Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:
when the testator has left no valid will or testamentary disposition contained in a valid pactum successorium (e.g., antenuptial contract, gift mortis causa); or when he leaves a will which fails for some or other reason.
Intestacy may be total (applying to the whole of the assets left by the deceased) or partial (applying to a portion only of his assets), for the deceased may die partly testate and partly intestate: for example, if the deceased bequeaths his car to his son but does not mention the rest of his estate.See Ex parte Stephens' Estate 1943 CPD 397.
Intestacy is total when none of the assets are disposed of by a valid will: for example, where there is no will at all, or only a will which is void, or which has been revoked. Intestacy is partial when the deceased has left a valid will which, however, does not dispose of all his assets; in this event there is an intestacy as to the undisposed residue. This may happen in many circumstances: for example,
where the will does not appoint an heir at all, but appoints only legatees, and a residue is left over after the liabilities and the legacies have been satisfied; where the appointed heir(s) fail to succeed; where an heir is appointed to a fractional portion of the estate only, and there is no other disposition of property; where heirs have been appointed, each to a fractional portion of the estate, and the disposition to one of them is a nullity, or one of them fails to succeed to his share.
Furthermore, intestacy can occur if certain conditions in an otherwise valid will are not fulfilled, or if benefits have been repudiated and no provision has been made for substitution, and accrual cannot take place.
History and sources The law of intestacy was virtually codified by the Intestate Succession Act, 1987,Act 81 of 1987. which came into force on 18 March 1988. Before that, the South African system of intestate succession had to be construed from a variety of common-law and statutory rules. The law of intestate succession is rooted in the legislation of the States of Holland: the Political Ordinance of 1 April 1580, as clarified and amended by the Interpretation Ordinance of 13 May 1594 and Section 3 of the Placaat of 18 December 1599.
In 1621 the Heeren XVII of the Dutch East India Company instructed the government of the Dutch East Indies to enforce these enactments, and the States-General decreed them to be in force in Cape Colony by the Octrooi of 10 January 1661, which was confirmed by Governor Pasques de Chavonnes on 19 June 1714.
The main common-law principles of intestacy were derived from a combination of two systems, somewhat in conflict, which prevailed prior to 1580 in the Netherlands: the aasdomsrecht, the law of North Holland and Friesland, which meant "the next in blood inherits the properties", and the schependomsrecht, the law of South Holland and Zeeland, which meant "the properties return to the line whence they came".J.A. Schiltkamp, "On Common Ground: Legislation, Government, Jurisprudence, and Law in the Dutch West Indian Colonies in the Seventeenth Century", A Beautiful and Fruitful Place: Selected Rensselaerwijck Papers, vol. 2 (Albany: State University of New York Press, 2011), 228. Under both systems, the property of an intestate person went to the deceased's blood relations only: in the first place, to his descendants; failing them, to his ascendants and collaterals. There were several important differences in the manner of devolution.
The 1580 Ordinance adopted the schependomsrecht distribution per stirpes, restricting it in the case of collaterals to the fourth degree inclusive. Finally, the 1599 Placaat compromised between the two systems with respect to distribution, and gave one half of the estate to the surviving parent, and the other half to the descendants of the deceased parent.Grotius 2.28.Van Leeuwen CF 1.3.16.
The above laws conferred a right of succession on intestacy on the deceased's blood relations, but none on a surviving spouse or an adopted child, and furthermore restricted the intestate succession rights of the extra-marital child. Because marriage in community of property was the norm, such a spouse ipso facto took half of the joint estate.
Initially, the word spouse in the Intestate Succession Act, 1987 was restrictively interpreted to mean only those spouses who had contracted a marriage in terms of the Marriage Act, 1961.Act 25 of 1961. This interpretation has since been extended by case law, in recognition of the modern perception that there is a need to protect the interests of surviving spouses. The common law, as derived from the two different systems that applied in Holland, has been adapted on numerous occasions by legislation. The most important such legislation was probably the Succession Act, 1934,Act 13 of 1934. in terms of which the surviving spouse, whether married in or out of community, was granted a right to a share in the intestate estate of the deceased spouse.
The Intestate Succession Act, 1987 instituted a much simpler system of intestate succession, revoking common-law rules and all statutory adaptations in their entirety. The Intestate Succession Act, 1987, together with the Children's Act, 2005, extended the categories of persons who may be heirs who take in intestacy. For example, all natural persons, irrespective of whether they are adopted or extra-marital, or conceived by artificial insemination, or born as a result of a surrogacy arrangement, nowadays have the capacity to inherit.
