313 study unit 2 Flashcards
What does the law of intestate succession determine?
It determines how succession should take place when the testator did not regulate succession through a valid will or pactum successorium.
When does a person die intestate?
A person dies intestate when they:
* Do not leave a will at all
* Execute a valid will that becomes wholly or partly inoperative
* Have a valid will that fails to dispose of all assets
* Leave a document purporting to be a will that does not meet legal formalities.
What are the two branches of the law of succession in South Africa?
The two branches are:
* Common law (testamentary and intestate law of succession)
* Customary law (only intestate law of succession).
What is the definition of a descendant in the context of intestate succession?
A descendant includes the lineal descendants (downwards line) of the deceased.
What is an ascendant in the context of intestate succession?
An ascendant refers to the ancestors of the deceased, or anyone in the ascending line of relationship.
Define collateral in the context of intestate succession.
Collateral refers to a person related to the deceased because they share a common ancestor, such as a full or half-brother.
What does the term ‘sarp’ refer to in intestate succession?
Sarp refers to a line of descendants of common ancestry, including every descendant of the deceased who survives or a predeceased descendant who leaves living descendants.
What happens in succession by representation?
In succession by representation, a descendant of a predeceased heir moves up into the place of the predeceased heir.
Who inherits if the deceased is not survived by a spouse, descendant, parent, or descendant of a parent?
The nearest blood relation inherits.
How can a deceased die in terms of testamentary status?
A deceased can die testate, intestate, or partly testate and partly intestate.
What is the significance of the case Harris v Assumed Administrator?
It determined that intestacy could happen at different points based on the validity of the will and the date when it became inoperative.
What changes did Section 1(2) of the Intestate Succession Act bring about regarding illegitimate children?
It allows any child to inherit intestate from both parents regardless of their circumstances of conception.
What is the legal status of a child born through surrogacy?
If a valid surrogacy arrangement exists, the child is seen as the legitimate child of the commissioning parent(s) and inherits from them.
What is the ‘nasciturus fiction’ in the context of intestate succession?
It refers to the principle that an unborn child is capable of inheriting if conceived at the time of the devolvement of the benefit.
What was ruled in Bhe v Magistrate Khayelitsha regarding the Intestate Succession Act?
The Constitutional Court declared section 23 of the BAA unconstitutional and extended the Intestate Succession Act to customary law.
What did the court find in Bwanya regarding life partners?
The court confirmed that excluding life partners from the definition of ‘spouse’ in the Intestate Succession Act is unconstitutional.
What is the effect of adoption on a child’s inheritance rights?
Adoption terminates all rights and obligations between the child and their natural parents, making the child the legal child of the adoptive parents.
What happens if a black person dies intestate and maintained an African customary lifestyle?
The estate would devolve according to section 23 of the BAA if they died before 27 April 1994, or according to the Intestate Succession Act if they died after.
What are the rules of intestate succession under the Intestate Succession Act?
The order of intestate succession includes:
* By spouse(s) only
* By descendant(s) only
* By spouse(s) and descendant(s).
What is the ‘child’s portion’ in intestate succession?
The child’s portion is calculated by dividing the deceased estate by the number of surviving children and predeceased children who left descendants.
How does marital regime affect inheritance under intestate succession?
The surviving spouse’s share of the joint estate or accrual does not form part of the intestate estate of the deceased.
True or False: Unborn children can inherit if they are not born alive.
False
What is the initial deduction from the estate of the deceased?
The amount entitled to the surviving spouse will first be deducted from the estate.
How is the balance of the estate distributed after the spouse’s deduction?
The balance will be distributed among the surviving spouse and the descendants.
What do multiple spouses inherit from the deceased’s estate?
Each surviving spouse will inherit the greater of a child’s portion or a fixed amount of R250 000.
What happens if the estate’s assets cannot provide each spouse with the fixed amount?
The estate will be equally divided among the surviving spouses, and the descendants will receive nothing.
Who inherits when the deceased is survived only by both parents?
Both parents inherit the intestate estate in equal shares.
What types of parents are included in the definition of ‘parents’ for inheritance?
Biological, adoptive, and commissioning parents are included, but step-parents are excluded.
How is the estate divided if the deceased is survived by one parent and descendants of a predeceased parent?
The surviving parent inherits half of the estate; the descendants of the deceased parent inherit the other half.
What occurs if the deceased is not survived by a spouse, descendant, or parents?
The estate will be divided among the descendants of the deceased’s parents.
How is the estate divided among the descendants of the deceased’s parents?
The estate is divided into halves, going to each parent’s side, then to descendants by representation per stirpes.
What is the inheritance rule for full and half-siblings?
Full siblings take shares from both halves; half-siblings take from the half of the estate of their related parent.
Who inherits if the deceased is survived only by descendants of one parent?
Those descendants are the sole heirs.
What happens if no spouse, descendant, parent, or blood siblings survive the deceased?
The nearest blood relation inherits per capita.
What is the degree of relation for a mother or father?
1st degree.
What is the degree of relation for a grandmother or grandfather?
2nd degree.
What is the degree of relation for an aunt?
3rd degree.
What is the degree of relation for a cousin?
4th degree.
What does section 1(7) of the Intestate Succession Act state regarding disqualified heirs?
If disqualified or renounced, the benefit devolves as if they predeceased the deceased.
What happens if a person repudiates an inheritance?
The repudiating heir’s share will go to the surviving spouse or other heirs.
What was declared unconstitutional in Bhe v Magistrate Khayelitsha?
The principle of male primogeniture in African customary law.
When did the Reform of Customary Law of Succession Act come into force?
20 September 2010.
What does section 2(1) of the Reform of Customary Law of Succession Act state?
The estate of any person subject to customary law does not devolve according to intestate succession.
What is included in the definition of ‘descendant’ under section 1 of the RCLSA?
A person accepted by the deceased as their own child.
What rights does section 4 of the RCLSA grant to women living under customary law?
The right to dispose of house property through a will.
What is the distinction made in customary succession?
General succession (to general status) and special succession (to head of different houses in a polygynous household).
What is the general principle regarding succession to status in customary law?
Succession to status is limited to males.
What is the principle of male primogeniture?
A male is succeeded by his first-born son in a particular house.
What is the preference order in succession?
Descendants over ascendants, ascendants over collaterals.
