Intestate succession in South African law takes place whenever the deceased leaves property which has not been disposed of by valid testamentary instrument. In other words, the law of intestate succession applies only:
Intestacy may be total (applying to the whole of the assets left by the deceased) or partial (applying to a portion only of his assets), for the deceased may die partly testate and partly intestate: for example, if the deceased bequeaths his car to his son but does not mention the rest of his estate.
Intestacy is total when none of the assets are disposed of by a valid will: for example, where there is no will at all, or only a will which is void, or which has been revoked. Intestacy is partial when the deceased has left a valid will which, however, does not dispose of all his assets; in this event there is an intestacy as to the undisposed residue. This may happen in many circumstances: for example,
Furthermore, intestacy can occur if certain conditions in an otherwise valid will are not fulfilled, or if benefits have been repudiated and no provision has been made for substitution, and accrual cannot take place.
History and sources.
The law of intestacy was virtually codified by the Intestate Succession Act, 1987, which came into force on 18 March 1988. Before that, the South African system of intestate succession had to be construed from a variety of common-law and statutory rules. The law of intestate succession is rooted in the legislation of the States of Holland: the Political Ordinance of 1 April 1580, as clarified and amended by the Interpretation Ordinance of 13 May 1594 and Section 3 of the Placaat of 18 December 1599.
In 1621 the "Heeren XVII" of the Dutch East India Company instructed the government of the Dutch East Indies to enforce these enactments, and the States-General decreed them to be in force in Cape Colony by the Octrooi of 10 January 1661, which was confirmed by Governor Pasques de Chavonnes on 19 June 1714.
The main common-law principles of intestacy were derived from a combination of two systems, somewhat in conflict, which prevailed prior to 1580 in the Netherlands: the "aasdomsrecht", the law of North Holland and Friesland, which meant "the next in blood inherits the properties", and the "schependomsrecht", the law of South Holland and Zeeland, which meant "the properties return to the line whence they came". Under both systems, the property of an intestate person went to the deceased's blood relations only: in the first place, to his descendants; failing them, to his ascendants and collaterals. There were several important differences in the manner of devolution.
The 1580 Ordinance adopted the "schependomsrecht" distribution "per stirpes", restricting it in the case of collaterals to the fourth degree inclusive. Finally, the 1599 Placaat compromised between the two systems with respect to distribution, and gave one half of the estate to the surviving parent, and the other half to the descendants of the deceased parent.
The above laws conferred a right of succession on intestacy on the deceased's blood relations, but none on a surviving spouse or an adopted child, and furthermore restricted the intestate succession rights of the extra-marital child. Because marriage in community of property was the norm, such a spouse "ipso facto" took half of the joint estate.
Initially, the word "spouse" in the Intestate Succession Act, 1987 was restrictively interpreted to mean only those spouses who had contracted a marriage in terms of the Marriage Act, 1961. This interpretation has since been extended by case law, in recognition of the modern perception that there is a need to protect the interests of surviving spouses. The common law, as derived from the two different systems that applied in Holland, has been adapted on numerous occasions by legislation. The most important such legislation was probably the Succession Act, 1934, in terms of which the surviving spouse, whether married in or out of community, was granted a right to a share in the intestate estate of the deceased spouse.
The Intestate Succession Act, 1987 instituted a much simpler system of intestate succession, revoking common-law rules and all statutory adaptations in their entirety. The Intestate Succession Act, 1987, together with the Children's Act, 2005, extended the categories of persons who may be heirs who take in intestacy. For example, all natural persons, irrespective of whether they are adopted or extra-marital, or conceived by artificial insemination, or born as a result of a surrogacy arrangement, nowadays have the capacity to inherit.
The Intestate Succession Act, 1987 applies, except as explained below, in all cases where a person dies wholly or partially intestate after 18 March 1988. Under the Act, the surviving spouse and the adopted child are heirs of the deceased. The historical discrimination visited on extra-marital children has disappeared. The position of adopted children is now dealt with in the Child Care Act, 1983.
Until recently, the application of the Intestate Succession Act, 1987 was regulated on a racial basis. Certain intestate estates of African people were distributed according to the "official customary law," as entrenched in the Black Administration Act, 1927 and its regulations, while the Intestate Succession Act, 1987 applied to the rest of the population. The Black Administration Act, 1927, and the Regulations passed thereunder, provided that the estates of black people who died without leaving a valid will sometimes devolved according to "Black law and custom." This meant, inter alia, that the reforms introduced by the Intestate Succession Act, 1987 did not apply to spouses married in terms of African customary law. As far as children were concerned, the parallel system of African customary law of succession perpetuated discrimination against adopted, extra marital and even female children.
This racial disparity in the treatment of spouses and children disappeared when the Constitutional Court, in "Bhe v Magistrate, Khayelitsha", extended the provisions of the Intestate Succession Act, 1987 retrospectively, as from April 27, 1994, to all intestate heirs, irrespective of race.
