Intestate Succession

Question 1

Section 1(1)(a)

Answer 1

Surviving Spouse(s) - no descendants

ICOP = 1/2 share of communal estate by virtue of marital regime + 1/2 share of deceased’s estate ito Act

OCOP= net value of estate of deceased ito Act

Polygamous= divide estate equally amoungst ss ito Act

Question 2

Section 1(1)(b)

Answer 2

No surviving spouse(s) but leaves descendants

Descendants inherit per stirpes by representation in equal shares

Question 3

Section 1(2)

Answer 3

having been born out of wedlock shall not affect the capacity of one blood relation to inherit
the intestate estate of another blood relation

Question 4

Section 1(4)(e)(i)

Answer 4

an adopted child shall be deemed to be a descendant of his adoptive parent or parents formal adoption is required

Question 5

Section 1(4)(a)

Answer 5

in relation to descendants of the deceased and descendants of a parent of the deceased,
division of the estate shall take place per stirpes, and representation shall be allowed

Question 6

Section 1(7)

Answer 6

If a person is disqualified from being an heir of the intestate estate of the deceased, or renounces
his right to be such an heir, any benefit which he would have received if he had not been so
disqualified or had not so renounced his right shall, subject to the provisions of subsection (6),
devolve as if he had died immediately before the death of the testator and, if applicable, as if he was
not so disqualified.

Question 7

Section 1(6)

Answer 7

If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with
the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his
right to receive such a benefit, such benefit shall vest in the surviving spouse.

Question 8

Section 1(1)(c)(i)

Answer 8

Survived by descendant(s) and a spouse

ICOP = 1 half share of communal estate by virtue of marital regime and either R250 000 or a child’s share whichever is greater

OCOP = Either R250 000 or a child’s share whichever is greater

Question 9

Section 1(1)(c)(ii)

Answer 9

Survived by descendant(s) and a spouse

ICOP = Children will inherit the balance/residue (if any) of the 1/2 share of the deceased’s estate in equal shares

OCOP = Children will inherit the balance/residue (if any)

Question 10

Child share calculation

Answer 10

value of the estate (1/2 in married ICOP) / number of surviving children + predeceased/disqualified children who left descendants + surviving spouses)

Question 11

Section 1(1)(d)(i)

Answer 11

Both parents of the deceased are alive and the deceased is single = never married/divorced/widower and thus leaves no spouse or descendants

Parents inherit in equal shares (incl adoptive parents ito section 1(5))

Question 12

Section 1(1)(d)(ii)

Answer 12

One parent of the deceased is alive and the deceased is single (never married/divorced/widower) ; the pre-deceased parent left descendants

Surviving parent inherits 1/2 of the estate

Descendants of the deceased parent inherit the other half in equal shares (read with section 1(4)(a))

Question 13

Section 1(1)(d)(ii)

Answer 13

One surviving parent of the single (never married/divorced/widower) deceased but the pre-deceased parent did not leave any descendants

The surviving parent is the sole heir and inherits the entire estate

Question 14

Section 1(1)(e)(i)

Answer 14

Both parents pre-deceased and both pre-deceased parents have left descendants; deceased is single (never married/divorced/widower)

The descendant of the predeceased parents will inherit the 1/2 shares which would have been inherited by the various parents

Question 15

Section 1(1)(e)(ii)

Answer 15

deceased is single (never married/divorced/widower) and does not leave any descendants; both parents are pre-deceased; only one pre-deceased parent has left descendants

The descendant(s) of the predeceased parent will inherit the estate in equal shares

Question 16

Section 1(1)(f)

Answer 16

Both parents are pre-deceased; neither parents has left descendants; deceased is single (never married/divorced/widower)

The nearest blood relation is the sole heir read with section 1(4)(a)

Question 17

No surviving spouse, no descendants, parents and all other relatives are deceased or cannot be located

Answer 17

The estate is paid to the guardian fund where it will remain for 30 years. If unclaimed by prescription, it will be acquired by the State ito the s92 of the AofEA.

Question 18

nasciturus fiction

Answer 18

right to inherit will vest in the unborn child from the time it is conceived and will be realized only if the child is born alive - in question do both calculations

Question 19

Gory v Kolver NO and others

Answer 19

“spouse” = read in partner in a permanent same sex life partnership in which the partners have undertaken reciprocal duties of support; section (1A) ISA

Question 20

Jane Bwanya v Master of the HC

Answer 20

permanent life partnerships are a legitimate family structure and are entitled to protection thus spouse in the ISA must be interpreted to incl a partner in a permanent opposite life partnership in which the partners have undertaken reciprocal duties of support; section (1A) ISA