes it on to the (son)fiduciary
 Fiduciary - has a fiduciary duty (daughter)
 Fideicommissary - the benefit goes to a further beneficiary (children) presumption against
fideicommissum- this means that if whether a clause relates to direct substitution or whether a
clause is a fideicommissum is indeterminable the presumption is that it is not a
fideicommissum.
 If there is any doubt in a specific case as to whether direct or fideicommissary substitution is at
issue, the presumption is that the intention was to create a direct substitution.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

Fideicommissum
Legal position of fiduciary:
They will have:
 -Use and enjoyment of property
 -Ownership transfers, but no right to transfer the property (why? Because it is restricted
as per the act- ref above)

 -May be entitled to compensation for expenses incurred (useful and necessary for the
property for example)
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

USUFRUCT
 Ownership of assets bequeathed to one person, right to use and enjoy bequeathed asset
given to another person.
 A usufruct can be created for movable things, immovable things, and even so- called
incorporeal things (such as shares). A proper usufruct, however, cannot be constituted
for consumable things; in such a case one can talk only of a usufruct.
 With a usufruct the ‘usufructuary’ becomes the owner of the things, but quasi quasi
with the obligation to restore things of the same quantity and quality to the ultimate
owner.
LU 4: CAPACITY TO INHERIT AND CONTENTS
OF A WILLEDOM OF TESTATION

TRUSTS
 When we deal with trusts, we are trying to separate the ownership and the
benefit of a particular object.

 Definition: Where the ownership of property is bequeathed to a person for the

benefit of another person or an object.

Duties:
 -Must always act in the best interests of the beneficiaries Section 9(1) Trust
Property Control Act outlines the trustee’s duty of care
 Some duties found in will stipulated by the testator; others may be statutory
LU 4: CAPACITY TO INHERIT AND CONTENTS
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Rights
 Personal right against the trustee, claim fulfilment of duty if trustee does not adhere to
their fiduciary duty.

 Rights differ according to different kinds of trusts