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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.
A testator is a person who has written and executed a last will and testament that is in effect at the time of their death. It is any "person who makes a will."
A will contest, in the law of property, is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator or that the will is otherwise invalid. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence or fraud. A will may be challenged in its entirety or in part.
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.
The slayer rule, in the U. S. law of inheritance, stops a person inheriting property from a person they murdered.
In civil and property law, hotchpot is the blending, combining or offsetting of property to ensure equality of a later division of property.
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.
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.
Re Barlow's Will Trusts [1979] 1 WLR 278 is an English trusts law case, concerning certainty of the words "family" and "friends" in a will.
In L. Taylor v AE Pim, an important case in the South African law of succession.
In Danielz v De Wet, an important case in the South African law of succession, Danielz was the executor of De Wet's estate. Danielz sought an order declaring the deceased's widow unworthy of inheriting. The reason for this was that the widow had hired an accomplice to assault the deceased and as a result of the assault, the deceased died.
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 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.
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.
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.
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
- Kirsten v Bailey 1976 (4) SA 108 (C).
