STUDY UNIT 1: GENERAL INTRODUCTION TO THE LAW OF

SUCCESSION AND THE ADMINISTRATION OF DECEASED

ESTATES

1 A DEFINITION OF THE LAW OF SUCCESSION:

The Law of Succession comprises the legal rules that regulate the
devolution (distribution / division / transfer) of assets from the
estate of a deceased estate owner to such an estate owner’s
successors (beneficiaries)

2 ELEMENTS OF THE DEFINITION:

▪ The legal rules that govern the law of succession originate

from:
o statute law (acts of Parliament)
o case law (court judgments)
o the common law (Roman-Dutch law)

▪ The law of succession is concerned with the transfer of the

deceased’s assets:
o the deceased’s liabilities (the deceased’s debts that are
unpaid at the time of the deceased’s death) are not
transferred onto his/her successors

▪ Estate:
o the accumulation of the deceased’s assets and liabilities

▪ Death:
o the transfer of a deceased’s assets to his/her successors
in terms of the law of succession can occur only once
the deceased has passed away

▪ Successors:
o those who succeed to the deceased’s assets in terms of
the law of succession, in other words those who receive
the deceased’s assets after he/she has passed away
o also called the beneficiaries

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The South African Law of Succession comprises a dual system:

▪ the common law of succession

o the law of succession with its origins in Roman-Dutch
law and English law

▪ the customary law of succession

o the laws of succession of South Africa’s various Black
population groups

This module focuses almost exclusively on the common law of

succession

Where does the common law of succession fit into the broader
scheme of South African law?

SOUTH
AFRICAN
LAW

Private Public Mercantile Procedural

Law Law Law Law

Law of Property Law of Law of

Persons & Succession Obligations
Law
Family

Customary Common
law of law of
succession succession

Law of Law of Succession

Testate Intestate by Contract
Succession Succession
Law of
Testate
Succession
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The common law of succession is sub-divisible into three branches:

1 Law of testate succession – applies when the deceased has

made a will
▪ testate succession is dealt with in Study Units 4-13

2 Law of intestate succession – applies in the absence of a will

▪ intestate succession is dealt with in Study Unit 3

3 Succession by contract (in other words, where the deceased

has, prior to death, entered into a contract regarding the
division of his/her estate assets upon death) is generally
invalid, with the exception of two instances: (i) the ante-
nuptial contract and (ii) the donatio mortis causa (a contract
of donation made in contemplation of the death of the donor
(the party who donates his/her asset(s) to another upon
his/her death))
▪ succession by contract is dealt with in Study Unit 12

3 THE ADMINISTRATION OF DECEASED ESTATES

When an estate owner dies, his/her estate is subjected to a legal

process called the administration (or winding-up) of the deceased
estate

Administration is a statutory process

▪ it is regulated by the Administration of Estates Act 66 of 1965

Two important functionaries are involved in the administration

process:

▪ the Master of the High Court

▪ the executor of the deceased estate

1 The Master of the High Court

Each High Court in South Africa has a Master’s office

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The Master and his/her staff at each Master’s office attend to a
number of legal and administrative functions regarding deceased
estates, trusts, insolvent estates, curatorship, etc

The Master’s functions regarding the administration of deceased

estates:

▪ supervision of the administration process and the activities

of executors

▪ advisory and other administrative functions in regard to the

administration process

2 The executor

The executor is the party who actively administers a deceased

estate

An estate’s executor is usually nominated in the deceased’s will

▪ this kind of executor is called an executor testamentary

If the deceased left no will or the will left by the deceased contains
no nomination of an executor, the Master nominates an executor to
administer the deceased’s estate

▪ this kind of executor is called an executor dative

Nomination as an executor is not sufficient to make one an

executor – the nominated executor must also be appointed by the
Master through the issuing of letters of executorship

▪ the letters of executorship officially make a person the

executor of a specific deceased estate

▪ once the Master has issued the letters of executorship, the

appointed executor can commence with his/her functions
regarding the administration of the specific deceased estate

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An executor’s principal functions

An executor must:

▪ complete the relevant estate documents such as the death

notice, an inventory of estimated asset values, etc

▪ lodge (submit) all estate documents along with the

deceased’s original will(s) (if any) with the Master

▪ advertise to the deceased’s creditors (those persons to whom

the deceased owed money prior to his/her death) to submit
their claims against the estate, usually within 30 days of
publication of the advertisement – these advertisements
frequently appear in local newspapers

▪ pay all the claims against the estate: hospital, death-bed and
funeral expenses; all taxes still owed (e.g. income tax, capital
gains tax, etc); and all claims of creditors against the estate

❖ the executor utilises the cash available in the

estate to pay these claims

❖ if the cash in the estate is insufficient, the executor

will sell some/all of the estate assets to raise the
funds to meet all the claims against the estate

▪ if assets remain in the estate after all the claims against the
estate have been paid, the executor will distribute the
remaining estate assets among the deceased’s successors

▪ the foregoing information is reflected in the estate’s

liquidation and distribution (l&d) account, which must be
prepared by the executor

❖ the l&d account lies open for inspection for a

period of 21 days at the Master’s office and
magistrate’s office in the district where the

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 deceased was a resident in the period preceding
his/her death
❖ if no one objects against the l&d account, the
executor finalises the administration of the estate

How does the Law of Succession relate to the administration of a

deceased estate?

