Law for Land Managers 1B Basic Legal Principles of Intestate

Succession

Unit 2
Basic Legal Principles of Intestate
Succession
Objectives
After studying this unit you should be able to:

• Define Intestate Succession

• State the Differences between Testate and Intestate Succession.
• Name the laws that regulate Intestate Succession.
• Discuss the three blood relations groups.
• Define and discuss the concept Parental
• Define the concept Stirps.
• Discuss Succession Per Capita and Succession By representation.
• Discuss the Degrees of Consanguinity.
• Discuss the Statutory Law Rules of Intestate Succession
• Discuss the Common Law of Rules of Intestate Succession
• Discuss the position of Adopted Children in Intestate Succession
• Discuss the Native Administration Proclamation No.15 of 1928 in
conjunction with the Estates and Succession Amendments Act No.15 of
2005.
• Discuss Partial Intestacy
• Explain what happens where there are no intestate heirs

Sections:
1. Introduction
2. Blood Relations Groups
3. Succession Per Capita and succession by Representation.
4. Degrees of Consanguinity.
5. The Rules of Intestate Succession.
6. Adopted Children.
7. The Native Administration Proclamation 15 of 1928 (Section 18) as amended
by the Estates and Succession Amendment Act No.15 of 2005.
8. Parental Intestacy.
9. Lack of Intestate Heirs.

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Section 1 Introduction
People that die whilst having executed a will are said to have died testate. On the
other hand, people that die without having a will are said to die intestate.

The law of intestate succession helps to identify the heirs of the deceased where
he has failed to leave a will and it also regulates the devolution of his estate. It is
imperative to note that a person can die partly testate and partly intestate. The
legislation that deals with Intestate succession are:

1. Intestate Succession Ordinance No. 12 of 1946.

2. Native Administration Proclamation No. 15 of 1928

3. Estates and Succession Amendment Act No. 15 of 2005

4. Administration of Estates Act No. 66 of 1966

5. Recognition of Certain Marriages Act No. 18 of 1991.

6. Children’s Act No. 33 of 1960 (Section 74)

Section 2 Blood Relations Groups

There are three groups into which a person’s blood relations can be divided, they
are:

1. ASCENDANTS

They are all ancestors of the deceased, i.e. mother, father, grandmother and
grandfather. These are all people from which he descents.

E. g. John is Sara’s dad and Sara is Mark’s mom. Then John is an ascendant of
Sara and Sara is an ascendant of Mark and both John and Sara are ascendants
of Mark. Thus can be illustrated by the following diagram:

John

Sara

Mark

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2. DESCENDANTS

They are all people that descend directly from the deceased, i.e. his children,
grandchildren and great-grandchildren.
E.g. John is Dave’s father and Dave is Luke’s father. Then Dave is a descendant
of John and Luke is a descendant of Dave, however John is an ascendant of
both Dave and Luke and can thus not be their descendant.

This can be illustrated by the following diagram:

John

Dave

Luke

Adopted children are considered descendants of their adoptive parents but not
descendants of their natural parents.

Extramarital children are considered descendants of their parents however an

extramarital child can only inherit from his/her mother and not from his/her father,
in terms of the laws of Intestate succession. This also applies to incestuous
children as well as adulterous children. The father of an extramarital, incestuous
or adulterous child may also not inherit from this child.

Intestate succession clearly draws a distinction between extramarital, biological

and adopted children even though they are all considered descendants.

3. COLLATERALS

These are people related to the deceased through at least one common
ascendant, e.g. a brother, sister or cousin. Collaterals can be full blood or half
blood. A full blood collateral is related to the deceased through two common
ancestors or parents and a half blood collateral through one common ancestor or
parent.

This can be illustrated by the following diagram:

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E.g.

A B X Y

C
Z W U

G K D E

F H

1. A, B, C, X, Y, Z are Ascendants of the deceased D.

2. F, H, I, J are D’s descendants. J, I’s child is D’s grandchild.

3. G, E, K, W, U are collaterals of D. K’s related to D through both parents, C

and Z and is therefore D’s full brother.

