Professional Documents
Culture Documents
Chapter 1: Introduction
Systematics
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Law of succession
Law = Objective law
Objective law =
Statutory provisions (Legislation)
Common law
Customs
Court decisions
Public policy
Bones Mores (Good Morels)
Definitions
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Definitions Summary
Law of Succession
Chapter 1: Introduction
Law Of Succession
Economic Function
Social Function
Regulates transfer of wealth
Encourages to provide for
Freedom of testation
dependents
Continuation
of economic life in
Protection of family as social unit
Testate
Succession
spite of death
Incentive to stimulate creativity,
hard work, initiative, productivity
which may benefit others
Testate and Intestate Succession
Testate Succession
Intestate Succession
Valid will
No Will OR invalid Will OR not all
Deceased = testator
assets dealt with in valid Will
Wills Act 7 of 1953
Intestate Succession Act 81 of
Freedom of testation
1987
Freedom of testation
1. Testator has discretion to determine the contents of his Will
2. Testators wishes will be carried out
Constitution
BOE Trust Ltd
Law of Succession
Chapter 1: Introduction
Issues:
Section 25(1): The fundamental right to property includes a persons
right to dispose of his property during his lifetime and at his death
Section 10: The fundamental right to dignity includes freedom of
testation
During the lifetime of the deceased the beneficiary merely has a hope to
inherit
Law of Succession
Chapter 1: Introduction
Law of Succession
Chapter 1: Introduction
Botha v Botha
Herma
n en
Dina
1st
respondent
and HJ
Great
A
Chil
d
Great
B
HJ
Applica
nt
Clause 5:
Remainder of estate to children of son
If son has no children, proceed to:
Church in Standerton
Trust for study bursary for boys and girls
In 1975 HJ, A and B died
1st Respondent is his only heir
1976 Son died
Applicant is his only heir
Question:
Is the 1st respondent (as HJs heir), entitled to share in proceeds of
remainder of estate of testators?
Law of Succession
Chapter 1: Introduction
Court:
Clause 5 is direct bequest to descendants of son i.e. if there are no
lawful descendants, proceeds must go to church and trust
Question:
Did HJ and Applicant have vested rights (dies cedit) when son died?
Court:
If no conditions, the Applicant and HJs rights would have vested at
death of testator
Upon HJs death, those rights would have transferred to the 1 st
respondent
Question:
What effect does the condition in clause 5 have on the vesting of their
rights?
Court:
Condition results in postponement of dies cedit
If uncertain event upon happening of uncertain event
Court decided that only applicant entitled to benefits
Who is the owner of estate assets from date of death until the
assets are transferred to heirs?
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Beneficiary?
No because universal succession is applicable and liabilities must be
settled first
Deceased estate?
No
CIR V Emary
Executor?
Yes
In his official capacity as executor, not in the shoes of the deceased
Uncertainty
Greenberg v Greenberg
Wessels v de Jager
Rights:
Law of Succession
Chapter 1: Introduction
Greenberg v Greenberg
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Commorientes
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Ex parte Graham
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Testatrix directed that her adopted son would inherit her entire estate
But is he is predeceased, her mother would inherit her entire estate
Mother (testatrix) and adopted son died in plane crash
Court:
Considered facts and testimony
Law of Succession
Chapter 1: Introduction
Greyling v Greyling
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