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Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Officially bequeathing private property and/or debts can be performed by a testator via will, as attested by a notary or by other lawful means.
A will or 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.
Intestacy is the condition of the estate of a person who dies without having in force a valid will or other binding declaration. Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate; the remaining estate forms the "intestate estate". Intestacy law, also referred to as the law of descent and distribution, refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance.
The slayer rule, in the U. S. law of inheritance, stops a person inheriting property from a person they murdered.
The Hindu Succession Act, 1956 is an Act of the Parliament of India enacted to amend and codify the law relating to intestate or unwilled succession, among Hindus, Buddhists, Jains, and Sikhs. The Act lays down a uniform and comprehensive system of inheritance and succession into one Act. The Hindu woman's limited estate is abolished by the Act. Any property possessed by a Hindu female is to be held by her absolute property and she is given full power to deal with it and dispose it of by will as she likes. Parts of this Act was amended in December 2004 by the Hindu Succession (Amendment) Act, 2005.
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.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
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.
An ouster clause or privative clause is, in countries with common law legal systems, a clause or provision included in a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive by stripping the courts of their supervisory judicial function. According to the doctrine of the separation of powers, one of the important functions of the judiciary is to keep the executive in check by ensuring that its acts comply with the law, including, where applicable, the constitution. Ouster clauses prevent courts from carrying out this function, but may be justified on the ground that they preserve the powers of the executive and promote the finality of its acts and decisions.
Ex Parte Graham 1963 (4) SA 145 (D) is an important case in the South African law of persons and succession. Briefly, the deceased left a will stipulating that her adopted son would inherit her estate in the event of her death. The will added, however, that, if he predeceased her, her mother would inherit the estate.
In Ex Parte Steenkamp and Steenkamp, an important case in the South African law of succession, Mr. and Mrs. K. bequeathed a farm and certain movable property to their children born and to be born of their daughter. Their son-in-law subsequently murdered Mr. and Mrs. K. At the time of their deaths, Mr. and Mrs. K's daughter and son-in-law had two children, and the daughter was pregnant with a third child. The nasciturus was born alive, but died when it was six months old. In terms of the Intestate Succession Act, Mr. and Mrs. K.’s daughter and son-in-law would inherit from their infant child.
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.
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 Ex Parte Maurice, an important case in South African succession law, the facts were these: A few weeks before his death, the deceased forwarded a draft of his will in his own handwriting to a building society, along with a letter asking them to “knock this document into shape and finalise it in legal jargon.” The question before the court was whether it should exercise its discretion to declare the will valid, even though it had not been signed by any witnesses, etc. The court held that there are three requirements which must be fulfilled before condonation is given:
- The document must be drafted or executed by a person
- who has since died;
- and who intended the document to be his will.
In Macdonald v The Master, an important case in the South African law of succession, the deceased had left four handwritten notes before he committed suicide. In one of the notes, there was an indication that his will was to be found on his computer at work in a particular file. The document on the computer was not signed by the deceased nor any witnesses; the Master rejected it.
In Senekal v Meyer, an important case in South African succession law, the testator had a valid will. On it he had written the word “gekanselleer” (cancelled) on both of the pages of the copy in his possession. The Master, however, accepted the testator's attorney’s copy as the deceased's valid will and testament.
Testate succession exists under the law of succession in South Africa.
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:
References
- Ex parte Lutchman & others 1951 (1) SA 125 (T).