4. G is related to D through only one parent, C, and is therefore a half sister

on the mother’s side. G is the child of C and somebody else from a
previous marriage E is related to D through Z only and is a half brother on
the father’s side. W is D’s full blood aunt on the father’s side and U is a
half uncle on the father’s side.

PARENTAL (PARENTEEL)

A parental is every group of parents and their descendants. The deceased and
his descendants form the first parental, the second parental consists of the
deceased’s parents and their descendants, the deceased’s grandparents and
their descendants are the third parental and the deceased’s great grandparents
and their descendants form the fourth parental, etc.

E.g. with reference to the example of collaterals, one can say that D,F,H,I, & J
are the first parental and D,K,C,Z,E,G are the second parental and so forth.

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STIRPS (STIRPES)

Every descendant of the deceased who survives the deceased and/or

predeceased descendants of the deceased who leaves living descendants forms
stirps.

E.g.

C forms a stirpes as well as B who is survived by F; D does not form a stirpes

because he is not survived by a descendant.

Section 3 Successions Per Capita and

Succession by representation
Heirs inherit per capita if they inherit in equal shares in terms of the law of
intestate succession on the basis of the degree of consanguinity in which they
stand to the deceased. If there is more than one person related to the deceased
in the same degree of consanguinity, each inherits an equal share per capita.

E.g. where A leaves only 2 sons B and C. As the nearest descendants B and C
inherit per Capita on A’s death. Each son inherits half of A’s Estate.

Heirs inherit by representation when he replaces his predeceased ancestor as

heirs in the direct line of descendants, who repudiated or who is unable to inherit.
Thus a person who is related to the deceased in a more remote degree of
consanguinity is treated as if he/she is more closely related to the deceased
because he or she takes the place of another heir. The effect of this is that the
descendants of the first heir is placed on par with regards the intestate
succession as the first heir would have been in had he first inherited.

This can be illustrated as follows;

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A B

C D E

F G

H I J K

The deceased A, had 3 daughters, C, D, E who would normally inherit per capita
from him, but E predeceased A. Consequently C, D each inherit a third of X’s
estate. If E had been alive he would also have inherited a third but he had
unfortunately died before A and thus could not inherit. Luckily E had descendants
who can be moved up to inherit the third of A’s estate which E would have
inherited if he had survived A. E’s descendants form a stirpes and within the
stirpes they inherit per capita. If both F and G were alive, they can be moved up
into the place of predeceased E, and then both F and G will inherit a one-sixth
share. F is alive and therefore inherits one-sixth. However, if G had predeceased
A but left descendants, H, I, J, and K then form a stirpes to inherit the intestate
inheritance which G would have inherited if he had been alive that is to say, to
share one-sixth of A’s estate. Within the stirpes, H,J,I and K inherit per capita so
that each inherits one twenty-fourth of A’s estate.

Section 4 Degrees of Consanguinity

The degree of consanguinity between the deceased and his/her intestate heirs
are very important.

DIRECT LINE

a) Each generation counts as one degree. Father and son are related as each
other in the first degree Grandfather and grandson are related to each other in
the second degree. It is important to remember not to count the deceased.

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COLLATERAL LINE

b) One counts the generations from the blood relation to the nearest common
ancestor of that blood relations and the deceased, and then down to the
deceased. Each generation is counted as a degree. The total number of the
degree of consanguinity is then the number of generations between each person
and the nearest common ancestor added together. Brothers are thus related to
one another in the second degree. An uncle is related to his brother’s children in
the third degree.

This can be illustrated as follows:

E.g.
A B

C D

X and C are brothers, C has a son F. There is one line from C up to the parents
and one line down to D, therefore C and D are related in the second degree. F,
the son of C, is related in the third degree to D.

Step relations cannot inherit intestate from a deceased person since they are not
blood relations of the deceased.

Section 5 The Rules Of Intestate

Succession
The law of Intestate Succession is regulated by the Intestate Succession
Ordinance No.12 of 1946 and Common Law.

