Testate succession exists under the law of succession in South Africa.
Testamentary succession takes place by virtue of either a will or a codicil:
The date of execution of a will is the date on which the will is signed. Before 1954, when the Wills Act, 1953 came into force, all provinces had their own legislation regulating the law of testate succession; now the Wills Act, 1953 has uniformed the law in this regard.
When dealing with a will which may have been executed under suspicious circumstances, it is important to investigate whether the testator wanted to execute a will and whether he did so freely.
Once these requirements have been fulfilled, and once it has been established that the formalities have been complied with, the executor is appointed. He has to deal with the general winding-up of the estate.
Adiation and repudiation form the basis of succession, as it is important to know whether a beneficiary adiates or repudiates a benefit before the executor can begin with the final liquidation and distribution of an estate.
Freedom of testation.
Freedom of testation is the power a testator has to deal with his property as he desires. A cardinal principle of South African law is that all persons have complete freedom of testation; no person is obliged to bequeath his estate to anyone. A clause in a will, or an agreement which seeks to limit a testator's freedom to dispose of his property on death, is unenforceable.
Freedom of testation is not absolute, however. It is subject to limitations imposed by statute and the common law. While a testator is generally permitted to disinherit his spouse and his children, and is free to impose conditions on beneficiaries regarding how they should enjoy an inheritance, or when a benefit is to vest, there are instances when, as a matter of public policy, the law restrains testators in their exercise of this freedom. The Constitution also has a role to play here.
A testator living under customary law also has freedom of testation regarding customary law property.
Limitations.
While testators in South Africa enjoy a wide freedom of testation, this freedom is subject to certain limitations. These limitations can be divided into statutory and common law limitations and include conditions that interfere with a beneficiary's marital relationship and conditions limiting a beneficiary's freedom of movement. The common law limitations are also entrenched in the Constitution. Certain indirect limitations, such as those imposed by the maintenance of children and the Maintenance of Surviving Spouses Act, 1990, may also be found.
Illegal dispositions and those against public policy.
No effect is given to illegal dispositions. If, for example, the testator leaves money to set up a brothel, no effect will be given to this disposition, since its purpose is an illegal one.
Effect is also not given to those dispositions which are against public policy.
Subdivision of agricultural land.
It was custom that, when Dutch people died, they gave their agricultural land to their sons in equal shares. This led, however, to the fragmentation of farms, which eventually became so small that they were no longer viable. In terms of section 3 of the Subdivision of Agricultural Land Act, 1970, therefore, the testator's capacity to subdivide his land has been limited.
To get around this legislation, a testator may leave the land to a trust or close corporation, and appoint the beneficiaries as beneficiaries of the trust or close corporation in equal shares.
Subdivision of mineral rights.
The subdivision of mineral rights is based on the same principle as the subdivision of agricultural land. Therefore, in terms of section 20 of the Mineral Rights Act, a testator cannot bequest mineral rights in undivided shares to more than one person.
"Fideicommissum multiplex".
A "fideicommissum" occurs
With regard to movable property, there may be an infinite number of fideicommissaries; this is known as a "fideicommissum multiplex". Family heirlooms, for example, are sometimes passed on to the eldest daughter of the testator; when she dies, they are passed on to her oldest daughter; and so on, in perpetuity.
Where, however, there is immovable property that is the subject of a "fideicommissum", only two successive fideicommissaries are permitted. If, for example, certain land is left to the eldest son of the testator and, when he dies, on to his eldest son, and upon his death to "his" eldest son, this is the furthest the property can go in terms of the "fideicommissum multiplex". The second fideicommissary may bequeath the land to whomever he wishes.
Maintenance of surviving spouse.
There is no general duty on the testator to leave anything to his surviving spouse. The Maintenance of Surviving Spouses Act, 1990 was passed to provide a remedy for surviving spouses. In terms of section 2 of this Act, the surviving spouse has a claim against the deceased estate for reasonable maintenance until her death or remarriage, provided that she is unable to support herself.
Section 3 of the Act states the factors to be considered in determining the amount of maintenance awarded, in addition to any other factor:
Maintenance and education of minor children.
In terms of the common law, every minor child of a deceased parent has a claim for maintenance and education against the deceased estate. This duty does not cease when the child attains majority; it runs until the child is self-supporting. It is also irrelevant that the child is legitimate or illegitimate.
If there are insufficient funds in the deceased estate to cover the total maintenance and education of minor children, the children will receive a "pro rata" amount.
The child's right to claim for maintenance and education has preference over all heirs and legatees, and therefore must be determined first.
The duty to support is passed on from the parent to his estate when he dies, and so it cannot be bequeathed.
With regard to the maintenance of parents, there is no law providing for this yet. If, however, the parent of a deceased child can show the need for it, it is possible that such a claim may be successful.
