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LAW of SUCCESSION PVL2602 - 3.3 Formalities where the testator signs…

- - - - person who administers the estate of a deceased
    - - branch of PRIVATE LAW
        
        legal rules or norms which regulate the devolution of a deceased person’s estate upon one or more persons.
    - - assets and the liabilities he had at the time of his death
    - - that part of the deceased’s estate which remains after the payment of funeral expenses, administration costs, tax, the deceased’s debts and the legacies.
    - - heir or legatee refuses to accept a benefit from a deceased’s estate (must repudiate expressly).
    - - When a beneficiary accepts a benefit from a deceased’s estate (assumed).
    - - inherits a legacy which is a specific asset or a specific amount of money
    - - inherits the residue of the estate.
    - - when the property which is left behind must go to an heir.
    - - the devolution of the deceased’s estate
        
        3 TYPES of Succession
        
        by virtue of a will (testamentary succession)
        
        by virtue of the law (intestate succession)
        
        by virtue of an ante nuptial contract
  - - - not certain in SA law
        
        problem is whether death should be defined
        
        the termination of both heart and brain activity
        
        whether brain death is sufficient
        
        CASE LAW: S v Williams indicates that brain death may be enough.
    - - High Court may grant an order presuming the death of a person upon which his estate can be administered.
      - Constitutes an exception to the rule that a testator must be dead before succession can take place.
      - CASE LAW:
        
        Re Beaglehole
    - - Commorientes - several people lose their lives in the same disaster.
      - Rule
        
        if it cannot be established beyond doubt who died first, no presumption of either simultaneous death or of survival exists.
        
        Thus courts will find that commorientes died simultaneously.
      - CASE LAW :
        
        Ex parte Graham
        
        , Ex Parte Chodos Greyling v Greyling.
    - - Exception to the rule that a person must be deceased before succession can take place:
        
        When two testators, in a joint will, mass their separate estates, or part of their estates, and jointly make provision for the disposition of the massed estates as a single unit.
        
        The joint will disposes of the surviving testator’s assets, and this disposition comes into operation on the death of the first-dying testator although the surviving testator is still alive.
    - - Juristic act
        
        an act which is intended to create or alter rights and / or obligations, and it is an act to which the law attaches at least some of the consequences envisaged by the acting party or parties.
      - Unilateral juristic act
        
        making of a will): performed by the activity of only one person. It is only one person’s actions that establish a will and it is only this person’s intention that is contained in the will.
      - Multilateral juristic act
        
        conclusion of a contract, i.e. donation): a juristic act which is be performed only through the cooperation of two or more persons.
  - - - Regulated by the Intestate Succession Act 81 of 1987.
      - identifies the heirs to a deceased estate
        
        the deceased has failed to regulate the devolution of his or her estate by will or antenuptial contract
        
        or where it is impossible to carry out the wishes of the deceased because the beneficiaries are unable to inherit, do not wish to inherit or are predeceased
        
        It is possible for a person to die completely intestate or only partly intestate.
  - - - Ascendants
        
        ancestors of the deceased, i.e. mother, father, grandmother, grandfather (in other words, anybody in the ascending (upwards) line of relationship.)
      - Descendants
        
        lineal descendants of the deceased (anyone in the direct line below the deceased).
        Intestate succession states that no distinction is drawn between biological, adopted and extramarital children.
        
        Adopted CHILDREN
        
        Section 1(4)(e):
        
        an adopted child shall be deemed a descendant of his or her adoptive parents and not a descendant of his or her natural parents, except
        
        in the case of a natural parent who is also the adoptive parent of that child
        
        who was, at the time of the adoption, married to the child’s adoptive parent.
        
