Chapter 3 - Testate Succession: General Rules Flashcards
The purpose of this learning unit is to enable you to: defi ne the concepts “will”, “codicil” and “testamentary writing” explain the diff erence between joint and mutual wills diff erentiate between adiation and repudiation explain when and how the doctrine of election is applicable
Testate law of succession or successio ex testamento
The testate law of succession comprises those legal rules or norms that regulate the devolution of a deceased person’s estate on one or more persons according to the testator’s wishes as expressed in a will.
Define a will
A will can be defined as a written document in which an estate voluntarily sets out his or her instructions on how his or her assets are to devolve following his or her death.
Animus testandi
Is the intention to make a will and is a core requirement for the validity of a will
Volition
A testator must decide entirely of his or her volition how his or her estate is to be divided
What is codicil?
A codicil is a separate will that has to comply with the same formalities of a will.
What is testamentary writing?
A document that entails:
1. the identity of the property bequeathed.
2. the extent of the interest bequeathed.
3. the identity of the beneficiary.
Inter vivos trust
is a trust created during the lifetime of its creator.
Joint will
If two or more testators set out their respective wills in the same document.
Mutual will
Where two or more testators draw up a joint will and confer benefits on each other in the same will.
Adiation
Adiation means the acceptance of a benefit from the estate of a testator or deceased either under testae succession or under intestate succession
- No action needed
- Executor transfers benefit
- Must accept in writing when the benefit is linked to an obligation
Repudiation
Repudiation means the rejection of a benefit or refusal to inherit a benefit from the estate of the testator or deceased either testate succession or under intestate succession
- Must reject in writing
- Beneficiary receives no benefit
- Benefit devolves to the residual heir or according to the rules of substitution, accrual or intestate succession
Doctrine of election
This applies to all cases where acceptance of a benefit from a will simultaneously holds some kind of burden or obligation for the beneficiary.