The Intestate Succession Act, 1987 applies, except as explained below, in all cases where a person dies wholly or partially intestate after 18 March 1988. Under the Act, the surviving spouse and the adopted child are heirs of the deceased. The historical discrimination visited on extra-marital children has disappeared. The position of adopted children is now dealt with in the Child Care Act, 1983.Act 74 of 1983.
Until recently, the application of the Intestate Succession Act, 1987 was regulated on a racial basis. Certain intestate estates of African people were distributed according to the "official customary law," as entrenched in the Black Administration Act, 1927 and its regulations, while the Intestate Succession Act, 1987 applied to the rest of the population. The Black Administration Act, 1927, and the Regulations passed thereunder, provided that the estates of black people who died without leaving a valid will sometimes devolved according to "Black law and custom." This meant, inter alia, that the reforms introduced by the Intestate Succession Act, 1987 did not apply to spouses married in terms of African customary law. As far as children were concerned, the parallel system of African customary law of succession perpetuated discrimination against adopted, extra marital and even female children.
This racial disparity in the treatment of spouses and children disappeared when the Constitutional Court, in Bhe v Magistrate, Khayelitsha, extended the provisions of the Intestate Succession Act, 1987 retrospectively, as from April 27, 1994, to all intestate heirs, irrespective of race.
While the Intestate Succession Act, 1987 is important, one cannot discount case law when determining the rules of intestate succession. If and when the RCLSA is promulgated into law, it, too, will be relevant for determining South Africa's intestate-succession laws.
Computation of kinship
Blood relations Descendants are persons who descend directly from another person, such as children, grandchildren, great-grandchildren, etc. Ancestors are persons from whom the person is directly descended, like parents, grandparents, great-grandparents, etc. Ascendants are ancestors and collaterals. Collaterals are relatives descended from the deceased's ancestors but not in the direct line of descent, i.e., neither ancestors nor descendants—such as siblings, aunts and uncles, nieces and nephews, etc. Collaterals can be full- or half-blooded. A full-blood collateral has two ancestors in common with a person; a half-blood collateral has only one. A sister, therefore, is a full-blood collateral—she has both parents in common with her sibling—but a half-sister is only a half-blood collateral, since she has only one parent in common. If, in other words, Boucher and Cronje are descendants of Abel—that is, if Abel is an ancestor of Boucher and Cronje—Boucher and Cronje are full-blood collaterals. Collaterals can be first-, second- or third-line. First-line collaterals are the descendants of the deceased's parents, i.e., the deceased's siblings and nieces and nephews. Second-line collaterals are the issue of the grandparents not including the parents, which includes uncles and aunts, and first cousins. Likewise, third-line collaterals are the issue of great-grandparents not including grandparents and parents, and so on.
Distribution scheme
South Africa uses the Roman-Dutch parentelic system to reckon kinship and determine distribution in intestacy. The term parentela refers to a particular parental group and its descendants:
First parentela consists of the deceased and his descendants. Second parentela consists of the deceased's parents and their descendants (first-line collaterals). Third parentela consists of the deceased's grandparents and their descendants (second-line collaterals). Fourth parentela consists of great-grandparents and their descendants (third-line collaterals).
And so the parentelae go on. Essentially, the lowest parentela wins and takes the entire estate, and parentelic heads trump others within the same parentela.
A stirp may be translated literally as a branch. In the present context, therefore, it includes the surviving child of a deceased, as well as a predeceased child survived by descendants.
When determining how many stirpes there are, one should pay attention to the immediate descendants of the deceased and then see if they are alive or if their descendants are alive.
Representation arises when an heir cannot, or does not wish to, inherit from the deceased. In this case, the descendants of the heir may represent the heir to inherit.
Effect of marital regimes If the deceased is married at the time of his death, the property system that applies to his marriage is of utmost importance since it affects the distribution of the deceased's estate. In terms of the Recognition of Customary Marriages Act, 1998 and the Matrimonial Property Act, 1984, the first marriage of a male with more than one wife is always considered to be in community of property. If a second marriage is entered into, the parties must enter into an antenuptial contract, which will regulate the distribution of the estate.
Essentially, there are four forms of marital regimes recognised by the courts:
community of property (Afrik gemeenskap van goed); community of profit and loss (Afrik gemeenskap van wins en verlies); separation of property (Afrik skeiding van goed); and the accrual system (Afrik aanwasbedeling).
With regard to marriages in community of property or in community of profit and loss, the surviving spouse automatically succeeds to half of the joint estate (communio bonorum); the remaining half devolves according to the rules of intestate succession.
With regard to marriages in separation of property,Statutory language: "out of community of property and not subject to accrual" the entire estate devolves according to the rules of intestate succession.