The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased's estate. It forms part of private law.
The manner in which assets are distributed depends on whether the deceased has left a valid will or other valid document containing testamentary provisions, such as an antenuptial contract. If the deceased has not left a valid will or valid document containing testamentary provisions, the deceased dies intestate; similarly, if the deceased leaves a valid will which does not dispose of all property, there is an intestacy as to the portion not disposed of. In the event of intestacy, the assets are distributed in a definite order of preference among the heirs, as stipulated by the Intestate Succession Act, 1987.Act 81 of 1987. Until recently, the Act (and its common-law precursor) existed side by side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end when the Constitutional Court, in Bhe v Magistrate, Khayelitsha, made the Intestate Succession Act applicable to all.
Where the deceased dies leaving a valid will, the rules of testate succession apply. These are derived from common law and the Wills Act, 1953.Act 7 of 1953. Testate succession is governed by the general premise that the assets of the deceased are distributed in accordance with the provisions of the will. If specified property is left to a person, the disposition is termed a "legacy." Legacies are distributed first; any residue in the estate is given to the person, if any, who is appointed as heir. If the will appoints more than one heir, the residue is divided among them.
Dual character The law of succession comprises two branches, namely the common law of succession and the customary law of succession. These enjoy equal status and are subject to the Constitution of South Africa and other legislation. The common law of succession is divided into the testate law of succession and the intestate law of succession, whereas the customary law of succession only operates intestate.
Conflict of laws There are various rules for determining whether the common-law rules or the customary-law rules are applicable:
The common law of succession applies to testate succession except if a testator, living under customary law prescribed otherwise in his or her will or if a court decides otherwise. The Intestate Succession Act applies to all intestate estates irrespective of the cultural affiliations of the deceased.
Succession may take place in three ways:
in accordance with a valid will (testamentary succession); through the operation of intestate succession (without a valid will); and in terms of a succession agreement (pactum successorium) contained in a duly registered antenuptial contract or a gift mortis causa.
Scope of succession The capacity to have rights and duties is called legal subjectivity, which is terminated by death. The consequences of the termination of legal subjectivity are as follows:
The subject is known as the deceased. If the deceased has a valid will, he or she is known as a testator or testatrix respectively. The deceased's estate—all of the deceased's assets and liabilities—is gathered together. The deceased's debts and administration costs are paid. The remainder of the assets then pass to persons qualified to succeed him.
When a person dies, everything remaining of his assets (once debts, obligations and administrative costs have been reclaimed) passes by inheritance to those qualified to succeed him.
The law of succession is the totality of the legal rules which control the transfer of those assets of the deceased which are subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of disposal.
If there is a valid will which sets out the wishes of the testator, the estate is administered in terms of the law of testate succession.Wills Act 7 of 1953. A will is a unilateral declaration regarding how the estate is to be apportioned. A person may make also bequests in terms of an ante-nuptial contract. Both natural and juristic persons may be beneficiaries in terms of a will.
If there is no will, or if the will is invalid, the estate devolves in terms of the law of intestate succession.See Intestate Succession Act 81 of 1987.
Ground rules for succession There are a few requirements (with exceptions) that must be fulfilled before the rules of succession can come into operation:
The testator must have died. There must be a transfer of rights or duties with regard to the estate or the status of the deceased, depending on the nature of the succession rules (common law or customary law). At the time of dies cedit, the beneficiary has to be alive or have been conceived. The beneficiary must be competent to inherit. (According to the Dutch rule de bloedige hand neemt geen erf a person convicted of either the murder or culpable homicide of the testator is not eligible to inherit.)
Person must have died In both the common and customary law of succession (in the case of property), a prerequisite for succession is that the owner of the estate must have died. In customary law, succession to status positions takes place only on the death of a family head, while the deaths of another family member does not give rise to succession to his or her status. The application of the rule is illustrated in Estate Orpen v Estate Atkinson.1966 (4) SA 589 (A).