        Extramarital ((illegitimate) Children
        
        Section 1(2): illegitimacy does not affect the capacity of a blood relation to inherit ab intestato from another blood relation.
      - Collaterals
        
        persons related to the deceased through at least one common ancestor or ascendant, for example brothers, sisters, cousins
    - - Every group of parents and their descendants constitute a parental.
    - - Every descendant of the deceased who survives the deceased AND/ OR a predeceased descendant of the deceased who leaves living descendants forms a stirps.
    - - The order in which the intestate heirs inherit from the deceased person:
        
        per capita
        
        when they inherit equal shares according to the law of intestate succession
        
        ground of the degree of consanguinity in which they stand to the deceased.
        
        more than one person related to the deceased person in the same degree of consanguinity, each inherits an equal share per capita.
        
        by representation (per stirpes)
        
        when he, as an heir in the direct line of descendants, replaces his predeceased ancestor
        
        Representation also takes place when a descendant replaces an heir who has repudiated or who is unable to inherit
    - - Sections 1(6) and 1(7) provide for substitution ex lege:
        
        Substitution takes place where an heir inherits in the place of an heir who was supposed to inherit in the first place is unable to inherit or repudiates his benefit.
        
        Subsection 6
        
        if a descendant of a deceased person who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate, renounces his right to receive such a benefit, it will vest in the surviving spouse.
        
        Subsection 7
        
        if a person is disqualified from being an intestate heir or if he renounces his right to be such an heir, any benefit which he would have received shall devolve as if he had died immediately before the deceased died. This means that he can be substituted by his descendants. However, this subsection is subject to the provisions of subsection 6.
    - - To determine degree of consanguinity:
        
        Direct Line
        
        each generation counts as 1 degree
        
        Father = 1 DEGREE
        
        Grandfather + Father = 2 Degreas
        
        Collateral Line
        
        count the generations from the blood relation to the nearest common ancestor of that blood relation and the deceased, and then down to the deceased.
        
        Grandparent = 1 gen. Parents = 1 gen
        
        Therefore if you want to know the degree of relation you count the generations to find the degree eg 3 gen = 3rd degree
        
        STEP relations
        
        Step relations cannot inherit intestate from a deceased person
        
        they are not blood relations of the deceased.
    - - CHILD's share = (INTESTATE ESTATE value / no of children or decendents of children who have passed) + 1
      - ORDER = Spouse, descendants, spouse & descendants, parents, one parent & descendants, descendants of parents (cloven), half-blood descendants of a parent, blood relation S,D,SD,P,OD,DP,HB,BR.
      - RULE 1 = If a person dies intestate and is survived by a spouse but not by a descendant, such spouse shall inherit the entire intestate estate
      - RULE 2= If a person dies intestate and is survived by a descendant or by descendants but not by a spouse, such descendant(s) shall inherit the entire intestate estate.
      - RULE 3 =
        
        : If a person dies intestate and is survived by a spouse as well as a descendant or descendants, the spouse shall inherit either a child’s share of the intestate estate or R250 000-00 (whichever is the greater)
        
        and the descendant(s) shall inherit the residue (if any) of the intestate estate
        
        Married in community of property
        
        Spouse is entitled to half of estate before being divided between him/herself and the descendants.
        
        Married out of community of property
        
        If accrual system is applied, the accrual is either added or deducted from estate before the estate is divided.
        
        If the accrual system does not apply to the marriage
        
        the surviving spouse simply inherits either a child’s share or R250 00 (whichever is the greater), and the descendants of the deceased inherit the residue.
        
