Learning Unit 1 - Introduction Flashcards
This learning unit gives you a general introduction to the law of succession in South Africa as it deals with the nature, scope and application of the law of succession. The law of succession prescribes the legal rules that determine what should happen to a person’s estate after his or her death. Succession may take place according to a will (testate succession), according the operation of the law of intestate succession, or in terms of a contract (pactum successorium).
1
Q
Name 3 ways that succession can take place
A
- In accordance with a valid will
- Intestate succession in the absence of a will
- In terms of a contract Contract or Agreement
2
Q
Absolute bequest
A
A bequest that does not contain any conditions
3
Q
Accrual or the right of the accrual (ius accrescendi)
A
The right that the co-heirs or co-legatees have of inheriting the share that their co=heir or co-legatee cannot or does not wish to receive.
4
Q
Ademption
A
A form of tacit revocation of a legacy when a testator voluntarily alienates the object of the legacy during his/her lifetime causing the legacy to fail.
5
Q
Adiation
A
The acceptance of benefit from the estate of the testator or deceased either under testate succession or under intestate succession
6
Q
Administration of estates
A
The process, including all administrative actions to initiate and complete the process.
7
Q
Alienate
A
A broad term that covers all modes of disposing of an asset.
8
Q
amanuensis
A
Someone the testator has authorised to sign the will on behalf of him or herself
9
Q
Amendment
A
A deletion, addition, or alteration by the testator
10
Q
Animus testandi
A
The intention of the testator to make a will
11
Q
Ascendants
A
Ancestors of the deceased
12
Q
Attestation clause
A
A clause that appears at the end of the will in which it is declared that all the parties were present and signed in one another’s presence.
13
Q
Beneficiary or beneficiaries
A
The person or persons to whom a testator’s estate is transferred.
14
Q
Bequeath
A
Dispose of assets by means of a will
15
Q
Bequest
A
The bequeathable assets left by the deceased.
16
Q
Capacity to act
A
A person’s capacity to enter into legal acts
17
Q
Cleave/Cloven
A
When an estate rises up from the deceased to his parents and is divided into two halves so that each half goes to each parent’s side from where it is further distributed.
18
Q
Child’s portion
A
Calculated by dividing the deceased’s estate by the number of children who have either survived him or her, or have predeceased him or her but have left descendants of their own, plus the number of surviving spouses.
19
Q
Collateral
A
Refers to a person who is related to the deceased because he or she has the same ancestor as the deceased. e.g. Full brother, half brother, nephew, cousin uncle or aunt.
20
Q
Collation or collatio bonorum
A
under certain circumstances, a descendant who received certain benefits from a testator during the testator’s lifetime must collate such benefits before he or she may inherit from the estate of the testator to ensure a fair distribution of the deceased estate among all the descendants.
21
Q
Commorientes
A
People who die simultaneously in a disaster.
22
Q
Competent witness
A
With regards to a will, any person over the age of 14 years who is competent to give evidence in a court of law.
23
Q
Compos mentis
A
A sound mind
24
Q
Conditional bequest
A
A bequest that depends on a future event which is uncertain in the sense that it may or may not occur.
25
coniunctissimi
The persons closest to the deceased, namely the surviving spouse, parents and children
26
Contractual succession or pactum successorium
A contract in which the parties attempt to regulate the devolution of the entire estate or part of the estate of one or both parties
27
Curator
A person who has been legally appointed to take care of the interest of someone who is unable to manage his or her affairs.
28
Customary house
In customary law, the word "house" refers to the family, property, rights and status connected to a customary marriage of a man and a woman.
29
Customary law property
There are three categories of customary law property, namely family property, house property and personal property
30
Customary marriage
A marriage concluded in terms of customary law
31
cy pres doctrine
A doctrine that a court may apply in the case of the failure of a charitable trust in order that the trust assets may be applied for the purpose as near as possible to the original purpose.
32
Deceased estate
Consists of assets and liabilities of the deceased person at the time of his or her death
33
Descendants
Persons in the downward line of the deceased
34
dies cedit
The day will come. The time when the beneficiary obtains a vested right to claim delivery of the bequeathed property unconditionally
35
dies venit
The day has come. The time at which a beneficiary's right to claim delivery of the bequeathed property becomes enforceable or the day when delivery of the property must take place.
36
Direct substitution
Occurs when a testator names a substitute or series of substitutes who are to inherit if the heir or legatee named to benefit in a will does not inherit.
