Jeans Questions 1 - 2.5

Question 1

What is the Law of Succession?

Answer 1

• branch of private law.

- legal rules or norms which regulate the devolution of a deceased person’s estate upon one or more persons.

Question 2

In which ways can succession take place?

Answer 2

In accordance with a valid Will – Testate Succession
• Through the operation of the law of Intestate Succession
• In terms of a Contract/Agreement – Successio ex Contractu/Pactum Sucessorium

Question 3

Can a minor be nominated as an executor?

Answer 3

Minors cannot be nominated as an executor.

Question 4

In a representative action who is the proper person to act in legal proceedings on behalf of a deceased’s estate?

Answer 4

The executor.

Question 5

On the death of a deceased, would an heir acquire ownership of the bequeathed asset immediately?

Answer 5

• No.

* The heir acquires a VESTED PERSONAL RIGHT against the executor to obtain transfer.

Question 6

List two exceptions to the rule that a person must be deceased before succession can take place.

Answer 6

• Court pronounces a presumption of death and makes an order.
• Estate Massing.

Question 7

What is the moment that the estate “falls open” is also known as?

Answer 7

Delatio.

Question 8

What is the difference between an Executor Testamentary and an Executor Dative?

Answer 8

Nominated by testator in a valid will. Master will appoint the nominated person - Executor Testamentary.
Deceased dies without a will and did not nominate an executor. Master will appoint an executor - Executor Dative.

Question 9

Can an insolvent beneficiary repudiate his/her inheritance?

Answer 9

yes they can , in wessels v de jager the court held that an insolvent can repudiate inheritance, it won’t prejudice creditors as the inheritance does not fall into the insolvent persons estate, has limited legal capacity, right does not go to trustee

Question 10

What is the power of assumption?

Answer 10

This means that the appointed executor has the power to appoint a co-executor or agent to assist with the winding-up of the estate.

Question 11

When does the doctrine of election apply?

Answer 11

Applicable in all cases where an acceptance of a benefit from a will will hold some kind of burden/obligation.
Beneficiary has to elect/choose to accept the benefit that imposes a burden.
If they accept the benefit then they must accept the obligation.
If a beneficiary elects to repudiate, the they will receive nothing.

Question 12

In the law of succession, a prerequisite for succession is that the owner of the estate must have died. What are the exceptions to this prerequisite?

Answer 12

. Court pronounces a presumption of death and makes an order.
2. Estate Massing.

Question 13

When does Intestate Succession apply?

Answer 13

Without leaving a valid will.
Having executed a valid Will which subsequently becomes wholly or partly inoperative.
With a valid Will which fails to dispose of all the deceased’s assets.
Leaving a document purporting to be a Will, but does not comply with the formalities for Wills and is not condoned in terms of s 2(3) of the Wills Act.

Question 14

When is a person said to die partially intestate?

Answer 14

A will only disposes with a portion of the estate.
 A beneficiary fails to adiate and the Will does not provide for a substitute, statutory representation does not apply and the doctrine of accrual does not apply.
 There is a condition attached to a benefit and the beneficiary refuses to accept the benefit and no substitute has been provided for this eventuality.

Question 15

When is a person said to die wholly intestate?

Answer 15

 The deceased dies without leaving a valid will.
 There is will but the will fails to dispose of the deceased’s assets.
 There is a will but the testator performs an act of revocation.

Question 16

n Harris v Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A) what did the Court hold with regards to when rights vest in intestate succession?

Answer 16

Model Short Answer:Court held:
 Where a deceased dies without having made will at all, or without leaving a valid will, his or her intestate estate vests on the date of his or her death when his or her intestate heirs have been determined.
 Where a testator dies leaving a valid will which took effect on his or her death but which subsequently became inoperative, either in total or in part, his or her intestate estate vests on the date when it first became factually certain that his or her will had become inoperative. Any intestate heirs would have to be determined, not at his or her death, but when the intestacy occurred.
 Therefore, the intestate heirs had to be determined on the death of the deceased’s brother.

Question 17

Can an adopted child inherit intestate from their adoptive parents?

Answer 17

Yes.
section 1(4)(e) read with section 1(5) of the Intestate Succession Act
 Section 1(4)(e):
 An adopted child is deemed to be a descendant of their adoptive parents and a not a descendant of their natural parents except in the case of a natural parent who is also the adoptive parent of that child or was at the time of the adoption married to the child’s adoptive parent.
 Section 1(5):
 Adoptive parents shall be deemed to be the ancestors of the adopted child.

Question 18

Does an extramarital child only inherit from their mother?

Answer 18

the child can inherit from both parents and relations.