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A notary public of the common law is a public officer constituted by law to serve the public in non-contentious matters usually concerned with general financial transactions, estates, deeds, powers-of-attorney, and foreign and international business. A notary's main functions are to validate the signature of a person ; administer oaths and affirmations; take affidavits and statutory declarations, including from witnesses; authenticate the execution of certain classes of documents; take acknowledgments ; provide notice of foreign drafts; provide exemplifications and notarial copies; and, to perform certain other official acts depending on the jurisdiction. Such transactions are known as notarial acts, or more commonly, notarizations. The term notary public only refers to common-law notaries and should not be confused with civil-law notaries.
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.
In common law jurisdictions, 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.
The High Court of South Africa is a superior court of law in South Africa. It is divided into nine provincial divisions, some of which sit in more than one location. Each High Court division has general jurisdiction over a defined geographical area in which it is situated. The decisions of a division are binding on magistrates' courts within its area of jurisdiction. The High Court has jurisdiction over all matters, but it usually only hears civil matters involving more than 400,000 rand, and serious criminal cases. It also hears any appeals or reviews from magistrates' courts and other lower courts.
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.
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.
John Punch was a Central African resident of the colony of Virginia who became its first enslaved person.
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 Theron v The Master (2001), an important case in the South African law of succession, Mr and Mrs Theron were married in community of property. Mr Theron died and left certain property to his grandson in a trust. Mr Theron's son was appointed as the trustee, and had signed the will as a witness. Mrs Theron sought an order declaring that their son could benefit from the will despite signing as a witness.
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 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.
Smith v Parsons NO and Others is an important case in South African succession law, decided in the Supreme Court of Appeal in March 2010. It concerned the condonation of a suicide note as an amendment to the deceased's 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.
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:
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
- McDonald and Others v The Master and Others 2002 (5) SA 64 (O).
