Notes on Intestate Succession

intestate succession1. Aim of the Act

The Intestate Succession Act, 81 of 1987, came into operation on 18 March 1988. The aim of this Act is to regulate anew the law relating to intestate succession of persons who died from 18 March 1988.

Intestate succession can be defined as: “When a person dies and no valid will can be found, or if his/her will or a part of it is invalid for one reason or another, his/her estate or that part of it that cannot be distributed according to the provisions of a will is distributed according to the principles of intestate succession. A person’s estate or a part of it can therefore devolve by virtue of intestate inheritance. When an estate or a part of an estate has devolved by virtue of intestate inheritance, the provisions of the Act automatically becomes applicable. The Act regulates the shares in which certain persons will inherit from the intestate testator.”

In terms of common law, a person’s blood relatives are his/her natural heirs. This Act represents a radical departure from common law, however, in that spouses and adopted children are also elevated from the status of intestate heirs. Intestate heirs are determined at the date of death of the testator.

2. Basic Principles

As a summary, one could aver that: “If the testator is survived only by a spouse, the spouse inherits the intestate estate. If the testator is survived only by descendants, they inherit the intestate estate. If there is a combination of a spouse and descendants (children and grandchildren), they inherit the estate jointly in specific shares. If there is no spouse or descendants, the testator’s parents and/or their descendants (collateral relatives of the testator) inherit the estate. If there are no parents or descendants of parents, grandparents and other collateral relatives inherit the estate per capita.”

2.1 The spouse as the sole heir

If a deceased person is survived by a spouse, but not by any descendants, the spouse or spouses inherit the entire intestate estate (section 1(1)(a)).

(a) If the deceased and his or her life spouse were married in community of property, the spouse receives one half of the estate by virtue of the marriage in community of property and the other half of virtue of section 1(1)(a) of the Act.

(b) If the deceased and his or her life spouse were married out of community of property, the spouse inherits the entire estate by virtue of section 1(1)(a) of the Act.

In a polygamous customary marriage, where the deceased is survived by more than one wife but not survived by any descendant, the estate is divided equally between the wives.

2.2 Descendant(s) as sole heir(s)

If a deceased person leaves descendants, but no spouse, the descendant(s) inherit the entire intestate estate (section 1(1)(b)). Descendants are therefore the sole heirs. They inherit per stirpes through representation.

Division of an intestate estate among descendants takes place per stirpes and representation is permitted (section 4(a)). A stirpes is a child of the deceased, or a predeceased child who left living descendants. A deceased person therefore has as many stirpes as he/she left living children or predeceased children with living descendants.

2.3 Spouse and descendant(s) as heirs

If a deceased person is survived by both a spouse and descendants, the spouse inherits the greater of R125 000,00 or a child’s share of the intestate estate (section 1(1)(c)(i)), and the descendants inherit the residue (if any) of the intestate estate (section 1(1)(c)(ii)).

Section 2(1) of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, provides that the estate or part of the estate of any person who is subject to customary law and who died after 20 September 2010, and who did not leave a will, must devolve in accordance with the Intestate Succession Act, subject to the provisions set out in section 2(2).

According to section 2(2) of Act 11 of 2009, where the deceased is survived by a spouse as well as a descendant, such spouse inherits the greater of R250 000,00 or a child’s share of the intestate estate – (section 2(2)(a) of Act 11 of 2009);

In section 2(2)(b) and (c), reference is made to two types of “women”, namely –

  • a woman, (other than the spouse of the deceased) with whom the deceased entered into a union in accordance with customary law for the purpose of providing children for his spouse’s house; and
  • a woman who was under customary law married to the deceased (who also was a woman), for the purpose of providing children for the deceased’s house.

These two types of women, are deemed to be descendants of the deceased person upon the application of the Intestate Succession Act.

Although these women are descendants, they are deemed to be “spouses” in the interpretation of section 1 of the Intestate Succession Act (section 3(1) of Act 11 of 2009).

Where the deceased is survived by spouses (and women) as well as descendants, each surviving spouse (and woman) is entitled to a child’s share or R250 000,00, whichever is the greater.

Where the intestate estate is not sufficient to provide each surviving spouse and woman referred to in section 2(2)(a), (b) and (c) of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2008, with R250 000, the estate shall be divided equally between such spouses and women (section 1(1)(c) of the Intestate Succession Act read together with section 3(2) of Act 11 of 2009).

A child’s share is calculated by dividing the monetary value of the estate by a number equivalent to the number of living children of the deceased or predeceased children who left living descendants, plus –

  •  one (the spouse); or
  •  the number of spouse(s) and women referred to in section 2(2)(a), (b) and (c) of Act 11 of 2009,  whichever is applicable (section 4(f)), read together with section 3(3) of Act 11 of 2009).

