Dying and The Law - Hospice Palliative Care Association of South ...

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DYING WITHOUT A WILL: INTESTATE SUCCESSIONAnswers to Scenario 1Follow the procedure step bystep:i) Mr Sibanda has left a wifeand three children. In termsof the law the survivingspouse, Mary, will either getan equal share of theproperty, as a descendant, orR125 000, whichever is thegreatest amount.ii) If you divide 260 000 by 4(wife plus 3 children) = 65000. This is an amount that isless than R125 000. Check thelaw. The wife must get thegreater amount.iii) The wife Mary will thereforeget R125 000. The threechildren will share theremaining amount in equalsharesiv) 260 000 – 125 000 = 135 000,which is the remainingamount. This amount mustnow be divided by 3 whichequals R45 000.v) Each child will receive R45 000.Answers to Scenario 2Follow the procedure step by step:i) Kevin has no spouse and nochildren but has one survivingparent and descendants of apredeceased parent.ii) The surviving parent inheritshalf of the estate. The estateis divided in half: R700 000divided by 2= R350 000. Kevin’smother inherits R350 000.iii) The remaining R350 000 willbe divided amongst thedescendants of thepredeceased parent. Thismeans that Connie andBrandon will share R350 000equally and receive R175 000each.iv) Martin is related to Kevinthrough his mother Mary andwill inherit nothing.ExerciseRead the following storiesScenario 1Mr Sibanda dies without drawing up a will. He left:• his wife, Mary• three children, Nkhosi, who is 5 years old, Bernard, who is 10 years oldand Thandi, who is 19 years old.After all his debts have been paid off, his estate adds up to R260 000.QuestionHow much will Mary, Nkhosi, Bernard and Thandi inherit?Note: In this example the marital regime has already been sorted out, theexercise is only looking at the intestate estate.Scenario 2Kevin forgets to make a will. After his death the Master has to devolve hisdeceased estate.Kevin never married and he had no children. He did have a brother and asister, Connie and Brandon, and a half brother Martin, who was his mother’sson from a previous marriage. Although his father has passed away, hismother is still alive. Kevin leaves an estate of R700 000.QuestionWho will inherit?After reading the above scenariosa) Draw a diagram showing the lines of inheritance for each senario.b) Give reasons for the answers you gave to Scenario 1 and Scenario 2 i.e. Whodo you think will inherit and how much will they inherit?Notes186 Chapter 12 | Dying and The Law
CUSTOMARY LAW OF INHERITANCEIntestate succession in terms of AfricanCustomary Law is based on the principleof primogeniture. What primogenituremeans is that:Only a male, who is related to thedeceased through the male-line, isentitled to inherit.An example of this is where the eldestson of the senior wife or his descendant,if he is dead, usually takes over as thehead of the house when the head of thehouse dies. In this way, the formalcustomary law of succession discriminatesagainst women and children by excludingthem from their rightful inheritance.Often what happened was that, after thedeath of the adult male, the widow andthe children were thrown out of thefamily home and the widow had verylittle legal protection.In response to the unfairness that wasthe result of certain discriminatorysituations, changes have recently takenplace that directly impact on thecustomary law of inheritance and therights of women and children.In the Constitutional Court decision ofBhe and Others v Magistrate Khayelitshaand Others 2005 (1) SA 580, a ruling wasmade that certain laws, dealing with theadministration of black estates, wereunconstitutional because theydiscriminate against women. This decisionhas had a far reaching impact on the futureadministration of black estates, and newlaws have been developed and debated.In South Africa a new Act has beenrecently passed and is called the Reformof Customary Law of Succession andRegulation of Related Matters Act 2009.NotesA will written by the adult malebefore he dies protects his wife andchildren from such a practice. Seepage 183 and the example of aSimple Will on page 184 for guidanceon drawing up a will.Case StudyBhe and Others v MagistrateKhayelitsha and Others 2005The Bhe case concerned two younggirls, aged 9 and 2. The customary ruleof primogenture that prevented themfrom inheriting their father’s property,because of their female gender, waschallenged on their behalf.The girls had been living in Khayelitshawith their parents until their father’sdeath. Even though the parents hadbeen together for twelve years, theparents were not legally married. Aftertheir father had died, the familycontinued to live on the property untiltheir grandfather told them to leave.The grandfather claimed that underAfrican customary law, the houseshould now be the property of theeldest male relative of the father’schildren. This meant that, in terms ofthe rule of primogeniture, the familyhouse would become his property andhe then planned to sell it.The court decided in favour of the girlsand against the grandfather since thiswas a clear case of African femalesbeing discriminated against. The twogirls were declared to be the sole heirsof their father’s estate and were giventhe right to inherit equally.Topicfor discussionWhat do you think of theoutcome of this case?The Court decided that certainlaws, dealing with theadministration of black estates,were unconstitutional becausethey discriminate againstwomen. This decision has hada far reaching impact on thefuture administration of blackestates, and new laws havebeen developed and debated.In South Africa a new Act hasbeen recently passed and iscalled the Reform ofCustomary Law of Successionand Regulation of RelatedMatters Act 2009.Chapter 12 | Dying and The Law187
Page 1 and 2: CHAPTER12Dying and The LawIntroduct
Page 3 and 4: INTRODUCTIONEstate Planning - putti
Page 5 and 6: DYING WITH A WILL - TESTATE SUCCESS
Page 7 and 8: DYING WITH A WILL - TESTATE SUCCESS
Page 9: DYING WITHOUT A WILL: INTESTATE SUC
Page 13 and 14: THE LEGAL PROCESS AFTER SOMEONE DIE
Page 15 and 16: WHEN SOMEONE DIES AT HOMEWhen someo
Page 17 and 18: FINAL CHECKIt is very difficult to

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