march succ test: Intestate

Question 1

when does intestate succession occur

Answer 1

1. without leaving a valid will
2. having executed a valid will which subsequently becomes wholly/partially inoperative
3. without a valid will which fails to dispose of the deceased’s assets
4. a document that does not comply with s 2 (3) of WA

also: dying without capacity to leave a will, will contrary to public policy, no pactum successorium

Question 2

when does a person die wholly intestate

Answer 2

1. no valid will
2. will fails to dispose of assets
3. testator revokes will and does not create a new one

Question 3

when does a person die partially intestate

Answer 3

1. beneficiary in the will chooses to repudiate their benefit
2. if a beneficiary chooses not to accept a benefit with a burden, if there is no substitute ISA applies
3. Beneficiary does have a will but it does not dispose of everything and is silent in regards to specific assets

Question 4

descendant

Answer 4

descends directly i.e children, grandchildren, great grandchildren

in customary law: much broader definition - woman in substitute marriage, someone who testator accepted to be their child, woman to woman marriage

Question 5

ascendant

Answer 5

from whom the descendant descends i.e parents, grandparents

Question 6

collateral

Answer 6

when one is related to the deceased by common ancestor i.e brother, sister, niece, nephew

Question 7

what are the parentela

Answer 7

1st: deceased person and their descendants
2nd: deceased parents and their descendants
3rd: deceased grand parents and their descendants
4th: deceased great grandparents and their descendants

Question 8

stirp/ stirpes

Answer 8

surviving descendants of the deceased. only blood relations can inherit in Intestate Succession

Question 9

degree of consanguinity

Answer 9

degree of relationship in the collateral line. Each generation is one degree

Question 10

representation

Answer 10

the surviving descendant of the predeceased person ( who was supposed to inherit) will step into their shoes

Question 11

Harris ratio

Answer 11

where a testator dies leaving a valid will which took effect on his death BUT subsequently becomes inoperative either in whole or in part, his intestate estate vests in the date when it first became FACTUALLY CERTAIN that his will had become inoperative. Any intestate heirs would have to be determined not at death but when intestacy occurred.

Question 12

extra marital children

Answer 12

can inherit from both mother and father and their relations

Question 13

artificial insemination

Answer 13

1. extra marital= only from mother
2. married + donor stranger + husband consents= inherit from mother and father
3. married + donor is a stranger+ no consent father= only inherit from mother
4. same sex life partnership child inherits from both mothers

Question 14

J v Director General Ratio

Answer 14

partner who was not biological parent was to be regarded as natural parent and children were legitimate by law

Question 15

surrogacy

Answer 15

if the parties enter into a valid surrogacy agreement then child is legitimate and can inherit from both parents and their relations if they die intestate.

If the agreement is rescinded or defective the child can only inherit from the surrogate mother.

Question 16

Adoption

Answer 16

an adopted child is deemed to be a descendant of its adoptive parents

Question 17

Rule 1: deceased survived by SPOUSE but no descendants

Answer 17

spouse inherits all

Question 18

Rule 2: Deceased has no surviving spouse but has DESCENDANTS

Answer 18

descendants inherits equally and representation is possible

Question 19

Rule 3: deceased is survived by SPOUSE AND DESCENDANTS

Answer 19

spouse inherits child’s portion and descendants inherit residue.

Question 20

Rule 4: deceased is survived by PARENTS only

Answer 20

surviving parents inherit equal shares

Question 21

Rule 5: survived by ONE PARENT AND DESCENDANT OF OTHER PARENT

Answer 21

one parent inherits one half

descendants of other parents inherit other half

Question 22

Rule 6: survived only by PARENTS DESCENDANTS

Answer 22

one half goes to mothers side
one half goes to fathers side

full brothers and sisters inherit from both
half brothers and sisters inherit from one

Question 23

Rule 7: survived by DESCENDANTS OF ONLY ONE PARENT

Answer 23

descendants inherit the whole estate

Question 24

Rule 8: survived by DISTANT RELATIONS

Answer 24

nearest blood relation inherits