Study Unit 2: Law of Succession and the Constitution Flashcards
What does the Intestate Succession Act 81 of 1987 say about the primary heir of a deceased left intestate?
- dead’s surviving spouse is the primary intestate heir.
- Spouse = married partner in a valid, monogamous civil marriage according to the Marriage Act 25 of 1961 at the time of death.
- has been extended, civil union partner etc.
Daniels v Campbell
Spouse includes one in a Monogamous Muslim marriage according to Muslim marriage rites
Laubscher v Duplan and Gory v Kolver
Partner in same-sex life partnership in which partners have taken reciprocal duties of support = spouse
Govender v Ragavayah
Surviving partner of a monogamous Hindu marriage = spouse
Hassam v Jacobs
Spouses in polygynous Muslim marriage in accordance w/ Muslim rites can inherit intestate, and claim maintenance.
S6 of Interpretation Act 33 of 1957 provides that every law in singular exists in the plural, MSSA allows for multiple claims without straining the language of the act.
Bwanya v The Master
Surviving partner in opposite sex life partnership can inherit intestate.
Partner can claim bc undertook reciprocal duties of support.
Wilsnach v The Master
Grandparent in parental role can inherit intestate bc no specific definition of a parent in the children’s act
Bhe v Magistrate
CC found that differentiation between black and non-black intestate estates unfairly discriminatory. SO, CC found that S23 of BA act and s1(4)(b) inconsistent w/ constitution and invalid.
Customary Law and Intestate Succession
CS ordered that Intestate Succession Act applies intestate estate formerly governed by S23 of Black Administration Act.
- Leg then repealed BAA by enacting repeal of the BAA and Amendment of Certain Laws Act 28 of 2005. Also enacted reform of customary law of succession and regulation of related matters act 11 of 2009.
This act: provides that ISA regulate the devolution of whole/part of estate of any person subject to customary law and who dies after commencement of act
Maintenance upon Death
Deceased’s surviving spouse can bring a maintenance claim against deceased’s estate for reasonable maintenance insofar as spouse unable to meet own maintenance need from own means and earnings.
- Statutory claim in terms of maintenance of surviving spouses act 27 of 1990.
- Traditional meaning of spouse/survivor for purposes of Maintenance of Surviving Spouses Act = person deceased married to at time of death in valid, monogamous civil marriage concluded in terms of the marriage act.
- South African legislation and courts extended spousal concept beyond this limited, traditional meaning in number of important statutes and judgements.
Volks v Robinson
Can a surviving partner in an opposite-sex life partnership institute a maintenance claim?
NO.
High court ruled that excluding this partner from maintenance is unfair discrimination on grounds of marital status.
BUT, ‘heterosexual life partners’ doesn’t fit neatly into ordinary meaning of the word spouse (its a leap, not an instinctive understanding)
- so, even though it’s discrimination, it isn’t unfair.
- this is bc heterosexual couples, CAN get married, and so not doing so nullifies the entitlement to the protection afforded by the act.
In re BOE Trust Ltd 2013
The SCA affirmed that constitutionally guaranteed rights support freedom of testation in South African law
- right to property and right to human dignity.
Applicants sought an order in WC HC removing discriminatory limitation from a testamentary bursary bequest to 4 South African universities that granted bursaries to white students only.
HC didn’t grant application and applicants appealed to SCA.
SCA said: freedom of Testation is paramount value in South African law of testate succession; refusal of the 4 uni’s charged in terms of the will w/ the selection of bursary recipients (bc uni’s objected to racial exclusion) made it impossible to implement bursary request;
- testator envisaged probability of the bursary bequest being impossible to implement, and ID’ed a number of charities that had to be benefitted instead.
- Alternative devolution in favour of the charities thus had to occur, in acc w/ testator’s directions. Appeal vs WC HC’s judgement consequently dismissed.
King v De Jager
Addresses question of whether testator can limit testamentary benefits in a private bequest (other than charitable trust) on the basis of gender.
Testators created a fideicommissum in respect if immoveable property in favour of their child, and stipulated that after their kids, property could only devolve to male descendants.
- Does the exclusion of female descendants constitute unfair discrimination that lets court strike down the request?
- WCHC answered in negative, CC subsequently ruled that exclusion of female descendants inconsistent with CSA thus unenforceable. CC had
3 decisions in case:
- (MIN) common law must be developed to restrict freedom of testation by including unfairly discriminatory disinheritances on private bequests under rule of cant enforce testaments that are vs pub pol.
- (MAJ) no need to dev common law, bc unfairly discriminates against disinheritances in private bequests = ipso jure in vio of pub pol and thus unenforceable in term of existing common law pub pol.
- 2nd judgement reasoned that impugned clause occasioned a disinheritance based on gender, one of the grounds in s9 of const., so unenforceable bc discrim and vs pub pol.
- 3rd, (concurring) judgement relied on app of promotion of equality… act to resolve matter, bc invoking this act in casu effectuated transformative constitutionalism in testamentary succession, thus concluded that substantive = and ubuntu demand decontextualization of freedom of test. In SA to address distributive consequences of private dispositions in an un= soc.
Minister of Education v Syfrets Trust
Applicants sought order by removing discriminatory limitations from testamentary bursary bequest that granted bursaries to students at UCT if they were of European descent, and weren’t Jewish or female.
Court found that limitation of bursary eligibility was indirect discrimination based on race or colour (euro part) and religion and gender (female and Jewish part) under s9 of constitution.
- Limitations thus contrary to public policy.
Court’s order: in terms of existing principle of common law (effect not given to testamentary provisions contrary to pub pol), will was amended through deletion of the offending references to race, gender and religion from the will.