Pension funds.
In terms of the Pension Funds Act, 1956, pension funds do not accrue to the deceased estate. It is the board of trustees of the particular pension fund which decides to whom to allocate the money. (This is usually the spouse or the children depending on the circumstances.) The testator therefore cannot bequeath his pension funds to an heir or legatee.
Delegation.
The testator may also delegate his freedom of testation to a certain extent by conferring the power of appointment upon other persons.
Customary law.
A person living under a system of customary law is free to make a will regarding customary property. The principles regarding power of appointment should, however, be kept in mind in such instances.
Testamentary capacity.
In order to make a will, the testator must have testamentary capacity. If he does not have such capacity at the time the will is executed—that is to say, at the time it is signed—the will is void "ab initio", and thus is deemed to never have been valid.
The Wills Act, 1953 deals with the formal capacity to make a will. Section 4 of the Wills Act, 1953 states that a person has formal capacity to make a will if he is
Testamentary capacity, then, refers to the minimum age and the mental capacity required to make a valid will. The burden of proof in this regard rests on the party alleging formal incapacity. Evidence concerning a testator's mental capabilities is taken into account when determining the validity of a will.
The Master of the High Court will accept without evidence that the will that he receives from the executor was executed with the necessary testamentary capacity. The issue of a testator's testamentary capacity will only arise if someone approaches a court with an application regarding the capacity of the testator to make a will. The Master determines only whether the formal requirements of the will have been met; he does not concern himself with the other formalities regarding capacity.
It is important to distinguish testamentary capacity from the testator's free expression of his will (volition) as well as from freedom of testation.
If the alleged testator is under sixteen years, he is absolutely prohibited from making a will, even with the assistance of a parent or guardian. Such a will is void "ab initio" and thus cannot be ratified at a later date. If the testator is at least sixteen years, this is one of the few legal undertakings a minor can assume.
Minors who are entitled to make wills may do so without the authority or assistance of their parents or guardians. The common law restriction placed on deaf-mutes and interdicted prodigals from making wills is not part of modern South African law.
Under a system of customary law, people have freedom of testation just like anyone else and also need to comply with the requirements of testamentary capacity.
Mental ability of the testator.
As stated in section 4 of the Wills Act, 1953, the testator must have the requisite mental ability. There is a rebuttable presumption that the testator is competent. Incompetence would result from the will's being executed by a person who suffers from a mental illness or is under the influence of alcohol or drugs (both legal and illegal) at the time of execution, if that person is incapable of understanding the nature and effect of what he is doing. This obviously depends on the circumstances of each case.
Undue influence on the testator.
If there is undue influence exerted on the testator (physical, mental or otherwise), the testator will lack the requisite capacity. The will will be declared invalid.
Capacity to witness a will.
Every person of the age of 14 years or more who is not incompetent to give evidence in a court of law is competent to witness a will.
Formalities for execution of a will.
A will is a unilateral expression of the wishes of a testator in a legally prescribed manner which determines what must happen to his property after his death. The Wills Act, 1953 defines a will to "include a codicil and any other testamentary writing." The only way in which a testator can make a valid will is by strictly complying with the detailed requirements of section 2(1) of the Wills Act, 1953.
The will must be in writing, so a video will shall not suffice, as it provides no signature, and the potential for fraud is too great. An electronic will—that is, a will stored on a computer hard drive or other data-storage device—may be condoned, although invalid, in terms of section 2(3) of the Wills Act, 1953.
Furthermore, it is not necessary for the date or place of execution to be recorded, but for practical reasons it is recommended: for example, if a series of wills are executed revoking previous ones.
Similar execution requirements apply when the testator amends an existing will by making changes on the will itself. A codicil that amends an existing will must also be made in accordance with the requirements of section 2(1) of the Wills Act, 1953.
Requirements for a testamentary disposition.
The four requirements for a testamentary disposition are
Methods of executing a valid will.
Accordingly, there are five methods by which the testator may execute a valid will:
Signing and signature.
In terms of section 2(1)(a)(i), a will is not valid unless it is signed by the testator or someone else (a proxy) on the testator's behalf. Where a will is signed by a proxy, the latter must do so in the testator's presence and by the testator's direction. For all persons involved in the execution process, a "signature" includes the making of an initial; in the case of the testator, it also includes the making of a mark, such as a cross or a thumbprint, but in that event the will must be certified as set out below.
The will must be signed by the testator or the proxy, or be acknowledged by the testator, and (if applicable) the proxy, in the presence of two or more competent witnesses present at the same time.
The witnesses must attest and sign the will in the presence of the testator and of each other, and, if the will is signed by a proxy, in the presence also of the latter. A witness, unlike a testator, may not sign by making a mark.
If there is more than one page to the will (other than the page on which it ends), the testator or proxy must sign or make a mark on each and