Law of Succession:

ERF 222
Ms. Kgopotso Maunatlala

Lecture 2: Chapter 1 Part 2

July 2023
1. IMPORTANT CONCEPTS

• Personal right?
Delatio • When does a beneficiary’s claim against
the estate (executor) arise?
Dies cedit

Dies venit General Answer:

The moment the estate “falls open” - Delatio

2. FALLING OPEN OF THE ESTATE (DELATIO): WHEN?

• Usually, but not always upon the death (or just after the death) of the deceased/testator

• It is also the moment when the beneficiary’s right becomes vested (dies cedit) = meaning he now has a vested personal right
to claim his benefit BUT

• Delatio ≠ immediate enforceability (force/compel the executor through a legal process to deliver or transfer the asset to him)

• The moment the beneficiary can enforce his vested right is known as “dies venit”

Therefore, the moment of vesting (dies cedit) and th e moment you can enforce your vested right (dies venit) normally
coincide
However, Dies venit or moment beneficiary can enforce his vested right can sometimes be postponed!

Dies venit can never precede dies cedit

TESTATE SUCCESSION:
Testate Succession

Dies cedit and dies venit depends on the intention of the testator as it emerges from the wording of the will
EXAMPLES: Dies cedit, Dies venit

1. Pure Bequest
“I leave my house to X’

Legal position:
• Dies cedit: At the time of death of the testator
• Dies venit: Theoretically also at the time of death BUT
Practice – Because of the lengthy period of the entire
administration process (Syllabus Theme 6), a beneficiary
can only enforce his right against the executor once the
process is completed! S 35(12) Administration of Estates Act
66 of 1965
EXAMPLES: Dies cedit, Dies venit
2. Suspensive Condition
“I leave my house to my son on condition that he passes the BA law
degree”.

Legal position:
Dies cedit: Postponed pending the fulfilment of the suspensive condition
Dies venit: Also postponed

If the son in this example survives the testator (T) but dies before he obtains
the BA law degree, no right is vested in his estate and there is nothing that
can be transferred to the son’s beneficiaries.
EXAMPLES: Dies cedit, Dies venit

3. Time Clause:

“I bequeath R 50 000 to my daughter D, but she may not receive it until she turns 25.”

Legal position:
Dies cedit: Moment of death of T
Dies venit: Postponed to when daughter D turns 25

Therefore, a vested right to claim the benefit occurs immediately, but she has to wait to enforce this right!

What if D dies at age 24?

EXAMPLES: ANSWER
• The vested right to claim (personal right) = has a value and thus forms part of her estate.
• The personal right can devolve upon her testate or intestate beneficiaries…..
However:
Her beneficiaries can’t have more rights than she had. They have to wait until she would have turned 25 before
they can enforce/receive the R 50 000.

This issue of the vesting and enforcement of rights is applicable to all the different types of testamentary
institutions you will encounter in Syllabus Theme 4 i.e. resolutive condition, resolutive dies, modus
(obligation) usufruct, fideicommissum, trust.
INTESTATE SUCCESSION:
Dies cedit: Rights vest in intestate beneficiary upon the deceased’s death.

There is nothing indicating possible postponements of rights

Dies venit: At death of the deceased. But In practice: After completion of the administration process.
3. VESTING OF AN INTESTATE INHERITANCE

NB! Only natural persons, irrespective of their age can inherit intestate.
Therefore, companies, close corporations, firms, associations, trusts,
syndicates, body corporate, any such entity or animals cannot inherit
intestate.

1. NO WILL – vesting of right & delatio (the time at which intestate heirs are determined) will occur at the death of the
deceased
2. Valid will which later becomes inoperative
 Harris v Estate MacGregor

• Intestate estate vests on the date when it first became factually certain that his/her will have become inoperative (not at
the death of T).
• Interstate heirs are determined (Delatio) when the will becomes inoperative
What if a person dies leaving a valid will, that later becomes inoperative?
Harris v Assumed Administrator, Estate Macgregor
• Testator (T) executed a valid will in 1914 and only died in 1943
• Entire estate must go into a testamentary Trust:
• Wife V = income beneficiary
• After V’s death = (capital or trust property):
o Their children (born of their marriage), if no surviving children
born of their marriage,
o Brother X, but if the brother predeceases the wife, V, the capital
of the Trust will pass to the brother’s children (X’s children)
• T, died with no children
• X, predeceases V, the wife, but also has no children
• In other words, each contingency for which the testator had
provided therefore failed and consequently, the will became
inoperative and the estate had to devolve intestate
Estate devolves: Intestate
Date for determining intestate heirs?
 At what stage must the intestate beneficiaries who have vested
rights be determined?
 Must they be determined at T’s death long ago, or at the moment
when the will became inoperative, namely when brother X passed
away leaving no children?
 Court: Intestate heirs must be determined when the will became
inoperative and the need to distribute the estate ito intestate
succession became necessary.
 Thus when Brother X, died without children.
 ADIATION
Question: Does the vesting of rights occur automatically when the moment of vesting concerned occurs (upon dies cedit)? OR Does the
beneficiary only acquire a vested right when the ACCEPTS / ADIATES?

Uncertainty:
•Greenberg v Estate Greenberg (A) – automatically

• Wessels v De Jager (SCA) – upon death, the beneficiary only acquires the power to accept…acceptance necessary –

– Doubtful whether this position is correct

Then what is the nature of the beneficiary’s right?

Greenberg v Estate Greenberg

•Beneficiary does not become owner immediately on the death of (T)) – At most, the beneficiary acquires a vested right to claim delivery or transfer
of asset

•Beneficiary will only become the owner upon delivery/transfer – Property law

•If assets have to be sold by the executor in order to pay debts/liabilities? This can result in the beneficiary never becoming owner despite being
awarded the asset in a will!
ADIATION

Who owns the estate of the deceased then in the period between death and transfer of assets to the beneficiary?

• Uncertain – Moot point in SA Law of Succession :

o It is not the deceased since he passed but it is also not the beneficiary because the s/he at most acquires a
vested
right/personal right to claim his benefit.
o Only after he has enforced this right (dies venit) and only after the movable property has been delivered to him
or
immovable property transferred to him, will he become the owner (real right)

Best possible solution:

• The executor in his official capacity becomes the owner
• Caution: But in Van den Bergh v Coetzee 2001 4 SA 93 (T) 95 the court indicated that this notion must not be taken too far!
•Executor does not step into the shoes of the deceased and he does not succeed the deceased.
•He is simply required to administer and distribute the estate ito the Administration of Estates Act.
 CHAPTER 2

•Introduction to the law of intestate succession

(foundation)
•Defining concepts of the law of intestate
succession