37
donato mortis causa
A donation aimed at the donor's death that must comply with the formalities laid down for a will
38
estate massing
When two or more testators mass the whole or parts of their estates into one consolidated economic unit for the purpose of testamentary disposal and the disposal becomes effective on the death of the first-dying spouse
39
Execution of a will
The process through which the testator and other parties comply with all formalities required to bring a valid will into existence
40
Executor
The person who is charged with the administration of a deceased estate. The person who winds up the estate.
41
Extrinsic evidence
Evidence outside of the will itself
42
fideicommissary substitution
Occurs when a testator directs that a series of beneficiaries are to own his or her whole estate or part of it, or specific assets one after another
43
fideicommissum residui
Where property is left to a fiduciary subject to the provision that as much of it as may be left at the time of his or her death is to devolve to another person
44
Formalities
The formal legal requirements with which a will must comply to be valid
45
Freedom of testation
The freedom of a person to dispose of his or her estate as he or she pleases
46
Heir
Where a testator leaves his or her entire estate, a portion thereof or the residue thereof to a certain beneficiary, such a bequest is called an inheritance, and the beneficiary is called an heir.
47
Indignus
A beneficiary is precluded from inheriting because of his or her untrustworthy conduct
48
Inheritance
Where a testator leaves his or her entire estate, a portion thereof or the residue thereof to a certain beneficiary, such a bequest is called an inheritance.
49
Initial/Initialling
When a person is initialling or initials a document, he or she writes only the first letter of one or more of his or her names without adding a surname.
50
Initials
One or more of the first letters of a person's name used without adding a surname.
51
Inter vivos
Between the living
52
Inter vivos trust
A trust created during the life of the creator thereof.
53
Law of intestate succession or successio ab intestato
The legal rules or legal norms that determine succession in cases where a testator fails to regulate succession on death by way of a valid will or pactum successorium contained in an antenuptial contract
54
Joint will
Where two or more testators set out their respective wills in the same document.
55
Juristic act
An act that is intended to create or alter rights and obligations; an act to which the law attaches at least some of the consequences envisaged by the acting party or parties
56
Law of succession
Comprises legal rules that control the transfer of those assets of a deceased that are eligible for distribution to beneficiaries, or those assets of another person over which the deceased has power of disposal.
57
Legacy and Legatee
Where the testator leaves a specific asset to a beneficiary, such as a house, a farm or a specific amount of money, the bequest is known as a legacy. The beneficiary of a legacy is called a legatee.
58
Living customary law
The actual version of customary law as applied by the people living under a system of customary law which may differ from the official version.
59
Lobolo
The property in cash or in kind that a prospective husband or the head of his family undertakes to give to the head of the prospective wife's family in consideration of a customary marriage.
60
Male primogeniture
Under customary law, the heirs of the deceased are usually male and are identified by their relationship to the deceased through the male line.
61
Modus or Obligation
A qualification added to a gift or testamentary disposition which requires the beneficiary to devote the property received in whole or in part to a specific purpose.
62
Mortis causa
I contemplation of death
63
Mutual will
Where two or more testators draw up a joint will and confer benefits on each other in the same will.
64
Nudum praeceptum
If a testator bequeaths property to a beneficiary but prohibits him or her from dealing with the property in a certain way, for example, alienating the property, such a prohibition will only be valid if someone else has been nominated by the testator to take the property should the beneficiary contravene the prohibition. If no prohibition is made for a substitute or gift over in the event of contravention of the prohibition, the prohibition is called a nudum praeceptum or nude prohibition and is not legally binding.
65
Official customary law
The version of customary law as applied by the courts and entrenched in legislation.
66
Pactum successorium
A contract in which the parties attempt to regulate the devolution of the entire or part of the assets of one or both parties.
67
per capita distribution
each beneficiary takes the same share.
68
Permanent life partner
A permanent life partner refers to a person with whom the deceased was involved in a relationship (same-sex or opposite-sex) with reciprocal duties of support.
69
Polygamy, polygyny and polyandry
Polygamy refers to the situation where there is a marriage between one person and two or more spouses simultaneously.
70
Posthumous
Something that occurs or continues after someone's death.
71
Power of appointment
The power to appoint certain beneficiaries as heirs or legatees given to someone else by the testator.
72
Power of assumption
The authority given by the trust founder to a trust's serving trustees to appoint additional trustees and fill vacancies in the trust office.
