march succ test : topic 1

Question 1

succession takes place in 3 ways

Answer 1

1. testate succession
2. intestate succession
3. contract

Question 2

difference between testate and intestate succession

Answer 2

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.

Question 3

testator

Answer 3

a male or female individual who executes a will

Question 4

estate

Answer 4

consists of both assets and liabilities, In SA beneficiaries only inherit assets

Question 5

revocation

Answer 5

revoke a will or clause in a will. Act by which a testator cancels a will

Question 6

trustee

Answer 6

controls trust property to the advantage of the beneficiaries

Question 7

legatee

Answer 7

a person to whom specific property is bequeathed

Question 8

heir

Answer 8

a person who is entitled to inherit from a person’s estate

Question 9

trust

Answer 9

allows one to control use of money after death , controlled by trustees

Question 10

repudiation

Answer 10

rejection of a benefit

Question 11

collation

Answer 11

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

Question 12

free from community of property/ exclusion from marital property

Answer 12

MPA s 5(1) automatically excludes inheritance from accrual calculation unless the contrary is agreed to in the couple’s ANC in (OCOP)

Question 13

what are the 3 types of executors

Answer 13

1. executor testamentary : stipulated in a will, appointed by master of HC
2. executor dative: intestate, if no executor nominated, master of HC nominates
3. executor assumed: executor testamentary appoints a co executor

Question 14

can a minor be appointed an executor

Answer 14

a minor can only be appointed as executor if they are a major when they have to do the job

Question 15

what are the duties of an executor

Answer 15

1. collect assets
2. sell assets
3. continue the business of the deceased
4. pay creditors
5. distribute residue of estate

Question 16

what is the deceased estate

Answer 16

• 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

Question 17

what is the residue of the deceased estate

Answer 17

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.

Question 18

who owns the assets in the deceased estate

Answer 18

• 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

Question 19

Greenberg ratio

Answer 19

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.

Question 20

what is the definition of an executor

Answer 20

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).

Question 21

what is the power of assumption

Answer 21

• 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

Question 22

what happens if the executor makes a wrong distribution

Answer 22

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

Question 23

what happens if the executor refuses to institute proceedings to recover estate debts or to make claims

Answer 23

1. remove executor from office ( cumes)
2. 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
3. executor can cede the right of action to the beneficiary ( Cohen)

Question 24

Adiation and formalities

Answer 24

Adiation is the acceptance of a benefit from the testator’s estate. Usually inferred from the beneficiaries conduct.

Express adiation is no longer required

Question 25

Repudiation and formalities

Answer 25

Rejection of a benefit from estate of testator ( intestate or testate)

Must be done in writing and then the person will receive no benefits

Question 26

why would a person repudiate

Answer 26

1. personal reasons
2. onerous conditions attached to inheritance
3. to reverse a massing

Question 27

what is the effect of repudation

Answer 27

this varies according to the provisions of the will and the various circumstances

1. substitution in place of repudiating beneficiary
2. accrual to other beneficiaries shares of the estate
3. repudiated share falls in to residue inherited by residual heirs
4. May devolve in accordance with intestate succession

Question 28

when does the doctrine of election apply

Answer 28

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)

Question 29

when is partial repudiation allowed

Answer 29

1. no conditions attached
2. no prohibition of such in the will
3. spirit of the will is not compromised

Question 30

Wessels v De jager ratio

Answer 30

An insolvent beneficiary can repudiate an unconditional inheritance as long as this repudiation does not prejudice his creditors

Question 31

when is the exact moment of death

Answer 31

exact moment of death unsettled in SA
traditional approach: cessation of heart and lung activity
modern medical approach: cessation of brain activity

Question 32

S v Williams ratio

Answer 32

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.

Question 33

when is death not a precondition for succession ( EXCEPTIONS)

Answer 33

1. presumption of death order

2. estate massing

Question 34

what are commorientes

Answer 34

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.

Question 35

what is the general rule of survivorship/ commorientes

Answer 35

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.

Question 36

ex parte Graham ratio

Answer 36

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.

Question 37

greyling ratio

Answer 37

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.

Question 38

what is the nasciturus fiction

Answer 38

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

Question 39

what is dellatio

Answer 39

when the estate falls open

Question 40

what is dies cedit

Answer 40

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

Question 41

what is dies venit

Answer 41

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