        A child's SHARE =
        
        According to section 1(4)(f) of the Intestate Succession Act, a child's share is calculated by dividing
        
        the value of the intestate estate by the number of children of the deceased who have either
        
        survived him, or have predeceased him but are survived by their descendants, plus one. The
        
        “plus one” in the definition was to make provision for the surviving spouse. I
      - RULE 4
        
        NO SPOUSE + NO DESCENDENTS
        
        his parents will inherit the intestate estate in equal shares.
      - RULE 5
        
        NO SPOUSE + NO DECENDENT + ONE Parent + DECEASED parents decendents
        
        the surviving parent inherits half the intestate estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent takes the entire intestate estate.
      - RULE 6
        
        NO SPOUSE + NO CHILDREN + NO PARENTS
        
        his estate is cloven into two equal shares – each share going to the side of one of his parents. From there, that half is divided between the descendants of that parent.
        
        had half-brothers or -sisters, they will inherit through the common parent’s side (with the half hand).
        
        full-blooded relations inherit through both parents (with the whole hand).
      - RULE 7
        
        If the deceased is survived only by descendants of one of his deceased parents who are related to him through such parent alone, such descendants inherit the intestate estate
        
        . Half-blood relations in the second parentela will therefore inherit to the exclusion of relations in the third parentela.
      - RULE 8
        
        If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, his nearest blood relation(s) inherit the intestate estate in equal shares.
- - - - Spouse's INTESTATE AMT = DECEASED estate - AMT declared in WILL for Spouse
      - Cases: In re MacGillivray’s Will
  - - - The EXECUTOR will do the following
        
        converts the intestate estate into money
        
        pays the deceased’s debts,
        
        places the proceeds in the Guardian’s Fund.
        
        after 30 years in which nobody has made a legitimate claim to the estate as an intestate heir of the deceased, the intestate estate accrues to the state.
        
        Particulars about the money in intestate estates which have been paid into the Guardian’s Fund are published from time to time in extraordinary issues of the Government Gazette so that interested persons may claim it as intestate heirs of the deceased persons concerned
- - - - Section 2(1) of the Wills Act provides that a will has to comply with certain formalities.
        
        CODICIL = an addendum or supplement to an existing will.
        
        WILL = must be in writing in order to qualify as such
    - - Ex parte DavieS
        
        testamentary writing is a document which defines any one of the
        three essential elements of a bequest
        
        property bequeathed
        
        extent of the interest bequeathed, that is, ownership, usufruct, fideicommissum, et cetera
        
        the beneficiary
  - - - acceptance of an inheritance
        
        in SA assumed that a beneficiary accepts the benefit.
        
        Customary for the Master to insist on written adiation where
        
        the testator has imposed an obligation on the beneficiary or
        
        where the testator has disposed of assets belonging to the beneficiary
    - - heir or legatee refuses to accept a benefit from a deceased’s estate (must repudiate expressly).
    - - refers to intention. A person must have the intention of executing a will.
        
        free and serious intention to dispose of his property by will
        
        you cannot be forced to draw up a will it must be your own choice
    - - someone who signs the will on behalf of the testator,
  - - - Can be done in 3 WAYS
        
        The testator himself may sign the will with his signature
        
        Witnesses
        
        Must sign and attest the will in the presence of one another and the testator
        
        Must be competent
        
        a. must be 14 years or older
        
        b. must be competent to give evidence in a court of law
        
        c. must be able to write
        
        Must be present at the same time
        
        May not sign by making a mark
        
        Are witnessing the testator’s signature, mark or initials, which the testator has signed or acknowledged in their presence, thus not necessary for a witness to know contents of will or the fact that they are witnessing a will (Sterban v Dixon).
        
        ONE PAGE WILL
        
        Testator
        
        Must sign at the END of the will
        
        Testator must sign the will or acknowledge that it is his signature
        
        a. in the presence of two or more competent witnesses
        
        b. who are present at the same time
        
        Need not sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature (Bosch v Nel).
        
        WITNESSES
        
        Must sign the will
        
        Do not have to sign at the end of the will
        
        2 PAGES or MORE - WILL
        
        Testator
        
        Must sign at the end of the wording on the last page
        
        Must sign or acknowledge his signature on every preceding page
        
        Must sign
        
        in the presence of two or more competent witnesses
        
        b. who are present at the same time.
        
        May sign the pages preceding the last page anywhere on the page
        
        Need not sign in the presence of the witnesses, as long as he acknowledges in their presence that the signature on the will is his signature (Bosch v Nel).
        