73
Precedent system
Aka stare decisis means to stand by that which id decided.
74
Pre-legacy
A legacy that takes precedence over all other legacies and inheritances according to the testator's instructions.
75
Prodigal
A spendthrift, someone who is characterised by excessive or imprudent spending.
76
quid pro quo
something for something; mutual consideration
77
Quitrent land
The owner of the land held under a quitrent title does not have full ownership of the land, but only the right to loan the property from the government for a certain period of time and against payment of a certain amount of money.
78
Rebuttable presumption
A legal presumption that will stand as a fact unless proven otherwise
79
Rectification
This takes place when the court adds, deletes or corrects something in a will because the testator made a mistake when making the will and the will does not reflect his or her intention correctly.
80
Repudiation
The rejection of a benefit or refusal to inherit a benefit from the estate of a testator.
81
Residue or residuary estate
Refers to that part of the deceased's estate after the payment of funeral expenses, all debts, taxes, administrative fees and other administration costs, maintenance claims and all legacies. The residue is what is left in the estate after everything has been paid out or transferred, and it includes all bequests that have failed or lapsed.
82
Resolutive (terminative) condition
A bequest is subject to a resolution (terminative) condition when the bequest is made to terminate if a particular uncertain future event takes place.
83
Resolutive (terminative) time clause or resolutive term
A bequest subject to a resolutive (terminative) time clause is one where the beneficiary's rights are terminated when a certain time arrives.
84
Revocation
The act by which the testator cancels a will, or part of a will so that it no longer functions as a valid will. Revocation is the only way in which a will can be undone by a testator.
85
si sine liberis decesserit clause
A clause that stipulates that if a beneficiary dies without children after the testator, the benefit must pass to a third party.
86
Spouse
A person to whom the deceased was married, whether by SA legislation or religious personal law.
87
Spes
Hope or expectation
88
Stipulatio alteri
A contract in favour of a third person
89
Stipulation or provision
General terms used for clauses in a will where the testator has made his or her intentions known.
90
Stirps or Stirpes
A line of descendants of common ancestry
91
Succession by representation per stirpes
Occurs when an heir inherits based on his or her blood relationship with the predeceased heir of the deceased whose place he or she fills.
92
Substitution
Occurs when a testator appoints a beneficiary to inherit a benefit and, at the same time, appoints another beneficiary to take the place of the first-mentioned beneficiary.
93
Succession to status
In the customary law of succession, the successor steps into the shoes of the deceased and gains control over the property and people whom the deceased controlled.
94
Survivor or surviving spouse
The spouse who is still alive after the death of his or her spouse.
95
Suspensive condition
If a bequest is made subject to a suspension condition, the beneficiary does not obtain a vested, finally established right to the benefit unless and until a particular uncertain future event takes place
96
Suspensive time clause or suspensive clause
A bequest subject to a suspensive time clause is a bequest from which the beneficiary will receive the benefit only at a certain future time.
97
Testamentary capacity
Capacity to make a will. Every person aged 16 years or more may make a will unless, at the time of making the will, he or she is mentally incapable of appreciating the nature and effect of the act.
98
Testamentary writing
A document that defines any one of the three elements of a bequest
99
Testate law of succession or successio ex testamento
Comprises those legal rules 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.
100
Testator
A natural person who makes a will in which he or she bequeaths an estate in the form of bequeathable assets.
101
Time clause
A bequest subject to an event that will certainly happen in the future, although it may be certain or uncertain when it will arrive.
102
Trust
Is where ownership and/or control in/ over property handed over to a trustee(s) for the benefit of another or an impersonal object in terms of section 1 of the Trust Property Control Act
103
Testamentary trust
The testator bequeaths ownership in property to either a trustee(s) or to the trust beneficiaries.
104
Trust instrument
A written agreement, a testamentary writing or a court order in terms of which a trust is created.
105
Tutor
A third person appointed in a will by a natural parent or parents where such a parent or parents, who would ordinarily act as the minor's guardian, is or are unavailable, for whatever reason, to act as guardian.
106
Usufruct
Takes place when legal ownership is bequeathed to one person, but the right to use, enjoy and take the fruits of the property is bequeathed to another.
107
Vest
This takes place when legal ownership of property or legal rights settle on a beneficiary
108
Will or testament
A unilateral, voluntary juristic act contained in a document which complies with formalities required by law, and in which the testator gives instructions pertaining to what must happen to his or her estate after his death.
