Chapter 2 - Intestate Succession

Question 1

Law of intestate succession or successio ab intestato

Answer 1

The law of intestate succession comprises the legal rules or legal norms that determine how succession should take place in cases where a testator fails to regulate succession on death by way of a valid will or a pactum successorium contained in an antenuptial contract.

Question 2

Descendant

Answer 2

Common law descendants include the deceased’s lineal descendants (persons in the downward line)

Question 3

Ascendant

Answer 3

Ascendants are ancestors of the deceased, in other words, anybody in the ascending line of the relationship.

Question 4

Collateral

Answer 4

Refers to a person who is related to the deceased because he or she has the same ancestor as the deceased

Question 5

Polygamy; polygyny and polyandry

Answer 5

Polygamy refers to the situation where there is a marriage between one person and two or more spouses simultaneously.

Question 6

Spouse

Answer 6

Refers to a person to whom the deceased was married.

Question 7

Permanent life partner

Answer 7

Refers to a person with whom the deceased was involved in a relationship (same-sex or opposite-sex) with reciprocal duties of support.

Question 8

Stirp or stirpes

Answer 8

A stirps is a line of common ancestry.

Question 9

Succession by representation

Answer 9

Succession by representation occurs when an heir inherits based on his or her blood relationship with a predeceased heir of the deceased whose place he or she fills.

Question 10

Per capita distribution

Answer 10

means that each beneficiary takes the same share.

Question 11

When does a person die intestate?

Answer 11

Dies:

1. Without having a will.
2. Having executed a valid will which subsequently became wholly or partly inoperative for some or other reason.
3. With a valid will that fails to dispose of all the deceased’s assets.
4. Leaving a document purporting to be a will but which does not comply with the formalities for wills and is not condoned in terms of section 2(3) of the Wills Act.

Question 12

Which case deals with the vesting of an inheritance?

Answer 12

Harris v Assumed Administrator, Estate

Question 13

Who has the capacity to inherit intestate?

Answer 13

1. Only natural persons
2. Extramaterial, adulterine and incestuous children.
3. Children born because of artificial fertilisation
4. Children born because of surrogacy
5. Adopted children
6. Unborn children

Question 14

Which cases must be studied that presented Constitutional challenges?

Answer 14

1. Bhe v Magistrate
2. Daniels v Campbell
3. Hassam v Jacobs
4. Bwanya v Master of the High Court
5. Governder v Rgavayah
6. Gory v Kolver
7. Wilsnach v TM

Question 15

What are applicable intestate succession laws?

Answer 15

1. A black person who maintained an African customary lifestyle by entering into an African customary marriage died intestate before 27 April 1994, his or her estate will devolve according to the repealed section 23 of the Black Administration Act.
2. A black person who maintained an African customary lifestyle by entering into an African customary marriage died intestate after 27 April 1994, his or her estate will devolve according to the Intestate Succession Act.
3. If a person of any racial group died intestate, whether he or she died before or after 27 April 1994, his or her estate would devolve according to the Intestate Succession Act.
4. If a person dies intestate and was involved in a same-sex permanent life partnership to which there were reciprocal duties of support.
5. If a person dies and was involved in a permanent life partnership in which there were reciprocal duties of support.