2.4 Parents as heirs

If a deceased person is not survived by a spouse or descendants, but is survived by both his parents, his/her parents inherit the intestate estate in equal shares (section 1(1)(d)(i)).

2.5 Parents and descendant(s) of parents as heirs

If a deceased person is not survived by a spouse or descendants –

  • but is survived by one of his parent, the surviving parent inherits half of the intestate estate and the descendants of the deceased parent the other half (section 1(1)(d)(ii)); or
  • if there are no such descendants, the surviving parent inherits the entire intestate estate (section 1(1)(d)(ii)).

2.6 Descendant(s) of deceased’s parents as heirs

If a deceased person is not survived by a spouse or descendant(s) or parents, but is survived by ‑

  • descendants of his deceased mother who are related to the deceased through her only, as well as by descendants of his deceased father who are related to the deceased through him only; or
  • descendants of his deceased parents who are related to the deceased through both such parents; or
  • any of the descendants mentioned in (a) and (b) above,

the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased mother will inherit one half of the estate and the descendants related to the deceased through the deceased father will inherit the other half of the estate (section 1(1)(e)(i)).

In other words: If both the testator’s parents are deceased and the testator does not leave a spouse or children, the descendants of the predeceased parents (collateral relatives of the testator, that is his or her brothers and sisters) inherit the intestate estate in a particular proportion.

2.7 Descendants of only one parent of the deceased

Where only one of the predeceased parents of the deceased person leaves descendants (collateral relatives of the deceased), those descendants inherit the entire deceased estate (section 1(1)(e)(ii)).

2.8 Other competent heirs

If a deceased person is not survived by a spouse, descendant(s), parents or descendants of parents, the other blood relatives of the deceased who are related to him nearest in degree inherit the entire intestate estate in equal shares (section 1(1)(f)).

2.9 Adopted children

An adopted child is deemed to be the legal child of his/her adoptive parent. An adopted child can inherit from his adoptive parents and their blood relatives (section 1(4)(e)(i)). Similarly, an adoptive parent and his or her blood relatives can inherit from an adopted child (section 1(5)).

An adopted child cannot, however, inherit from his or her natural parents and their blood relatives (section 1(4)(e)(ii)), and they cannot inherit from him or her (section 1(5)). An adopted child may however inherit from his natural parent who is also his adoptive parent or who was at the time of the adoption married to the adoptive parent of the child (section 1(4)(e)(ii)).

2.10 Born out of wedlock

Having been born out of wedlock shall not affect the capacity of one’s blood relation to inherit the intestate estate of another blood relation (section 1(2)).

2.11 Child accepted in accordance with customary law as own child

A person who is not a descendant in terms of the Intestate Succession Act, but, who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child, shall be deemed ‑

  •  to be the descendant of the deceased person who has accepted such child as his or her own;
  •  not to be a descendant of his or her natural parent or parents, except in the case of a natural parent who is also the parent

who accepted that person in accordance with customary law as his or her own child, or was, at the time when the child was accepted, married to the parent who so accepted the child (section 1(4)(eA) of the Intestate Succession Act).

If a person who is not a descendant in terms of the Intestate Succession Act, but, who, during the lifetime of the deceased person, was accepted by the deceased person in accordance with customary law as his or her own child –

  • is deemed to be a descendant of the deceased person, or
  • is deemed not to be a descendant of his or her natural parent,

the deceased person shall be deemed to be an ancestor of such child, or shall be deemed not to be an ancestor of that child, as the case may be – (section 1(5A) of the Intestate Succession Act).

2.12 Renunciation if surviving spouse is also entitled to inherit

If a descendant of a deceased, 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, such benefit shall vest in the surviving spouse –(section 1(6)).

2.13 Disqualification or renunciation if no surviving spouse

If a person is –
a) disqualified from being an heir of the intestate estate of the deceased; or
b) renounces his right to be an heir of the intestate estate of the deceased

any benefit which he would have received
a) if he had not been so disqualified; or
b) if he had not so renounced his right

shall devolve
a) as if he was not so disqualified; or
b) as if he had died immediately before the death of the deceased – (section 1(7)).

Note: However, that this devolution is subject to the provisions of section 1(6) as set out in paragraph 2.12 above.

58/2011 Section 14: Substitution of sectional plans

Deeds registries and the offices of the surveyors-general are being inundated with requests to substitute sectional plans which are alleged to be incorrect in respect of the numbering in that the de facto position and the de jure position do not correspond. Should these plans be capable of being substituted, if they are not patently incorrect?

Resolution:

Rectification transfers must be registered to amend the situation, or a court order must be obtained to authorise the substitution of plans in terms of section 14 of Act No. 95 of 1986.