Chapter 12- Legal developments in the regulation of customary succession and administration of estates

Question 1

What are statutory interventions in the customary law of succession?

Answer 1

1. Testamentary disposition
2. Intestate succession
3. Winding up and administration of black persons’ estates

Question 2

Explain Testamentary disposition in-depth

Answer 2

In original customary law, the total disposition of property by means of a will was unknown. The main reason for this was that the rights and duties were held by the agnatic group. The individual was not the bearer of rights and could not, therefore, dispose of the property of the agnatic group. In modern customary law, however, wills are recognised.

Question 3

What are the provisions for the testamentary disposition of black persons’ property in the Black Adminitration Act?

Answer 3

1. All movable property belonging to a black and allotted to him or accruing under black law or custom to any woman with whom he lived in a customary marriage, or to any house, shall, upon his death, devolve and be administered under black law and custom.
2. All land in a tribal settlement held in individual tenure upon quitrent conditions by a black shall devolve upon his death upon one male person, to be determined in accordance with tables of succession to be prescribed under subsection (10).
3. All other property of whatsoever kind belonging to a black shall be capable of being devised by will.

Question 4

Explain intestate succession in-depth

Answer 4

it is now the law throughout South Africa that illegitimacy is no longer a ground for excluding extramarital children of the deceased from sharing in his/her estate.

Question 5

Explain the winding up and administration of a black person’s estate before 6 December 2002

Answer 5

Section 23 of the Black Administration Act provided that where a black person died, testate, such estate had to be administered by the Master of the High Court. However, should a black person die without leaving a will, the intestate estate had to be administered by the magistrate in whose jurisdiction such a black person resided.

Question 6

Which case decided how the intestate estate of a black person should be wound up?

Answer 6

Moseneneke v The Master of the High Court, 2001

Question 7

Explain the winding up and administration of a black person’s estate from 6 December 2002 to 15 October 2004

Answer 7

The Master of the High Court was empowered to deal with all estates governed by the common law. If a person had died and the value of their estate was below R125K, such estate was dealt with at service points at the magistrate’s office on behalf of and under the direction of the Master. These provision did not apply to the estates of black persons only.

All testate estates in excess of R125k still had to be reported to the Master of the High Curt for administration.

From 6 December 2002, until 15 October 2004, the responsibility to supervise the
administration of the following estates was taken away from the magistrates and could be dealt with only by the Master in terms of the statutory law, i.e. the Administration of Estates Act.

Where a black person died intestate, the magistrate in the area of jurisdiction where the deceased last resided still had the power to administer the estate of
* any person who was a partner to a customary marriage
* any unmarried person

The above estates were still distributed under customary law, as provided for under the
Black Administration Act and the regulations promulgated thereunder.