While the Intestate Succession Act, 1987 is important, one cannot discount case law when determining the rules of intestate succession. If and when the RCLSA is promulgated into law, it, too, will be relevant for determining South Africa's intestate-succession laws.
Computation of kinship.
Distribution scheme.
South Africa uses the Roman-Dutch parentelic system to reckon kinship and determine distribution in intestacy. The term parentela refers to a particular parental group and its descendants:
And so the "parentelae" go on. Essentially, the lowest "parentela" wins and takes the entire estate, and parentelic heads trump others within the same "parentela".
A stirp may be translated literally as a branch. In the present context, therefore, it includes the surviving child of a deceased, as well as a predeceased child survived by descendants.
When determining how many "stirpes" there are, one should pay attention to the immediate descendants of the deceased and then see if they are alive or if their descendants are alive.
Representation arises when an heir cannot, or does not wish to, inherit from the deceased. In this case, the descendants of the heir may represent the heir to inherit.
Effect of marital regimes.
If the deceased is married at the time of his death, the property system that applies to his marriage is of utmost importance since it affects the distribution of the deceased's estate. In terms of the Recognition of Customary Marriages Act, 1998 and the Matrimonial Property Act, 1984, the first marriage of a male with more than one wife is always considered to be in community of property. If a second marriage is entered into, the parties must enter into an antenuptial contract, which will regulate the distribution of the estate.
Essentially, there are four forms of marital regimes recognised by the courts:
With regard to marriages in community of property or in community of profit and loss, the surviving spouse automatically succeeds to half of the joint estate ("communio bonorum"); the remaining half devolves according to the rules of intestate succession.
With regard to marriages in separation of property, the entire estate devolves according to the rules of intestate succession.
With regard to the accrual system, where one spouse's estate shows no or lesser accrual than that of the other spouse, the lesser-accruing spouse has a claim for an amount equal to half of the difference between the two net accrued estates. The equalization payment must be dealt with first as a claim against or in favour of the estate. The balance thereafter must devolve according to rules of intestate succession.
If a husband has an estate of R100,000 at the start of his marriage, and R200,000 at the end of the marriage, R100,000 will have accrued. If his wife, at the start of her marriage, has an estate worth R50,000, and at the end of the marriage worth R100,000, the amount accrued will be R50,000. If the husband dies, the difference in the accrual of both estates is R50,000; therefore the wife has a claim for half of the accrued amount: R25,000. Thereafter the remainder of the estate will devolve in terms of the rules of intestate succession.
Vesting of intestate-succession rights.
The question of who in fact the heirs are is normally determined as at the date of the death of the deceased. Where, however, the deceased leaves a valid will which takes effect on his death, but subsequently fails, either wholly or in part, the intestate heirs are determined as at the date on which it first became certain that the will had failed.
Order of succession on intestacy.
Section 1(1)(a) to (f) of the Intestate Succession Act, 1987 contains the provisions in terms of which a person's estate is to be divided. In terms of this section, there are ten categories which indicate who will inherit. Section 1(2) to (7) contains certain related provisions.
Spouse only, no descendants.
Where the deceased is survived by a spouse, but not by a descendant, the spouse inherits the intestate estate. "Spouse" includes
No spouse and only descendants.
Where the deceased is survived by a descendant, but not by a spouse, the descendant inherits the intestate estate. The estate is divided into as many equal portions as there are surviving children and deceased children who leave descendants. Each surviving child takes one share, termed a "child’s share," and the share of each deceased child is divided equally among his surviving children and each group of descendants of a deceased child. This process is known as representation per stirpes; it continues ad infinitum.
An adopted child is deemed, for all purposes, to be the legitimate child of its adoptive parent. An order of adoption terminates all rights and obligations existing between the child and its natural parents (and their relatives). It follows that an adopted child inherits upon the intestacy of its adoptive parents and their relatives, but not upon the intestacy of its natural parents and their relatives.
Under Roman-Dutch law, an illegitimate or extra-marital child inherited upon the intestacy of its mother, but not of its father. This limitation on the capacity of the extra-marital child to inherit on intestacy has been swept away by the Intestate Succession Act, which provides that, in general, illegitimacy shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation. Illegitimacy arising from incest, too, no longer presents a problem. Furthermore, as noted earlier, the tenuous position of extra-marital children under African customary law of succession, too, has been removed by making the Intestate Succession Act, 1987 applicable to all children.
Spouse and descendants.
Where the deceased is survived by one spouse, as well as by a descendant, the surviving spouse inherits whichever is the greater of
The descendant or descendants inherit the residue (if any) of the intestate estate.
To calculate a child's share, the estate is divided into as many children's shares as stated above, plus an additional share, which the surviving spouse takes.
Where the deceased is survived by more than one spouse, a child's share in relation to the intestate estate of the deceased is calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased who have either survived or predeceased the deceased, but who are survived by their descendants, plus the number of spouses who have survived the deceased. Each surviving spouse inherits whichever is the greater of
The descendant or descendants inherit the residue (if any) of the intestate estate. Where the assets of the deceased are not sufficient to