        WITNESSES
        
        Must sign the will
        
        Normally interpreted as having to sign the last page of the will
        
        Need not sign the preceding pages
        
        The testator may also sign the will by making a mark.
        
        Some other person may sign the will on behalf of the testator
    - - inserted to expressly state that the will was signed by the testator in the presence of the witnesses and that the witnesses signed in the presence of one another and the testator.
      - Not required by law and has evidential value only.
    - - Law of Succession Amendment Act states
        
        that “sign” includes the making of initials, and “signature” has a corresponding meaning.
      - Means that a testator or a witness may now sign a will with initials only
      - Only a testator may sign a will by making a mark. i.e. X or thumbprint
      - a MARK =a thumbprint or a cross.
      - Signature = making of initials, printing a name in block capitals, initial letter of the testator’s Christian name
    - - Section 2 of the Wills Act
        
        testator is required to sign “at the end of the will”.
        
        THE END = is at the end of the body of the will, in other words, directly below the last writing of the will (Philip v The Master; Tshabalala v Tshabalala)
      - Section 2(3) of the Wills Act
        
        new provision introduced by the Law of Succession Amendment Act
        
        empowers the court to accept a document as a valid will even if it does not comply with all the formalities required for the execution of wills
        
        Commissioner of oaths
        
        may make the certificate anywhere on the will.
        
        must then sign all the pages of the will on which the certificate does not appear
        
        Kidwell v The Master
        
        testator signed the second page of his two-page will some 13 cm below the signature of the second witness, and 17 cm below the attestation clause. It was held that the will was invalid because of the possibility of fraud.
- - - - Can be Revoked at any stage until the TESTATOR's DEATH
    - - the INTENTION to revoke the WILL
    - - Expressly
        
        Where the testator makes a later valid will in which he expressly revokes all previous wills
        
        Clauses revoking previous wills are called “revocatory clauses” (clausula revocatoria)
        
        a. Revocation takes effect from the moment when the revoking will is made, and not at the moment of the testator’s death (Wood v Estate Fawcus).
        
        ANC
        
        Where an unmarried testator expressly revokes his will by means of a subsequent antenuptial contract
        
        COMMON LAW
        
        testator destroys his will,
        
        in toto = WHOLLY
        
        pro tanto = PARTLY
        
        may constitute either a “deletion” or a “revocation”.
        
        destroys only part of his or her will with animus revocandi, the remaining part is still valid as a will
        
        if it forms a whole which is understandable without reference to the destroyed part
        
        shows INTENTION to destroy or revoke will
        
        animus revocandi
        
        (Fram v Fram’s
      - Tacitly
        
        testator leaves various wills
        
        later wills do not expressly revoke the former
        
        earlier will/provision is in conflict with a later will/provision
        
        effect must be given to the later will / provision.
        
        Thus the earlier/provision will as a whole has been tacitly revoked by the testator by means of the later will.
        
        all may be prima facie valid
        
        must all be read together & reconciled as far as possible in order to give effect to the testator’s actual intention.
      - Change in Status of the TESTATOR
        
        May also revoke certain provisions of a will
        
        In SA a change in the testator’s status =
        
        marriage / birth of children after making a will
        
        DOES NOT automatically REVOKE the person's will
        
        Law of Succession Amendment Act 43 of 1992 Section 2B
        
        Divorce has an effect
        
        if the testator dies within 3 MONTHS after DIVORCE or ANNULMENT
        
        Previous Spouse will NOT inherit
        
        1 more item...
        
        DIVORCE DOES NOT revoke the will or any other provisions
      - CANNOT revoke a will orally without any witnesses
    - - Legal presumptions that come into play when court has to consider whether a will has been revoked by testator
        
        If a will was destroyed by the testator
        
        rebuttable presumption that he has destroyed the will with the intention of revoking it.
        
