class notes: 15.02.2017

EXAMPLE 2

H ---- W

/ \

S D

H DIES – ESTATE = R325 000,00

WIFE → CHILD’S SHARE = R325 000,00 ÷ 3 = R108 333,33

OR R250 000,00

→ R75 000,00

SON  → R37 500,00 } RESIDUE

DAUGHTER   → R37 500,00 }

NO SPOUSE, NO DESCENDANT – BUT :

(i) BOTH PARENTS → BOTH PARENTS → ½ EACH

(ii) ONE PARENT →

→ SURVIVING PARENT → ½

→ DESCENDANTS OF DECEASED PARENT → ½

(SIBLINGS)

IF NO DESCENDANTS, THEN DECEASED’S PARENT’S ½ GOES TO SURVIVING PARENT i.e. SURVIVING PARENT GETS ALL.

EXAMPLE :

M ---- F

/ \

X Y Z

EXAMPLE 1 X DIES → M + F INHERIT ½ EACH

EXAMPLE 2 X DIES but F PREDECEASED

M → ½

F’s ½ → Y + Z

Y → ¼

EXPLANATION OF SIBLINGS, HALF SIBLINGS, STEP SIBLINGS

VICTOR + ANNA           THOMAS + MARY

  /                                                      / \

    LINDA  SUE SALLY

ANNA + THOMAS

/ \

CAROL CLAIRE

LINDA = ½ SISTER to CAROL & CLAIRE (SAME MOTHER)

SUE & SALLY = ½ SISTERS to CAROL & CLAIRE (SAME FATHER)

LINDA, SUE & SALLY = STEP SISTERS – NO BLOOD RELATION

•Where the deceased was a spouse in a polygamous marriage (had more than one customary wife) and left no descendants: Polygamous marriages are usually out of community of property.

A………….B

/   |  /

C  E  D

•A & B = parents of the deceased; E = the deceased; C and D = customary marriage spouses of the deceased.

In terms of section 1(1)(a) of Act 81 of 1987, as amended by the Constitutional Court decision in Bhe and Others v Magistrate Khayelitsha and Others, the two spouses of the deceased (C and D) will inherit the estate in equal shares, to the exclusion of any other family members.

Note the following: A question that needs to be answered is: “Who is a spouse for purposes of intestate succession?”

 a) As starting point it can be said that any party to a valid marriage in terms of the Marriage Act, 25 of 1961 (a civil marriage) is regarded as a spouse for purposes of intestate succession.

Where the deceased was a spouse in a monogamous marriage (only one spouse), was married out of community of property, and left no descendants: Amount available for distribution: R400 000

A  B

  |  /

C  E  C

E = deceased: S = spouse: A = father: B = mother: C = brother

Solution: The surviving spouse is the only intestate heir, irrespective of the value of the estate. Because the deceased and surviving spouse were married out of community of property, the surviving spouse will inherit the whole balance for distribution in the amount of R400 000 in terms of section 1(1)(a) of the Intestate Succession Act 81 of 1987.

OUT OF COMMUNITY WITH AN ACCRUAL SYSTEM

H and W married out of community of property with an accrual. During the marriage H’s estate showed an accrual of R200 000- R350 000. while W’s estate showed an accrual of R100 000-R200 000. in terms of the matrimonial property law W has a claim to half of the difference of the accrual that is R75 000 against H’s estate.

The remainder of H’s estate available for distribution therefore amounts to R275 000. in the case of child’s portion W inherits 125 000 and the remainder divided amongst H’s descendants.

UNWORTHINESS FOR INTESTATE SUCCESSION

Someone could qualify as an intestate heir but because of certain factors he would still be unable to benefit. He is therefore considered to be unworthy. E.g. a person who murdered the deceased.

The Act stated that the person who is unworthy to inherit from an intestate estate may not be represented, however this was deleted. S1(7) of the Act now stipulates any benefit that the unworthy person would have obtained had he not been unworthy, devolves as if he had died. Therefore an unworthy person may be represented.

RENOUNCEMENT BY INTESTATE HEIR

S1(6) if a descendant of a deceased, excluding a minor or mentally ill descendant, who together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.

THE POSITION OF THE ADOPTED CHILD

Please do make it a point that you read on this.

Look at the following:-

I.The common law position.

II.Sec 20 (1) & (2) Child care Act 74 of 1983, compare it with

III.Sec 242 children's Act 38 of 2005

Also look at Sec 17 child care Act… find all of this and more on Page28-32

THE POSITION OF THE EXTRA-MARITAL (ILLEGITIMATE) CHILD

I.Common law position.

II.Sec 1(2)  of the Intestate Succession Act

III.Case law re Moatsi se Boedel 2002 (4) SA 712