August Succ capacity to inherit

Question 1

what is the general rule?

Answer 1

2. GENEARL RULE = ALL PERSONS (NATURAL, JURISTIC, BORN OR UNBORN) HAVE THE CAPACITY TO INHERIT

Question 2

do minors have capacity to inherit

Answer 2

• Have the capacity to inherit but the ability to ENJOY the inheritance is limited
• property forms part of the minor’s estate, it’s regarded as being the minor’s, administered by the guardian on his behalf
• differs moveable/immovable

Question 3

what happens with minors movable property

Answer 3

• The minor’s capacity to exercise rights of ownership = limited.
• vested right to the property when the deceased dies.

Question 4

Movable property: what happens if the minor dies after the deceased

Answer 4

Should the minor die after the deceased:
• The property will form part of the minor’s estate and will be transferrable to their heirs unless there is a contrary indication in the deceased’s will.

Question 5

what happens when a minor inherits money?

Answer 5

If money is left to the minor:
•minor = a vested right to the money BUT it will not be physically given to the minor.
• Money will also not be given to the guardian.
•The Administration of Estates Act: Guardian’s Fund.
• minor’s guardian = withdraw money from the fund to take care of the minor’s maintenance.
• The Master = “without the sanction” of a court if the amount required “exceeds the amount determined by the Minister from time to time by notice in the Gazette of the capital amount received for account of the minor.”
• At present the amount is R250 000.

Question 6

what happens to minors with IMMOVABLE property

Answer 6

• Not transferred to a minor’s guardian, but it is immediately registered in the minor’s name in the Deeds Registry.
• This does not mean that minor can sell, cede or mortgage the property.

Question 7

what does the AEA say with regards to a minors IMMOVABLE PROPERTY

Answer 7

• AEA:
• minor’s guardian will administer the property for the minor until they become a major.

If the guardian wants to sell or mortgage the property:
1. Obtain authorisation.
2. Value of the property mortgaged does not exceed the amount determined by the Minister (R250 000):
• Master’s consent is sufficient.
• If it does exceed the amount:
• There must be an order of the High Court.

Question 8

what are the requirements for the nasciturus fic/ unborn child TESTATE

Answer 8

1. apply 2D(1)(c) Wills Act unless otherwise indicated in Will
2. Child must have been CONCEIVED at the time of the DEVOLUTION of the benefit
3. Subsequently born ALIVE

Question 9

what are the requirements for the nasciturus fiction INTESTATE

Answer 9

1. Child must have been CONCEIVED at the time of the DEVOLUTION of the benefit
2. Inheritance to the ADVANTAGE of the unborn child
3. Subsequently born ALIVE

Question 10

illegitimate children

Answer 10

• Both under 2D(1)(b) Wills Act and 1(2) ISA have the capacity to inherit.
• not treated differently under the law

Question 11

what happens with people of unsound mind

Answer 11

• GENERAL RULE : capacity to inherit but your enjoyment restricted.
• court may appoint a trustee or curator bonis to administer the property on your behalf.

Question 12

who has the onus of proving that a person is of unsound mind

Answer 12

• Have to apply to get the person declared of unsound mind – onus is on the person alleging unsound mind. Have to prove BOP that the beneficiary is unable to administer the estate in a sensible manner

Question 13

what happens to an insolvent person

Answer 13

• Retain the capacity to inherit but any property that they own falls into the insolvent estate and must be administered by the trustees for the benefit of the creditors.
• The property will most likely have to be sold and the creditors paid in order of preference mentioned in the Insolvency Act.
• Therefore, in some wills = a testator stipulates in their will that if any of their heirs become insolvent or provisionally insolvent at the time of the devolution of the inheritance, the heir concerned will forfeit the inheritance in favour of a named substitute or a trust.

Question 14

can juristic persons inherit

Answer 14

• Intestate Succession: Only natural persons can inherit.
• But there is nothing precluding a testator from nominating a company or CC as a beneficiary in a will.
• Therefore, the right to claim the inheritance will vest in the company or CC unless the authorised company director or CC member repudiates the inheritance.

Question 15

what is the common laws position on who cannot inherit

Answer 15

No one can benefit from their own wrongdoing
- You cannot take a benefit if there is a causal link between the crime and the benefit.

o Requires causation between the wrongdoing and the benefit.

Question 16

what did ex parte steenkamp say about causation between wrongdoing and benefit

Answer 16

Court said the test is whether the benefit is the direct result or the ordinary, natural, reasonably foreseeable consequence of the act?
the court said that the cause of the benefit is the birth and death of the child and there was a break in the chain of causation.

Question 17

what did Danielz v de Wetz say

Answer 17

Even if you didn’t foresee the consequence of death

Question 18

explain:de bloedige hand en neemt geen erffenis

Answer 18

A person who kills the deceased or conjunctissimi of the deceased cannot inherit from the deceased.

• even if you assisted/ gave counsel
• maxim is absolute
• applies to negligent and intentional killings

Question 19

which case deals with negligent killing

Answer 19

• Casey v the Master: husband negligently shot & killed his wife who he was married to in community of property. Convicted of culpable homicide. Can he benefit under the will?
• NO! Disqualified from inheriting but could take share of joint estate.
• So even if acted negligently can be disqualified from inheriting.

Question 20

what happened in Leeb v Leeb

Answer 20

• Leeb v Leeb When one spouse murders the other, court has the power to order a forfeiture of the benefits of marriage in community of property.
Here the court extended the maxim to cover benefits of ICP.
Prove on a balance of probabilities and merely showing criminal conviction is not sufficient.

Question 21

when you kill someone are you automatically disqualified from inheriting

Answer 21

NO• Must make an application to court that the person is unworthy to inherit

o ONUS on person making the application to show the other person is unworthy to inherit – Casey v the Master
Stems from the general rule which is your starting off point that everyone has the capacity to inherit.

Question 22

what is an indignus

Answer 22

Unworthy person / someone lacking in merit unable to inherit
There is no closed list of Indignus (Taylor v Pim)

Question 23

what did the court hold in Taylor v Pim

Answer 23

for unworthiness: case by case basis
should not limit the list of indignuses
extend to any case where public policy would find someone unable to inherit

held: He was the cause of her fall from an honourable & virtuous life to an immoral and degrading one.