march succ test : topic 1 Flashcards
1.1-1.6 excluding 1.5
succession takes place in 3 ways
- testate succession
- intestate succession
- contract
difference between testate and intestate succession
testate= a person dies testate when he or she dies leaving a valid will or dies leaving an invalid will that is condoned in terms of s 2 (3) of the Wills Act because it will effectively dispose of his assets.
intestate= a person dies intestate if he dies without a will OR dies leaving an invalid will that cannot be condoned in s 2 (3) of the wills act OR dies leaving a valid will that does not dispose of his assets. Governed by ISA.
testator
a male or female individual who executes a will
estate
consists of both assets and liabilities, In SA beneficiaries only inherit assets
revocation
revoke a will or clause in a will. Act by which a testator cancels a will
trustee
controls trust property to the advantage of the beneficiaries
legatee
a person to whom specific property is bequeathed
heir
a person who is entitled to inherit from a person’s estate
trust
allows one to control use of money after death , controlled by trustees
repudiation
rejection of a benefit
collation
a descendant who received certain benefits ( either property or money from the testator during the testator’s lifetime) has to collate (bring in) such benefit ( or its value) before he/she may inherit from the estate
free from community of property/ exclusion from marital property
MPA s 5(1) automatically excludes inheritance from accrual calculation unless the contrary is agreed to in the couple’s ANC in (OCOP)
what are the 3 types of executors
- executor testamentary : stipulated in a will, appointed by master of HC
- executor dative: intestate, if no executor nominated, master of HC nominates
- executor assumed: executor testamentary appoints a co executor
can a minor be appointed an executor
a minor can only be appointed as executor if they are a major when they have to do the job
what are the duties of an executor
- collect assets
- sell assets
- continue the business of the deceased
- pay creditors
- distribute residue of estate
what is the deceased estate
- assets and liabilities of the deceased person
- at the time of his or her death
- not a legal person snd therefore cannot be sued/ sue in its own name
what is the residue of the deceased estate
the part of the estate that remains after all the costs, debts, taxes and feed have been paid out, transferred. Includes all bequests that have failed or lapsed.
who owns the assets in the deceased estate
- until the estate is distributed nobody owns the assets
- upon the death of testator beneficiaries merely have a vested personal right to the assets
- the estate does not inherit the assets or own the assets
- estate vests in the master and thereafter the executor
Greenberg ratio
The beneficiary does not obtain ownership of the property immediately on the death of the testator but instead obtains a vested personal right to claim delivery of the property from the executor at some future date.
what is the definition of an executor
A person who is authorised to act under letters of executorship granted/signed/sealed by the Master ( AEA). The executor acts in a fiduciary position and therefore must always act in good faith ( Van Niekerk).
what is the power of assumption
- testator can give the delegated executor the power to nominate a co executor
- the co executor will have signing power of the estate
- the co executor is called the executor assumed
what happens if the executor makes a wrong distribution
property that was incorrectly paid can be reclaimed in terms of s50 read with s 23 (5) of AEA.
- executor under positive obligation to reclaim property from a third party
- executor is personally liable
- security paid can be used to repay those who experienced loss
- action sui generis
what happens if the executor refuses to institute proceedings to recover estate debts or to make claims
- remove executor from office ( cumes)
- beneficiary can sue but executor is listed as NO defendant ( official capacity )
- Du Toit: executors duty to administrate estate and sue on behalf of estate
- Gross v Pentz: distinction between actions brought ton behalf of trust (representative action) and actions brought by trust beneficiaries in their own right against trustees for maladministration - executor can cede the right of action to the beneficiary ( Cohen)
Adiation and formalities
Adiation is the acceptance of a benefit from the testator’s estate. Usually inferred from the beneficiaries conduct.
Express adiation is no longer required
Repudiation and formalities
Rejection of a benefit from estate of testator ( intestate or testate)
Must be done in writing and then the person will receive no benefits
why would a person repudiate
- personal reasons
- onerous conditions attached to inheritance
- to reverse a massing
what is the effect of repudation
this varies according to the provisions of the will and the various circumstances
- substitution in place of repudiating beneficiary
- accrual to other beneficiaries shares of the estate
- repudiated share falls in to residue inherited by residual heirs
- May devolve in accordance with intestate succession
when does the doctrine of election apply
it only applies where there is an obligation attached to a benefit.
- IF the beneficiary accepts the benefit they MUST accept the burden
Must accept the whole will or non of it , not possible to adiate or repudiate in part)
when is partial repudiation allowed
- no conditions attached
- no prohibition of such in the will
- spirit of the will is not compromised
Wessels v De jager ratio
An insolvent beneficiary can repudiate an unconditional inheritance as long as this repudiation does not prejudice his creditors
when is the exact moment of death
exact moment of death unsettled in SA
traditional approach: cessation of heart and lung activity
modern medical approach: cessation of brain activity
S v Williams ratio
when a person is kept alive artificially by means of a respirator, its eventual disconnection is not in legal terms the act which causes death.
when is death not a precondition for succession ( EXCEPTIONS)
- presumption of death order
2. estate massing
what are commorientes
when a number of people are killed in the same disaster. It is important to determine which of them died first in order to establish whether the one inherited from the other. The court does not make use of common law presumptions, timeline of death is based on evidence.
what is the general rule of survivorship/ commorientes
if the sequence in which the people died cannot be determined there is no presumption of survival or simultaneous death. The case will be determined on the basis of facts in a case by case approach.
ex parte Graham ratio
court must look to the facts to determine simultaneous or successive death. No presumptions can be used inSA law. Depends on the circumstances of each case.
greyling ratio
ONLY USE IF WILL IN QUESTION
the words “to die simultaneously” in the will meant death as a result of a single incident, irrespective of the exact time of death. Not a strict mathematical simultaneousness.
what is the nasciturus fiction
Ex parte Boedel Steenkamp
Applies when a beneficiary has been conceived but not yet born when the benefit vests.
- benefit unborn child
- child must be born alive
what is dellatio
when the estate falls open
what is dies cedit
the day will come
- the moment the right is deemed to have vested in the beneficiary
- beneficiary must be alive or conceived
- the beneficiary has a personal right to claim delivery of property at a future date
- ius in personam
what is dies venit
the day has come ( can never precede dies cedit)
- the moment when the beneficiary is able to demand delivery of the vested right
- the vested right becomes enforceable and enjoyment is accessible
the right to demand delivery of the bequest is called ius in personam ad rem acquirendam
