Under South African law a person can die testate or intestate. Testate succession refers to when a deceased leaves a valid Will that determines how his/her assets are to be distributed. Intestate succession refers to when a deceased dies without leaving a valid Will. There are circumstances where a deceased person makes a Will that does not dispose of his entire estate, such a person will be considered to have died partially testate and partially intestate.

TESTATE SUCCESSION

Capacity to make a Will.

Section 4 of the Wills Act states that persons 16 years and older that can appreciate the nature and effect of their actions are allowed to make a Will.

Formalities of a Will:

Wills must comply with the formalities prescribed by section 2 of the Wills Act 7 of 1953. A Will is valid if:

• it is a written document;
• it is signed at the end of each page by the testator or alternatively by another person in the presence of the testator; and
• it is signed in the presence of at least two competent witnesses at the same time.

Competent witness is considered as a person 14 years and older who is capable of giving evidence in the court of law.

It is important to note that the word “sign” includes the making of a mark. Only the testator can sign the Will by making a mark. In situations where the testator signs the Will by making a mark or someone else signs the Will on his/her behalf the validity of the Will is determined by the presence of a commissioner of oaths.

The role of the Commissioner of Oaths:

The Commissioner of Oaths certifies that he is satisfied with the identity of the testator and that the Will signed by way of mark or by someone else in his presence is that of the testator. The Commissioner of Oaths signs every page of the Will excluding the page where his certificate appears on. The Will of the testator in such situations must be signed and witnessed in the presence of the Commissioner of Oaths. The Commissioner of Oaths is not allowed to function as both a witness and certifying offices.

The Will must be done as soon as possible, if the testator dies before the Commissioner of Oaths certifies his/her Will, the Commissioner of Oaths must attend to it as soon as possible.

An example of the Commissioner of Oaths Certificate in terms of section 2 (1) (a) (v) can be found in schedule 1 of the Wills Act 7 of 1953.

Side note: The word testator simply refers to the person who makes the Will.

INTESTATE SUCCESSION

This form of succession applies when a deceased has no valid Will or did not address all his assets in his Will. The assets not addressed in his Will, will be dealt with in terms of the Intestate Succession Act 81 of 1987.

Application of the provisions of the Intestate Succession Act are as follows:

1. If a deceased is survived by a spouse but has no children, the surviving spouse inherits the estate. If the deceased is a man in a polygamous relationship his surviving spouses would inherit the estate in equal shares.
   
   
2. If the deceased is survived by his/her children but not a spouse, the children will inherit the estate and in situations where the child passed away before the parent the grandchildren will inherit per stripes.
   
   
3. If the deceased is survived by the spouse and his/her children, the spouse will inherit R250 000.00, or a child’s share whichever amount is greater, and the children will inherit what is left in the estate.
   
   
4. If the deceased has no spouse or children but is survived by his/her parents then the parents will inherit the estate equally.
   
   
5. If the deceased has no surviving spouse, children and one parent of the deceased is passed away then the surviving parent will inherit half the estate and the children of the parent that passed away will inherit the other half. If the parent that passed away has no children, the entire estate will go to the surviving parent.
   
   
6. If the deceased is not survived by a spouse, children or his/her parents but the children of his/her mother and the children of the his/her father who are related to the deceased because of his/her parents, half of the estate devolves on the children of the mother and the other half devolves on the children of the father per stripes. This has the effect that children that are born from the mother and father inherit from both sides and children born from either the mother or father will inherit only from that parent.
   
   
7. If one parent of the deceased has no children, then the children of the surviving parent will inherit the estate.
   
   
8. If the deceased is not survived by his/her spouse, children, his/her parents and their children, then the next in line are blood relatives nearest in degree (per capita). They inherit the estate in equal shares.
   
   
9. If no living relatives are traced, the proceeds of the intestate estate are paid over to the Guardian fund in accordance with section 43(6) of the Estates Act 66 of 1965 and if no family members or relatives claim within 30 years, the intestate estate is forfeited to the State.

Notes related to Intestate Succession

• Illegitimate children are entitled to inherit from both their natural parents or blood relations.
• An adopted child is a descendant of his/her adoptive parents. This means that the child cannot inherit from their natural parent except if the natural parent is the adoptive parent or if the parent is married to the adoptive parent.

Reference list:

The Wills Act 7 of 1953.

Intestate Succession Act 81 of 1987.

Deceased Estates 11^th Edition.

LEAD Wills and estates training guide – published on 01/01/2022.