Jean capacity to inherit Flashcards
What is the general rule regarding capacity to inherit?
All juristic and natural persons, born or unborn, are competent to inherit either testate or intestate regardless of their legal capacity.
Do minors have the capacity to inherit? How is this limited?
A minor has the capacity to inherit but their ability to enjoy the inheritance is restricted.
In discussing how the capacity to inherit is limited, have a look at the difference between movable and immovable property.
What is the position of the nasciturus with regards to intestate succession?
Intestate inheritance – usually devolves on the death of the deceased. Therefore, if the nasciturus is conceived at the time of the deceased’s death and is subsequently born alive, the nasciturus will inherit their intestate share.
What is the position of the nasciturus with regards to testate succession? What legislative section applies?
for testate succession S2D 1 C applies:
the time when the benefit devolves can be either conditional or unconditional.
Because of this, section 2D(1)(c) does not only refer to a beneficiary being alive at the time of the deceased’s death, but also to the beneficiary being alive at the time of the devolution of the benefit or having been conceived at the that time and later born alive.
Do illegitimate children have capacity to inherit?
Yes. Section 1(2) of the ISA and section 2D(1)(b) of the Wills Act allows extramarital children the same status as children born within wedlock when it comes to testate and intestate succession.
Can juristic persons inherit?
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.
Who are conjuntissimi?
Persons close to the deceased - spouse, parents, children.
Is the person who murdered the testator/caused the death of the testator automatically disqualified from inheriting?
A person who is responsible for the death of the deceased of the person closest the deceased will not automatically be disqualified. The Master does not have the authority to disqualify a person. There needs to be a court order.
Will a person who negligently caused the death of the testator be allowed to inherit?
A beneficiary who commits culpable homicide (the unlawful negligent killing of a human being) is equally disqualified from inheriting as a person who commits murder (the unlawful and intentional killing of a human being).
Who bears the onus of showing a person lacks capacity to benefit?
In Casey, the court held that the onus of proof is always on the party who maintains that another party is disqualified from taking a benefit under a will.
Who/What is an Indignus?
person who unlawfully causes the death of the deceased of the person closest to the deceased is automatically considered an indignus: a person who is unworthy or lacking in merit.
The term indignus is not limited solely to killing.
It also applies to all types of conduct perpetrated against the deceased which would be viewed as despicable according to the notions of public policy.
Name the three categories of persons disqualified from benefiting in terms of section 4A of the Wills Act.
Any person who signs a will as a witness or as an amanuensis.
Anyone who writes out the will or any part thereof in his own handwriting.
The person who is the spouse of such person at the time of the execution of the will.
The disqualification in section 4A(1) may be condoned in terms of section 4A(2). Explain.
- is the disqualified beneficiary an intestate heir?
- if yes is the amount which they stand to recieve/ less than or equal to what they would have received in intestacy, then no longer disqualified
- if no then master must make a determination
- if disqualified bc witness if 2 or more other witnesses present then not disqualified
With regards to section 1(7) of the Intestate Succession Act and section 2C(2) of the Wills Act, what happens to the benefit if a beneficiary is disqualified from taking it?
descendants inherit