        Where a will which was in the testator’s possession cannot be found after his or her death
        
        rebuttable presumption that the testator has destroyed the will with the intention of revoking it
        
        no such rebuttable presumption if the will was in the keeping of a third person
        
        will was drawn up in duplicate and the copy or duplicate which was in the testator’s keeping cannot be found after his or her death
        
        does not apply, however, if both copies were in the testator’s keeping and only one copy is found after his death
      - animus revocandi also falls away where it is proved that the testator has destroyed his or her will in a thoughtless moment, by mistake, or in a moment of rage, drunkenness or insanity
      - Administration of Estates Act 66 of 1965
        
        SAYS that the MASTER MUST IGNORE these presumptions only a COURT may consider them
  - - - The court must be SATISFIED that the testator intended to revoke by way of
        
        a written indication on the will made by the testator or caused by him to be made
        
        performed any other act in relation to the will which is apparent on the face of the will
        
        drafted another document or caused such document to be drafted from which such intention is evident
      - QUESTIONS THE COURTS will use assess revocation
        
        whether the testator intended to revoke the will.
        
        Courts can declare will revoked even if the act of revocation does not comply with the necessary formalities.
        
        the act of revocation should be evident from a document or from the face of the will.
- - - - under 16 = cannot make a will and always die intestate
    - - "Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging the same."
      - Mental Requirements to make a will
        
        testator must have been sane (compos mentis) at the time of making the will
        
        a. testator to have had the necessary testamentary capacity at the time the will was executed, his or her mental condition at the time of giving instructions for the drafting of the will is irrelevant
        
        b. Lucidum intervallum wills are valid
        
        c. Will of a prodigal is valid
        
        d. A drunk person so intoxicated that he is not in possession of all his or her faculties when making the will, is incapable of making a will
        
        e. A deaf and dumb person, if he mentally capable of appreciating the nature and effect of his or her testamentary act, is capable of making a will
        
        The testator must have the free and serious intention to dispose of his property by will. He must have the animus testandi and he must exercise it completely voluntarily. (Spies v Smith)
  - - - Common law and Wills Act 7 of 1953, however, exclude certain persons
        
        7.2.2 Adopted and illegitimate (extramarital) children
        
        Adopted child
        
        regarded as being born from his adoptive parents
        
        illegitimate (extramarital) children
        
        person was born out of wedlock shall be ignored in determining his relationship to the testator or another person for the purposes of a will
        
        7.2.3 The unborn
        
        testator to nominate uncertain but definable persons as beneficiaries under his will
        
        must either exist or at least have been conceived at the moment when the bequeathed benefit vests in him or her.
        
        Nasciturus: (unborn beneficiary)
        
        if beneficiary has been conceived at the moment when the bequeathed benefit vests, then the unborn beneficiary cannot inherit yet.
        
        vesting of the inheritance is held over or suspended until it is certain that a viable person has been born alive
        
        If a viable person is born alive:
        
        he inherits the bequeathed benefit
        
        If no viable person is born alive
        
        a. the inheritance or benefit which was reserved for the nasciturus accrues to other heirs’ portions
        
        Law of Succession Amendment Act 43 Section 2D(1)(c).
        
        any benefit allocated to the children of a person, or to the members of a class of persons, shall vest in such children or those members of the class of persons who are
        
        a. alive at the time of the devolution of the benefit, or
        
        b. who have already been conceived at that time and who are later born alive
        
        7.2.5.2 Persons who may not inherit testate
        
        The writer of a will
        
        Section 4A(1) of the Wills Act disqualifies the following from receiving any benefit under the will:
        
        a witness to a will, or
        
        person who signs the will by direction of the testator, or
        
        who writes out the will or any part of it in his own handwriting, or
        
        who writes out the will or any part of it in his own handwriting, or
        
        terms of section 4A(2), the court may declare such person or his spouse competent to receive a benefit