Study Unit 3: The Law of Intestate Succession

Question 1

When does the Law of Intestate Succession apply?

Answer 1

In 4 cases:
- deceased left no will at all
- will left is invalid and not-condonable in terms of s2(3) of WA
- valid will left by the deceased becomes inoperative and can’t be implemented (wholly/in part)
- deceased’s valid will regulates the devolution of part of their assets.

Question 2

What are the 3 types of blood relationships

Answer 2

Descendants: descend directly from the dead

Ascendants: who the dead directly descends from

Collaterals: blood relatives other than ascendants/descendants, sharing at least one common ascendant

Question 3

Full blood collaterals

Answer 3

share two common ascendants

Question 4

Half blood collaterals

Answer 4

share 1 common ascendant

Question 5

1st Parentela

Answer 5

spouse + descendants of the deceased

Question 6

2nd Parentela

Answer 6

parents of the deceased + their descendants, excluding those in the 1st Parentela

Question 7

3rd Parentela

Answer 7

Grandparents of the deceased + their descendants (excluding those in 1st and 2nd)

Question 8

Stirps

Answer 8

• any surviving child of the dead who can be an intestate heir.
• any dead child of the deceased who leaves descendants who can be intestate heirs

Question 9

Representation

Answer 9

when the place of an intestate heir who can’t/won’t inherit is taken by 1 or more descendants who qualify to inherit

Question 10

How to determine degrees of relationships

Answer 10

Signify distance between various blood relatives
- number of generations between particular ascendants and descendants.
- between collaterals, calc. number of generations from one relative to first common ascendant/descendant and then number of generations from common ascendants to the other relative.

Question 11

s1(1)(a) of the Intestate Succession Act

Answer 11

The deceased is survived by spouse/s but not by any descendants.

• surviving spouse/s inherit net estate
• if multiple spouses, divided equally between them

Question 12

S1(1)(b) of the Intestate Succession Act

Answer 12

The deceased is survived by descendant/s, but not by any spouse/s.

• descendants inherit net intestate estate
• in 1st Parentela: division of an estate between multiple descendants occurs per stripes with representation as per s1(4)(a) of the Intestate Succession Act

Question 13

s1(1)(c) of the the Intestate Succession Act

Answer 13

The deceased is survived by spouse/s and descendant/s.

• if they died on/after 24 November 2014: Spouse inherits either a child’s portion of the net intestate estate, or R250 000 (determined by Minister of Justice and correctional services by way of notice in govt. gazette) - whichever is larger
  — (if before 24 November: R125 000)
• if multiple spouses, each gets the same amount determined by this rule.
• Child’s portion: Net Intestate Estate divided by number of kids and spouses. If there is any residue, its divided amongst descendants.

Question 14

s1(1)(d)(i) of the Intestate Succession Act

Answer 14

The deceased isn’t survived by spouse or descendants, but by both parents.
- split between them in equal shares.

Question 15

s1(1)(d)(ii) of the Intestate Succession Act

Answer 15

The deceased is survived by one parent + descendants of other parent.
- Half goes to parent, other half goes to descendants, split equally.

Question 16

s1(1)(e)(i) of the Intestate Succession Act

Answer 16

The deceased is survived by descendants of parents only.
- NIE split in two, one half goes to to those of mother, the other half to those of father.

• ** in the 2nd Parentela, division of an intestate estate btw multiple descendants occurs per stirpes with representation - s1(4)(a) of the Intestate Succession Act

Question 17

s1(1)(e)(ii) of the Intestate Succession Act

Answer 17

The deceased is survived by one descendant of one dead parent.
- inherit the entire NIE

Question 18

s1(1)(f)

Answer 18

The deceased isn’t survived by spouse, descendants, parents or their descendants.

Only survived by blood relatives in the 3rd/further Parentela.
- NIE divided equally amongst relatives most closely related by degree to the deceased
- Intestate Estate from 3rd Parentela divided per capita according to the RD principle “die naaste bloed erf die goed”

Question 19

Position of the Adopted Child in the Law of Intestate Succession

Answer 19

read together S1(4)(e) of the ISA with s242(3) of the Children’s Act 38 of 2005.

• adopted child is for all purposes a child of the adoptive parents and vice versa.
• adoptive child no longer the child of their biological parents
• can inherit from adoptive parents but not biological parents (and vice versa)
  – doesn’t apply if natural parent also adoptive parent/married to adoptive parent.

Question 20

s1(2) of the Intestate Succession Act

Answer 20

Child born out of wedlock’s position doesn’t affect their capacity to inherit from blood relations

Question 21

When does dies cedit occur in the law of Intestate Succession?

Answer 21

i.e., when do various intestate heirs obtain personal rights against the executor of the deceased estate to claim payment of their respective intestate shares?

• occurs upon death. invalid will also occurs upon death

Question 22

Harris v Assumed Administrator, Estate MacGregor 1987

Answer 22

Dies Cedit for deceased’s Intestate heirs occurs on deceased’s death. Invalid will also occurs upon death.

Question 23

How is unworthiness to inherit determined?

Answer 23

based on decisions of public policy and certain established grounds of unworthiness

Question 24

What are the established grounds for unworthiness to inherit?

Answer 24

• De bloedige hand neemt geen erfenis – person who murdered the dead cannot inherit from them
• Person who negligently caused the death of the deceased cannot inherit, particularly if person acted in morally blameworthy manner, by reason of previous rule.
• Person who murdered one or more to the dead’s conjunctissimae personae (persons most closely related to dead) cant inherit.
• Person who stands to receive inheritance by reason of crime committed/other unlawful conduct perpetrated vs dead cannot inherit from dead.

Question 25

Ex Parte Steenkamp and Steenkamp 1952

Answer 25

Court found that person’s ‘conjunctissimae personae’ generally parents, spouses and kids.

Question 26

Casey v The Master 1992

Answer 26

• husband convicted of culpable homicide of wife wasn’t disqualified from receiving half of joint estate in terms of matrimonial property law
• however, he was disqualified from inheriting in terms of wife’s will bc of common law and public policy.
  – he acted in a morally blameworthy manner

Question 27

Pillay v Nagan 2001

Answer 27

Son who forged the will of his mother was unworthy of being an intestate heir.
- based on the consideration that he sought to deprive his siblings of their share of the mother’s estate by making false will for his mother where he was the primary beneficiary.

Question 28

s1(7) of the Intestate Succession Act

Answer 28

If a person is disqualified from being an heir of an intestate estate/renounces their right to be such an heir, any benefit which they would have received if they had not been ‘cut off’ of their right, shall, subject to the provisions of ss (6) devolve as if they had died immediately before the death of the deceased, and, if applicable, if they were not so disqualified.

Question 29

s1(6) of the Intestate Succession Act

Answer 29

If descendant of the deceased, excluding a minor/mentally ill descendant, who, together with the surviving spouse of the deceased, is entitled to benefit from an intestate estate renounces their right to receive such a benefit, such benefit shall rest in the surviving spouse.

– only applies in very specific circumstances