About this module
The Law of Succession teaches what happens to a person's estate when they die: who inherits when there is no will, what makes a will valid, how much freedom a testator has, what a will can contain, and how an estate is administered. Educational tool, not legal advice. All law is South African.
Level: usually second or third year (LLB). Prior knowledge: Module 2 (Law of Persons: the nasciturus fiction, the end of legal subjectivity), Module 3 (Law of Contract) and Module 9 (Family Law: marriage, property systems and life partnerships).
How this guide teaches. Each chapter starts with a problem, gives the big picture, teaches the rules with case boxes (the legal issue, what the court held, and why it matters), lists common mistakes, sums up in short, and ends with practice questions, flashcards and a quiz. Cases are taught by the legal issue they decide, not by their facts; amounts are never tested.
Common cases and how they are checked
| Chapter | Case | Legal issue | Status (27 October 2026) |
|---|---|---|---|
| W2 Intestate succession | Bhe v Magistrate, Khayelitsha [2004] ZACC 17 | Is male primogeniture in customary intestate succession constitutional? | Read for Module 1 |
| W2 Intestate succession | Gory v Kolver NO [2006] ZACC 20 | Must permanent same-sex life partners be treated as spouses on intestacy? | Read on the SA Law Library |
| W2 Intestate succession | Hassam v Jacobs NO [2009] ZACC 19; 2009 (5) SA 572 (CC) | Are spouses in polygynous Muslim marriages "spouses" on intestacy? | Described from a summary |
| W2 Intestate succession | Bwanya v Master [2021] ZACC 51 | Are surviving opposite-sex permanent life partners heirs on intestacy? | Read for Module 9 |
| W4 Formalities and condonation | Van der Merwe v Master [2010] ZASCA 99; 2010 (6) SA 544 (SCA) | Can an unsigned, emailed document be condoned as a will under s 2(3)? | Read on SAFLII |
| W4 Formalities and condonation | Bekker v Naude 2003 (5) SA 173 (SCA) | Must the document be drafted or executed by the deceased personally? | Described from secondary sources |
| W6 Capacity to inherit | Smit v Master, Western Cape [2022] ZAWCHC 56 | Is a person who took part in killing the deceased unworthy to inherit, even without a conviction? | Read on SAFLII (High Court) |
| W7 Freedom of testation | King v De Jager [2021] ZACC 4; 2021 (4) SA 1 (CC) | May a private will exclude descendants because of their gender? | Read on SAFLII (last 21% not read) |
| W7 Freedom of testation | Curators ad litem, Emma Smith Educational Fund v UKZN [2010] ZASCA 136 | May a court remove a racial restriction from a charitable testamentary trust? | Read on the SA Law Library |
| W9 Substitution and accrual | Moosa v Minister of Justice [2018] ZACC 19 | Does "surviving spouse" in s 2C(1) include spouses in Muslim marriages? | Read on SAFLII |
| W10 Testamentary trusts | Land and Agricultural Bank v Parker [2004] ZASCA 56 | Is a trust a legal person, and must trustees act jointly? | Read on the SA Law Library |
| W12 Interpretation of wills | Spangenberg v Engelbrecht NO [2023] ZASCA 100 | How are wills interpreted, and does Endumeni apply? | Read on SAFLII |
| W14 Customary succession | Shilubana v Nwamitwa [2008] ZACC 9; 2009 (2) SA 66 (CC) | May traditional authorities develop customary rules of succession? | Described from a summary |
Module blueprint
| Chapter | Question it answers | Outcome |
|---|---|---|
| W1 Introduction | What is an estate, and who takes it? | LS1 |
| W2 Intestate succession | Who inherits when there is no valid will? | LS2 |
| W3 Testamentary capacity | Who may make a will? | LS3 |
| W4 Formalities and condonation | What makes a will formally valid, and when may a court save a defective one? | LS4 |
| W5 Revocation and revival | How is a will revoked, and what happens on divorce? | LS5 |
| W6 Capacity to inherit | Who may not inherit, even if named? | LS6 |
| W7 Freedom of testation and its limits | How free is a testator, and where does the law step in? | LS7 |
| W8 Content I: conditions and the modus | How can a testator attach conditions or duties to a benefit? | LS8 |
| W9 Content II: substitution, fideicommissum, usufruct and accrual | What happens when a benefit passes on, is shared over time, or fails? | LS9 |
| W10 Testamentary trusts | How does a trust created by a will work? | LS10 |
| W11 Collation | When must a descendant bring lifetime gifts into account? | LS11 |
| W12 Interpretation of wills | How do courts find what the testator meant? | LS12 |
| W13 Succession by contract | Can a person bind themselves to leave property by agreement? | LS13 |
| W14 Customary law of succession | How do estates of people living under customary law devolve today? | LS14 |
| W15 Administration of estates | What are the steps from death to distribution? | LS15 |
W1: Introduction
Problem. Nomvula dies leaving a house, a car, a bank account, a credit-card debt and a life policy naming her sister as beneficiary. She left a will that gives her car to her nephew and "the rest of my estate" to her two children. Who gets what?
The big picture. On death, a person's estate (assets and liabilities) is administered by an executor. Debts are paid first; what remains passes to the beneficiaries. Succession is testate when it follows a valid will and intestate when there is no valid will (or the will does not dispose of everything).
W1.1 Key concepts
- Estate: all the deceased's assets and liabilities at death. Some assets fall outside it, such as a life policy payable to a named beneficiary.
- Heir: a person who inherits the whole estate or a share of the residue (what is left after debts and legacies).
- Legatee: a person who receives a specific asset or amount (a legacy).
- Testator: the person who makes a will.
- Vesting (dies cedit): the moment a beneficiary acquires a right to the benefit, usually at the testator's death. Dies venit: the moment the beneficiary may claim delivery, after the estate is administered.
W1.2 Sources
The main statutes are the Wills Act 7 of 1953, the Intestate Succession Act 81 of 1987, the Administration of Estates Act 66 of 1965, the Trust Property Control Act 57 of 1988, the Maintenance of Surviving Spouses Act 27 of 1990 and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. The common law fills the gaps, and everything is subject to the Constitution.
Back to the problem. The executor pays the credit-card debt from the estate. The nephew is a legatee of the car; the children are heirs to the residue (house and bank account). The life policy goes to the sister directly; it is not part of the estate.
In short. Estate = assets and liabilities; debts first; heirs take the residue, legatees take specific things. Testate succession follows a valid will; intestate succession follows the Intestate Succession Act.
W1 practice
- Is a life policy with a named beneficiary part of the estate? Answer: generally no; it is paid to the beneficiary directly.
- What is the difference between vesting and the right to claim delivery? Answer: vesting (dies cedit) gives the right, usually at death; delivery (dies venit) can be claimed after administration.
Flashcards
| Front | Back |
|---|---|
| Estate | All the deceased's assets and liabilities at death |
| Heir | A person who inherits the residue or a share of it |
| Legatee | A person who receives a specific asset or sum |
| Testate succession | Succession under a valid will |
| Intestate succession | Succession by law when there is no valid will, or it does not cover everything |
| Dies cedit | Vesting: the beneficiary acquires the right to the benefit |
| Dies venit | The time when delivery of the benefit can be claimed |
| Who pays the debts? | The executor, from the estate, before distribution |
Quiz
- A person who receives "my car" under a will is: (a) an heir (b) a legatee (c) an executor. Answer: (b).
- Intestate succession applies: (a) only when there is no will at all (b) when there is no valid will, or the will does not dispose of the whole estate (c) only to married people. Answer: (b).