The Law of Succession is relevant towards the end of the

administration process when the executor transfers the net assets
in the estate to the successors (beneficiaries) of the deceased

The rules of the Law of Succession fulfil a dual purpose:

▪ it identifies the successors (beneficiaries) of the deceased, in

other words it indicates who the deceased’s successors are

▪ it determines the extent of each successor’s (beneficiary’s)

benefit, in other words, it determines which assets (and how
much of those assets) go to each successor

4 TERMINOLOGY

The following terms will be used regularly throughout the module,

and must be understood from the outset:

▪ Testate succession
o the legal rules that apply to the making and
implementation of wills, in other words the legal rules
that identify a deceased’s successors and the extent of
each successor’s benefit in terms of the deceased’s will

▪ Intestate succession
o the legal rules that apply in the absence of wills, in
other words the legal rules that identify a deceased’s
successors and the extent of each successor’s benefit
when the deceased did not do so him-/herself in terms
of a will

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 ▪ Succession by contract
o the regulation of succession through a contract
concluded between the deceased and someone else
(this contract is called a pactum successorium)
o succession by contract is generally invalid in terms of
South African law
o two valid forms of succession by contract:
❖ the ante-nuptial contract
❖ the donatio mortis casua

▪ Legatee
o a legatee is a beneficiary in terms of a will who receives
a particular asset, or a particular group of assets, or a
particular sum of money in terms of a will

▪ Legacy
o the particular asset, or particular group of assets, or
particular sum of money that a legatee receives in
terms of a will

Example:

Alfred Thomas’s will stipulates:

I leave my house at 12 Doringbos Street, Eldorado Park to my son,

Ricardo Thomas

In this example, Ricardo Thomas is a legatee, and the house is

Ricardo’s legacy

▪ Heir
o in the law of testate succession, the term ‘heir’ is used to
identify the beneficiary who receives the residue
(remainder) of the deceased’s estate after all the
legacies have been distributed
o in the law of intestate succession, the term ‘heir’ = the
term ‘successor’ or ‘beneficiary’

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 ▪ Inheritance
o in the law of testate succession, the term ‘inheritance’ is
used to identify the benefit that goes to the heir
o in the law of intestate succession, the term ‘inheritance’
is used to identify the benefit that goes to any intestate
successor (beneficiary)

Example:

Alfred Thomas’s will stipulates:

I leave my house at 12 Doringbos Street, Eldorado Park to my son,

Ricardo Thomas

I leave my yacht, Sea Breeze, to my best friend, Lionel Daniels

I leave all my other assets to my wife, Molly Adams

In this example, Molly Adams is Alfred’s heir, and her inheritance

comprises all of Alfred’s assets excluding the house and the yacht

▪ Freedom of testation
o in terms of South African law, a person who makes a
will – called a testator – has the freedom to leave
his/her assets in his/her will to whomever he/she
wants, and to impose whatever terms and conditions
he/she wants on these bequests
o freedom of testation therefore allows a testator to
disinherit whomever he/she wishes; in other words, a
will in which a testator left nothing to his/her spouse
and children, but left all his/her assets to his/her
secretary, cannot be challenged on the basis that is
unreasonable or unfair that the testator, in exercising
his/her freedom of testation, left nothing to his/her
close family members
o freedom of testation is not, however, absolute, and is
subject to some limitations
(Freedom of testation is discussed further in Study
Units 2 and 9)

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5 IS SUCCESSION A MODE OF ACQUISITION OF OWNERSHIP?

Pieter le Roux’s will states:

I leave my house at 27 Madeliefie Street, Bellville to my cousin,

Johan Combrinck

Question: does Johan Combrinck become owner of the house

immediately upon Pieter le Roux’s death by virtue of the fact that
Pieter left the house to Johan in his will?

Answer: No – Johan does not acquire ownership of the house

immediately upon Pieter’s death
▪ the law of succession is therefore not a mode of acquisition of
ownership

What, then, is Johan’s position regarding the house upon Pieter’s

death?

