The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons (for example, beneficiaries and creditors) may have in a deceased's estate. It forms part of private law.
The manner in which assets are distributed depends on whether the deceased has left a valid will or other valid document containing testamentary provisions, such as an antenuptial contract. If the deceased has not left a valid will or valid document containing testamentary provisions, the deceased dies intestate; similarly, if the deceased leaves a valid will which does not dispose of all property, there is an intestacy as to the portion not disposed of. In the event of intestacy, the assets are distributed in a definite order of preference among the heirs, as stipulated by the Intestate Succession Act, 1987. Until recently, the Act (and its common-law precursor) existed side by side with a statutorily-regulated customary-law regime of intestate succession, applied on a racial basis, but this was brought to an end when the Constitutional Court, in Bhe v Magistrate, Khayelitsha, made the Intestate Succession Act applicable to all.
Where the deceased dies leaving a valid will, the rules of testate succession apply. These are derived from common law and the Wills Act, 1953. Testate succession is governed by the general premise that the assets of the deceased are distributed in accordance with the provisions of the will. If specified property is left to a person, the disposition is termed a "legacy." Legacies are distributed first; any residue in the estate is given to the person, if any, who is appointed as heir. If the will appoints more than one heir, the residue is divided among them.
Dual character
The law of succession comprises two branches, namely the common law of succession and the customary law of succession. These enjoy equal status and are subject to the Constitution of South Africa and other legislation. The common law of succession is divided into the testate law of succession and the intestate law of succession, whereas the customary law of succession only operates intestate.
Conflict of laws
There are various rules for determining whether the common-law rules or the customary-law rules are applicable:
The common law of succession applies to testate succession except if a testator, living under customary law prescribed otherwise in his or her will or if a court decides otherwise. The Intestate Succession Act applies to all intestate estates irrespective of the cultural affiliations of the deceased.
Succession may take place in three ways:
in accordance with a valid will (testamentary succession); through the operation of intestate succession (without a valid will); and in terms of a succession agreement (pactum successorium) contained in a duly registered antenuptial contract or a gift mortis causa.
Scope of succession
The capacity to have rights and duties is called legal subjectivity, which is terminated by death. The consequences of the termination of legal subjectivity are as follows:
The subject is known as the deceased. If the deceased has a valid will, he or she is known as a testator or testatrix respectively. The deceased's estate—all of the deceased's assets and liabilities—is gathered together. The deceased's debts and administration costs are paid. The remainder of the assets then pass to persons qualified to succeed him.
When a person dies, everything remaining of his assets (once debts, obligations and administrative costs have been reclaimed) passes by inheritance to those qualified to succeed him.
The law of succession is the totality of the legal rules which control the transfer of those assets of the deceased which are subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of disposal.
If there is a valid will which sets out the wishes of the testator, the estate is administered in terms of the law of testate succession. A will is a unilateral declaration regarding how the estate is to be apportioned. A person may make also bequests in terms of an ante-nuptial contract. Both natural and juristic persons may be beneficiaries in terms of a will.
If there is no will, or if the will is invalid, the estate devolves in terms of the law of intestate succession.