Although the requirement of the death of the testator seems so obvious, it is not always a simple matter. There are various examples of situations where the application of the rule has been problematic or deviated from.
Presumption of death The first exception to the rule that a person must be dead before succession can occur, is where a court pronounces a presumption of death and makes an order for the division of the estate. Those who allege that a person is dead have to prove it. Where the body is present and can be identified, death can easily be proved. However, where a person has disappeared and a body has not been found, death is difficult to prove. Only when a court makes a presumption of death order can the disappeared person's estate be administered. Because it is possible that the deceased might still be alive, this case constitutes an exception to the rule that he or she must be dead before succession can occur. For this reason, it is also customary for a court to order that the estate of the person presumed to be dead should be distributed amongst his heirs subject to the provision of security that the estate can be returned to him should he reappear. Factors which a court may take into consideration in making such an order include the length of time that the person has been missing, the age, health and position in society of the missing person, as well as the circumstances of the disappearance. The principles applicable to judicial presumption of death have been reviewed in detail by the higher courts.Re Beaglehole, Ex parte Engelbrecht, Ex parte Rungsamy, Ex parte Govender, Ex parte Pieters and Ex parte Stoter.
Beneficiaries must be alive at the time of the testator's death, unless the testator makes provision for the benefit of persons born later. Death is proved by reporting the death to the Master and obtaining a death certificate signed by a medical practitioner. This is important: Without proof of death, the estate cannot be administered, and one's affairs cannot remain indefinitely in limbo.
In such circumstances, a person may approach the High Court for an order, granted on a balance of probabilities, presuming the death of another person. The effect of the order is to create a rebuttable presumption that the specified person is dead. The court may later reverse the order if the presumption is rebutted; it may also order that all persons who received a benefit from the devolved estate return the assets in terms of the law of unjustified enrichment.
If a person cannot get a presumption order, he may apply for an order for administration of the estate. In this case, all beneficiaries must furnish security for the assets received.
Estate massing A second exception to the rule that a person must be dead can be found in the case of estate massing. When estates are massed, the entire estates or parts of the estates of various testators are consolidated into a single economic unit for the purpose of testamentary disposal. The effect of estate massing is that the surviving testator's estate dissolves according to the will of the first-dying whilst he or she is still alive.
Either party to a mutual will may, while both are alive, revoke his or her share of the mutual will with or without communication to the other party. But after the death of one party the survivor may not revoke his or her share of the mutual will where both the following further conditions or circumstances occur:
the mutual will effects a "massing;" and the survivor has accepted some benefit under the will.
The term "massing" will first be explained, then the survivor's election will be discussed, and thereafter effect of the survivor repudiating or accepting benefits respectively will be considered.
Massing is a disposition by the testators in a mutual will of their joined property or of a portion of it in favour of the survivor, giving him or her a limited interest in the joined property, and providing that on his or her death such property is to go to some other person or persons. The limited interest conferred on the survivor is, as a rule, either a usufructuary or a fiduciary interest. For example, the testators leave "all property belonging to us to our children, subject to a usufruct in favour of the survivor;" in this case the survivor acquires a usufructuary interest in the massed property. Or, again, the testators may leave "our joint estate to the survivor, and after the death of the survivor to our children;" in this case the survivor acquires a fiduciary interest.
It will be seen that the effect of massing, if carried out, is to give the survivor one benefit and to deprive him or her of another. The survivor acquires a beneficial interest in the property of the first-dying which otherwise (in the absence of any will) the survivor would not have obtained, but the survivor no longer has the full ownership of his or her own share of the property which otherwise he or she would have retained. The survivor, however, is not bound to allow the mutual will to be carried into effect. If the survivor accepts the benefit, he or she must also accept the loss of an interest in his or her own property; the survivor cannot accept the benefit without its accompanying liability. It follows that the survivor has a choice or election whether to abide by the terms of the mutual will or to repudiate them.
Exercise of election by survivor