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A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the "settlor", the party to whom the right is entrusted is known as the "trustee", the party for whose benefit the property is entrusted is known as the "beneficiary", and the entrusted property itself is known as the "corpus" or "trust property". A testamentary trust is created by a will and arises after the death of the settlor. An inter vivos trust is created during the settlor's lifetime by a trust instrument. A trust may be revocable or irrevocable; an irrevocable trust can be "broken" (revoked) only by a judicial proceeding.
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.
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.
Lapse and anti-lapse are complementary concepts under the US law of wills, which address the disposition of property that is willed to someone who dies before the testator.
Inheritance law in Canada is constitutionally a provincial matter. Therefore, the laws governing inheritance in Canada is legislated by each individual province.
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."
Daniels v Campbell NO and Others, an important case in South African law, was heard in the Constitutional Court on 6 November 2003, with judgment handed down on 11 March 2004. The applicant was a woman married in terms of Muslim rites, whose husband had died intestate. The court noted that Muslim marriages were not recognised in South African law. It concluded that this violated section 9 of the Constitution. Accordingly, it was held that the applicant could inherit. The ambit of this judgment was restricted to de facto monogamous Muslim marriages; it was extended to polygamous Muslim marriages in Hassam v Jacobs. In this Context the word "spouses" was questioned
Hassam v Jacobs NO and Others, an important case in South African law, was heard in the Constitutional Court on 19 February 2009, with judgment handed down on 15 July. The applicant was a party to a polygamous Muslim marriage, whose husband had died intestate. The Constitutional Court held that precluding the applicant from inheriting unfairly discriminated on the grounds of religion, marital status and gender, and was therefore inconsistent with section 9 of the Constitution. Accordingly, it was held that the applicant could inherit. The ambit of this judgment extended the ruling in Daniels v Campbell to polygamous Muslim marriages.
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.
Insolvency in South African law refers to a status of diminished legal capacity imposed by the courts on persons who are unable to pay their debts, or whose liabilities exceed their assets. The insolvent's diminished legal capacity entails deprivation of certain of his important legal capacities and rights, in the interests of protecting other persons, primarily the general body of existing creditors, but also prospective creditors. Insolvency is also of benefit to the insolvent, in that it grants him relief in certain respects.
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 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 Estate Davies, an important case in South African succession law, the testator bequeathed £2000 in his will to a person who was not named in the will itself, but on a document which was in a sealed envelope given to his attorney. This document was not signed by witnesses.
In Ex Parte Lutchman, an important case in South African succession law, the deceased had left certain property to his six children in equal shares in a validly executed will. One of the deceased's children took out three life insurance policies on his father's life and explained to his father that in order for him to get the benefits of the policies when he died, he must draft a new will. The only provision in the second will was that the son was appointed the sole heir of the insurance policies, so he did not deal with any of the rest of his estate. Furthermore, he accidentally included a revocation clause in the new will, so its effect was that everything except the insurance policies devolved according to the law of intestate succession. At that stage, extra-marital children of persons marriage in terms of Hindu custom could not inherit intestate. The children of the deceased approached the court to declare the second will invalid insofar as it revoked the previous will. The court held that the revocation clause in the second will was obviously a mistake, so this clause was held to be pro non scripto.
Testate succession exists under the law of succession in South Africa.
In Anderson v Estate Anderson, an important case in the South African law of succession, the testator had bequeathed a farm to his four sons, subject to a fideicommissum in favour of their eldest sons to the fourth generation, and subject to the limitation that any son selling his share was bound to sell to the remaining sons or son.
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 Stephens' Estate 1943 CPD 397.
