class notes 09.02.2017

TESTATE & INTESTATE LAW OF SUCCESSION

Person who dies…. Deceased

•If a deceased has left a will he is referred to as a testator. The deceased estate usually consists of assets and liabilities but only assets pass to the beneficiaries. NB! Not all assets are inherited because, as already mentioned that the assets are first used to settle debts and meet other obligations.•The process by which the estates debts are paid and the assets transferred to the beneficiaries after the testators death is known as the “Administration of the Deceased Estate”•Note that the estate is administered by an executor in terms of the provisions of the Administration of Estates Act 66 of 1965.•If a person dies without leaving a valid will or an antenuptial contract containing provisions for inheritance, or the will that has been left is inoperative, his assets are inherited in accordance with the rules of the law of intestate succession. Intestate Succession Act 66 of 1965•If a testator has left a valid will his estate is inherited wholly or in part according to the rules of the law of testate succession.
•It comprises of the legal rules or legal norms that determine how succession should take place in cases where a testator fails to regulate succession on death by way of a valid will.

a)Descendants: are those who descend directly from the you, e.g. your children, grandchildren and great-grandchildren (persons in the downwards line of the deceased)

b)Ascendant: these are the ancestors of the deceased. those from whom you descend from, e.g. your parents and grandparents.in other words anybody in the ascending (upwards) line of relationship

c)Collaterals: would include brothers, sisters, nieces, nephews, cousin, uncles or aunts. They can be full blood or half blood. Full blood….two ancestors in common and half blood…. Only one blood.
•Deceased parents and their descendants from the second parentella
•The deceased grand parents and their descendants from the third parentella and
•The deceased great parents and their descendants form the forth parentella and so on
•Heirs: refers to people who survive the deceased as beneficiaries who are related to him through blood or marriage including adopted or extra marital child.
•Blood relations: means the relatives of the deceased who can qualify as his heirs.
•Where a person left no will.
•Where he left a will, but it was later declared invalid or inoperative.
•Where he left a valid will, but included conditions which were not fulfilled by his beneficiaries and did not provide for substitutes.

NOTE: IN SA AN ESTATE CANNOT BE DEVIDED PARTLY TESTATE AND PARTLY INTESTATE… THAT LAW DOES NOT APPLY IN SA LAW

Please see: Brunsdon’s Estate v Brunsdon’s Estate 1920 CPD 159 

LAW OF INTESTATE SUCCESSION

(This basically the Law that will determine who a persons heirs are in as much as the person did not do so himself by way of a will or any other legally valid way)

NB: for your own interest please read on the historical background on pg14

Also note that the Act applies to people who died from 1987 on wards.

BASIC CONCEPTS

A persons blood relations can be divided into the following categories:

The term  stirps or stirpes  mean the deceased surviving child or a deceased pre-deceased child. As explained this includes every descendant of the deceased who survives the deceased or a predeceased descendant of the deceased who leaves living descendants.

 e) A parentela can be defined as a particular parental group and its descendants:

•Deceased and his descendants form the first parentella

•Deceased parents and their descendants form the second parentella

•The deceased grand parents and their descendants form the third parentella and

•The deceased great parents and their descendants form the forth parentella and so on.

f) representation: occurs when the place of an heir who cannot or does not wish to inherit is taken by one of his descendants who qualifies.

The ff are the circumstances under which a deceased estate can be distributed in terms of the law of interstate succession: