In South Africa, the distribution of a person’s estate after their death is governed by a set of legal principles known as the law of succession. This body of law ensures that the assets of a deceased individual are allocated according to their wishes or, if no ‘will’ is made, in accordance with statutory rules.
Understanding this law is essential, as it guides how estates are administered, how heirs are determined, and how disputes may arise. For those managing an estate or preparing a ‘will’, familiarity with succession law is important to ensure that a deceased person’s wishes are fulfilled and their estate is handled fairly.
In this article, we will learn about succession law in South Africa, its types, importance and more.
Table of Contents
Why is the Law of Succession Important?
Succession law in South Africa determines how a deceased person’s estate is distributed, ensuring that assets are allocated fairly and according to legal guidelines. If someone dies without a will, the ‘Intestate Succession Act 1987’ specifies a clear order for dividing their estate. However, when a valid ‘will’ is in place, the rules of testate succession, based on common law and the ‘Wills Act of 1953’, apply.
Below are the reasons why succession law is important in South Africa:
- Ensures Fair Distribution of AssetsThe law of succession ensures that a deceased person’s assets are distributed fairly among their heirs. It provides a clear legal framework for dividing property, whether through a ‘will’ or statutory rules.
- Protects the Deceased’s WishesWhen a person creates a valid ‘will’, the law ensures their wishes are respected. This allows individuals to decide who receives their assets after their death.
- Prevents Family DisputesThe law helps avoid conflicts by clearly outlining how an estate should be shared. It reduces the chances of disputes among family members or potential heirs.
- Governs Intestate SuccessionIn the absence of a ‘will’, the law of succession, particularly the Intestate Succession Act, governs how the deceased’s estate is divided. This ensures that assets are allocated according to a set order of preference.
- Provides Legal ClarityThe law offers a structured process for estate administration, making it easier to manage. It also provides legal clarity for executors, heirs, and beneficiaries in handling the estate.
- Simplifies Estate AdministrationBy establishing clear guidelines, the law of succession helps speed up the administration of estates. This ensures that assets are distributed in a timely and organised manner.
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Types of Succession in South Africa
In South Africa, the succession law outlines how a person’s estate is divided after death. There are two main types of succession: common law succession and customary law succession. Each type has different rules, and it is important to understand how they work when managing an estate. Let us know the types of succession law in South Africa below:
1. Common Law of Succession
- Common law succession is divided into two parts: testate and intestate succession. Testate succession applies when the deceased has left a valid ‘will’, and their estate is divided according to their wishes.
- Intestate succession occurs when there is no valid ‘will’, and the estate is shared according to the law, such as the Intestate Succession Act.
2. Customary Law of Succession
- Customary law applies when a person dies without a ‘will’ and follows traditional customs, especially in rural communities.
- This type of succession only applies to intestate estates and involves passing property based on cultural practices within the community.
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What Happens When There is No Will?
When someone passes away without leaving a valid ‘will’, the distribution of their estate becomes subject to the rules of intestate succession. This means that the deceased’s assets will be distributed according to the Intestate Succession Actof 1987. If there is no ‘will’ at all, or the ‘will’ is invalid, the estate is considered to be totally intestate.
The assets will then be shared among the deceased’s closest relatives, such as their spouse, children, or parents, according to a set legal order. If the ‘Will’ only disposes of part of the estate, the remaining assets will be handled through partial intestacy. In cases where no suitable heirs are found, the estate may eventually go to the state.
What is a Valid Will in South Africa?
A valid ‘will’ in South Africa is a legal document that outlines how a person’s estate will be distributed after their death. For a ‘will’ to be considered valid, it must meet specific legal requirements set out in the Wills Act of 1953. If the requirements are not met, the ‘will’ may be deemed invalid, and the estate may be divided according to the law of intestacy. Let us know what a valid ‘will’ is as per the law of succession in South Africa below:
- Testator’s Capacity: The person making the ‘will’ (the testator) must be of sound mind and at least 16 years old.
- Written Document: The ‘will’ must be in writing, either typed or handwritten. Oral ‘will’; is not legally recognised unless made in very specific circumstances (such as in imminent peril of death).
- Signature: The testator must sign the ‘will’ or direct someone else to sign it on their behalf in their presence.
- Witnesses: The ‘will’ must be signed in the presence of at least two competent witnesses. These witnesses should not be beneficiaries under the ‘will’, as this could invalidate their inheritance.
- Clear Intentions: The ‘will’ must clearly express the testator’s intentions, indicating how they want their estate to be distributed.
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Customary Law of Succession in South Africa
In customary law, succession involves more than just property; it includes the transfer of status. This happens when the family head passes away, and someone must succeed them in their role. The successor inherits both the status and any responsibilities associated with it. Learn more about the customary law of succession below:
1. General and Special Succession
There is a distinction between general succession and special succession. General succession refers to inheriting the deceased’s overall status, while special succession refers to taking over the position of the head of one of the deceased’s houses or family branches.
2. Male Primogeniture
Succession follows the rule of male primogeniture, meaning the firstborn son of a particular house is the one who succeeds the deceased family head. This rule ensures that the family line continues through male descendants.
3. Customs of Succession
In some communities, customs like ukungena and ukuvusa help ensure that a deceased person’s family line continues.
4. Ukungena
A widow is expected to marry one of her husband’s brothers to continue the family line, especially if the deceased had no children.
5. Ukuvusa
The deceased’s brother or another relative may take the deceased’s property and marry the deceased’s wife, with their children being recognised as the deceased’s children.
6. Constitutional Changes
The Constitutional Court’s ruling in Bhe v Magistrate, Khayelitsha, declared the rule of male primogeniture unconstitutional. This case brought about significant changes to the customary law of succession, making it more equitable and inclusive.
7. Lack of Nasciturus Fiction in Customary Law
Unlike common law, customary law does not have the concept of nasciturus fiction, where unborn children are considered as having rights from conception. However, some communities have their own customs to address inheritance for unborn children.
8. Succession and Property Types
The rules of succession in customary law can depend on the type of property and the status of the deceased. Some property, particularly land and family roles, may pass differently compared to personal belongings.
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How to Ensure a Smooth Succession Process?
Ensuring a smooth succession process is important for minimising disputes and ensuring that assets are transferred according to a person’s wishes. Adhering to the law of succession and following the correct legal procedures can help streamline the process. By taking the right precautions, individuals can ensure that their estate is managed properly, preventing complications during the transfer of rights and duties. Let us know how to ensure a smooth succession process below:
1. Consider the Impact of Customary Law
If a person follows customary law, it is important to understand how their community’s succession customs may affect the estate. They should ensure that their family is aware of any customary rules that may apply, such as male primogeniture or other inheritance customs like ukungena and ukuvusa.
2. Consider the Competence of Beneficiaries
It is important to ensure that the beneficiaries named in the ‘will’ or under the rules of intestate succession are legally competent to inherit. If certain individuals are not competent (due to age, mental incapacity, or other reasons), provisions should be made for substitute heirs or trusts.
3. Consult a Legal Expert
Consulting a lawyer or legal professional specialising in the law of succession helps ensure that the ‘will’ is legally sound. Legal professionals can guide individuals through both common law and customary law requirements, ensuring that the succession plan is properly executed.
4. Provide for Unborn Beneficiaries
If there is a possibility of unborn children being beneficiaries, the ‘will’ should include provisions for them. In common law, a child conceived before death but born afterwards can still inherit.
5. Appoint a Reliable Executor
Choosing the right executor is important for ensuring the smooth administration of an estate. The executor should be trustworthy, organised, and familiar with the legal process of managing estates. Their responsibility is to distribute assets, pay debts, and ensure that the ‘will’ is executed according to the deceased’s wishes.
6. Ensure Proper Record-Keeping
Keeping organised records of all assets, debts, and relevant documents is essential. This includes bank accounts, property deeds, and business interests. Detailed records will make the succession process smoother and help the executor handle the estate easily.
Conclusion
The law of succession in South Africa ensures the fair and orderly distribution of a deceased person’s estate, whether through a ‘will’ or statutory rules. By understanding its principles, including testate and intestate succession, and considering factors like customary law, individuals can manage their estates easily. To ensure a smooth succession process, consulting legal professionals and making informed decisions is essential. Familiarity with these laws is essential for protecting one’s wishes and preventing future conflicts over estate distribution.
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The Law of Succession in South Africa – FAQs
What is the law of succession in South Africa?
The law of succession in South Africa refers to the legal principles that govern how a deceased person’s estate is distributed, either according to their ‘will’ or, if no ‘will’ exists, by statutory rules.
What happens if someone dies without a ‘will’ in South Africa?
The estate is divided according to the Intestate Succession Act of 1987, following a set order of preference among relatives.
What are the requirements for a valid ‘will’ in South Africa?
The ‘will’ must be in writing, signed by the testator, witnessed by at least two competent witnesses, and the testator must have mental capacity.
What is testate succession?
It refers to the distribution of an estate according to a valid ‘will’ left by the deceased.
What is intestate succession?
It is the distribution of an estate when there is no valid ‘will’, following the rules set out in the Intestate Succession Act of 1987.
How does customary law impact succession in South Africa?
Customary law governs succession in certain communities, often involving the inheritance of both property and status and was influenced by rulings like Bhe v Magistrate, Khayelitsha.
