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A will and testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
A third-party beneficiary, in the law of contracts, is a person who may have the right to sue on a contract, despite not having originally been an active party to the contract. This right, known as a ius quaesitum tertio, arises when the third party is the intended beneficiary of the contract, as opposed to a mere incidental beneficiary. It vests when the third party relies on or assents to the relationship, and gives the third party the right to sue either the promisor or the promisee of the contract, depending on the circumstances under which the relationship was created.
The Law French phrase en ventre sa mere refers to a fetus in utero and is commonly used in Legal English.
The law of persons in South Africa regulates the birth, private-law status and the death of a natural person. It determines the requirements and qualifications for legal subjectivity in South Africa, and the rights and responsibilities that attach to it.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
Daniels v Campbell NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court on 6 November 2003 and decided on 11 March 2004. The court was unanimous that the constitutional right to equality requires that rights of intestate inheritance and maintenance must be extended to the surviving partners of de facto monogamous Muslim marriages, even though such marriages are not recognised under the Marriage Act, 1961.
Hassam v Jacobs NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court of South Africa on 19 February 2009 and decided on 15 July 2009. It concerned the proprietary consequences of polygynous Muslim marriage in the context of intestate succession.
Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and Others; SA Human Rights Commission and Another v President of the RSA and Another was an important case in South African customary law.
Mthembu v Letsela and Another, an important case in South African customary law, was heard in the Transvaal Provincial Division by Le Roux J on 21 November 1996, with judgment handed down on 25 November.
South African criminal law is the body of national law relating to crime in South Africa. In the definition of Van der Walt et al., a crime is "conduct which common or statute law prohibits and expressly or impliedly subjects to punishment remissible by the state alone and which the offender cannot avoid by his own act once he has been convicted." Crime involves the infliction of harm against society. The function or object of criminal law is to provide a social mechanism with which to coerce members of society to abstain from conduct that is harmful to the interests of society.
In L. Taylor v AE Pim, an important case in the South African law of succession.
The facts of the case in Casey v The Master, an important case in the South African law of succession, the deceased and her husband were married in community of property and had a joint will, whereby both spouses bequeathed their half of the joint estate to each other. Being safety-conscious, each night the deceased's husband slept with a loaded revolver under his pillow. One night the revolver accidentally went off while the couple was sleeping; the bullet struck the deceased, who subsequently died. The deceased's husband was convicted of culpable homicide.
In Makhanya v Minister of Finance (2001), an important case in the South African law of succession, the deceased (R) was a civil servant who was murdered by his wife. In terms of the Governmental Services Act, his wife was entitled to receive his pension benefits. R's daughter, however, approached the court to declare the deceased's wife unworthy of inheriting. The court considered the question of whether the bloedige hand principle could be extended to statutory principles. The court held that public policy dictates that the principle should not be limited and accordingly extended its application to the statute.
In Ex parte Stephens' Estate, an important case in the South African law of succession, the deceased disposed of his estate in terms of fractions, but only provided for nine tenths of the estate. One tenth, therefore, was not provided for. It was argued that it should be divided among the named beneficiaries in the will.
Volks NO v Robinson and Others is an important decision in South African family law and law of succession. In a majority judgment written by Justice Thembile Skweyiya, the Constitutional Court of South Africa dismissed a challenge to the constitutionality of the Maintenance of Surviving Spouses Act, 1990. The court held that it is not discriminatory for the Act to exclude the survivors of permanent life partnerships from the protections it extends to the survivors of legal marriages. Married couples are entitled to claim maintenance from their deceased spouse's estate because the institution of marriage creates unique reciprocal duties of support which do not exist between permanent life partners.
In Carelse v Estate De Vries, an important case in South African succession law, Carelse was seduced, on the promise of marriage, by the deceased. Carelse and the deceased continued their relationship, which produced seven children, before the deceased died intestate.
In Kirsten v Bailey, an important case in the South African law of succession, a testatrix made three wills. In the first and third, Bailey was nominated as the sole beneficiary of her estate; in the second will, Kirsten was nominated as the sole beneficiary. Kirsten challenged the validity of the third will.
In Marais v The Master, an important case in the South African law of succession, the testator, who had divorced from his wife in 1972, bequeathed his entire estate to her in 1977. Before his death, he wrote words on his copy of the will and on a letter from his attorney, attempting to revoke the will and direct that his mother was to be his sole heir. The court held that there had been a clear intention to revoke the will and to nominate his mother as sole beneficiary.
Testate succession exists under the law of succession in South Africa.
Bwanya v Master of the High Court, Cape Town and Others is an important decision in the South African law of succession and particularly the law of intestate succession. It was decided by the Constitutional Court of South Africa on 31 December 2021 with a majority judgment written by Justice Mbuyiseli Madlanga. A majority of the court upheld a challenge to the constitutionality of the Intestate Succession Act, 1981 and Maintenance of Surviving Spouses Act, 1990, holding that it was unfairly discriminatory to exclude the survivors of permanent life partnerships from the protections the acts extend to the survivors of legal marriages. Bwanya therefore overturned the holding in Volks v Robinson.
References
- Danielz v De Wet [2008] 4 All SA 549 (C).