Greenberg v Estate Greenberg 1955 (3) SA 361 (A):

‘The position under our modern system of administering

deceased estates is that when a testator bequeaths property to a
legatee the latter does not acquire the dominium [ownership] in
the property on the death of the testator but what he does
acquire is a vested right to claim from the testator’s executors at
some future date delivery of the legacy, i.e. after confirmation of
the liquidation and distribution account in the estate of the
testator.’

Johan therefore obtains a personal right against the executor of

Pieter’s estate to claim transfer of the house from the executor
once the l&d account of Pieter’s estate has been confirmed

Johan obtains this personal right by operation of law (ex lege) upon
the moment of Pieter’s death

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 ▪ Pieter’s death is called the moment of dies cedit (pronounced
dee-ays kay-dit) or the moment that the personal right to
claim the house vests in (is acquired by) Johan

Johan cannot, however, claim the house immediately upon Pieter’s

death – he must wait until the administration of Pieter’s estate has
been finalised and the l&d account has been confirmed – only then
can Johan enforce his right to the house against the executor of
Pieter’s estate

▪ The moment upon which Johan’s right to claim transfer of the

house from the executor of Pieter’s estate becomes
enforceable upon confirmation of the l&d account is called
the moment of dies venit (pronounced dee-ays vay-nit)

6 THE REQUIREMENTS FOR SUCCESSION TO OCCUR IN FAVOUR OF

A SUCCESSOR:

▪ The estate owner must have died or a court must have issued
an order of the presumption of death in regard to the estate
owner

▪ The successor must have been born at the moment of dies

cedit or must have been conceived at that time and later be
born alive (nasciturus fiction)

▪ The successor must have survived the deceased estate owner

(in other words, the successor must ‘out-live’ the deceased)

o if a beneficiary died before the deceased (in other

words, the beneficiary predeceased the deceased)
succession in favour of that beneficiary cannot occur

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Example:

Thandi Zeni’s will stipulates:

I leave my Toyota Yaris, registration number CY 38864, to my best

friend, Khotso Dube

If Khotso died in 2020 and Thandi died in 2022, Khotso predeceased

Thandi and will not receive the Toyota

o if a beneficiary died simultaneously with the deceased,

succession in favour of the beneficiary cannot occur
because the beneficiary did not survive (out-live) the
deceased
o in these circumstances the deceased and the
beneficiary are referred to as commorientes – people
who died simultaneously

Example:

Thandi Zeni’s will stipulates:

I leave my Toyota Yaris, registration number CY 38864, to my best

friend, Khotso Dube

Thandi and Khotso travel together from Pretoria to Bloemfontein

on a Greyhound bus. The bus is involved in a head-on collision with
a lorry near Kroonstad. Thandi and Khotso are killed on impact.

Khotso cannot receive the Toyota because Khotso and Thandi died
simultaneously (they were commorientes) and Khotso did therefore
not survive (out-live) Thandi

▪ the beneficiary must be competent to receive a benefit; in

other words, the beneficiary must not be disqualified from
succession for some reason (disqualification is discussed
further in Study Unit 8)

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STUDY UNIT 1: SELF-ASSESSMENT QUESTIONS

A MULTIPLE-CHOICE QUESTIONS

1 The law of succession forms part of the following branch of South African
law:
(a) Public law;
(b) Private law;
(c) Commercial law;
(d) Procedural law;
(e) Comparative law.

2 The law of succession determines:

(a) the extent of a deceased’s estate (in other words, the extent of a
deceased’s assets and liabilities);
(b) the identity of a deceased’s successors (beneficiaries);
(c) the extent of the benefit that each of a deceased’s successors
(beneficiaries) will receive;
(d) (a); (b) and (c);
(e) (b) and (c).

3 Z’s will contains the following testamentary provision: ‘I leave my BMW

X5 to A and the rest of my possessions to B.’ In respect of this provision:
(a) A is a legatee and the BMW X5 is a legacy;
(b) B is an heir and the residue of the estate (‘the rest of my
possessions’) is an inheritance;
(c) if B died on 1 January 2017 and Z died on 1 February 2017, B can
nevertheless inherit the residue of Z’s estate;
(d) (a) and (b);
(e) (a); (b) and (c).

B TRUE-OR-FALSE QUESTIONS

1 An executor dative is an executor nominated by the Master of the High

Court in the absence of a testamentary nomination of an executor.

2 The Master of the High Court appoints an executor through the issuing
of letters of executorship.

3 ‘Dies venit’ refers to the moment of vesting (a successor’s acquisition of

a personal right against the executor of the deceased’s estate), whereas
‘dies cedit’ refers to the moment of enforceability of the aforementioned
right.

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