A. THE STATUTORY LAW RULES

In terms of the Ordinance the following rules apply if a person dies partially or
wholly intestate and leaves behind a surviving spouse:

RULE 1 – SECTION 1(1) (a)).

If a person dies intestate and is survived by a spouse, to whom he or she was

married in community of property, and leaves a descendants who is entitled to

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inherit intestate, the surviving spouse inherits half of the joint estate by virtue of
the marriage and a child’s share or N$ 50 000-00, whichever is greater.

A child’s share is calculated by dividing the value of the intestate estate by the
number of children of the deceased who have survived him or have predeceased
him but are survived by their descendants, plus one (the surviving spouse).

E.g. A is married to B in community of property and they have a son C. A dies

without leaving a will the estate will devolve as follows: B will receive half of the
joint estate by virtue of her marriage in community of property to A as well as one
child share. Say the intestate estate amounts to N$ 300 000-00 then N$150 000-
00 will go to B and the remainder, N$150 000-00 will be divided equally amongst
B and C which will amount to N$ 75 000-00 each. Thus B will receive N$ 225
000-00 and C will receive N$ 75 000-00.

Thus if the intestate estate amounted to N$ 60 000-00 then B would receive N$

30 000-00 by virtue of the marriage in Community of property and remaining
N$30 000-00 will be divided between B and C because B is entitled to receive a
child’s share or N$ 50 000-00 which ever is greater. B’s child share will be N$45
000-00 however because it is less than N$50 000-00 she will receive N$50 000-
00 and C will only receive N$ 10 000 as opposed to the N$15 000-00 he would
have received had B’s half share and child’s share equalled N$50 000-00 or
more.

RULE 2 – SECTION 1(1) (a)).

If a person dies intestate and is survived by his widow to whom he is married out
of community of property and a descendant who is entitled to inherit intestate.
Then the surviving spouse will inherit one child’s share or N$ 50 000-00
whichever is greater.

E.g. A dies and leaves his wife B, and son C behind. His estate amounts to N$
200 000-00. Then B will receive one child’s share which amounts to N$100 000-
00 and C will receive N$ 100 000-00 which amounts to the other child’s share.

RULE 3 – (SECTION 1(1) (c))

If a person dies intestate and leaves a surviving spouse to whom he/she is

married in or out of community of property and did not leave behind an
descendant who would be entitled to inherit as intestate but leaves behind a
parent or brother or sister which is of full or half blood which is entitled to inherit
intestate the surviving spouse inherits half of the intestate estate or N$50 000-00
which ever is greater.

E.g. A dies intestate leaving behind his wife ‘B’ to whom he is married in or out of
community of property and he is survived by his mother and brother, D, then B

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will inherit half of the estate or N$50 000-00 whilst the other half will be divided
amongst C and D.

RULE 4 – SECTION 1(1) (d)).

Where Rule 1-3 is not applicable at all the surviving spouse shall inherit the
entire intestate estate.

B. THE COMMON LAW RULES

RULE 1

Where there is no surviving spouse or descendants but the deceased is survived

by his parents, they will inherit his estate in equal shares.

E.g. A dies intestate and leaves behind his mother and father and an amount of
N$100 000-00 then his mother and father will share the amount equally and each
will receive N$50 000-00.

RULE 2.

Where the deceased is survived by no spouse but descendants only, then the
descendants inherit the entire intestate estate. Division amongst the descendants
takes place per stirpes and representation is allowed. Thus ancestors and
collaterals cannot compete with descendants to inherit the intestate estate.

E.g. A dies intestate, A’s wife B, sons C and D and his father E have predeceased
him. A is survived by his daughter F, grandsons G and H (the children of C), the
mother I and brother J. F inherits half of the intestate estate and G and H, who
represent the predeceased C, each inherit a quarter of the intestate estate each.
D, who predeceased A does not form a stirpes.

I E

J A B

C F D

G H

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RULE 3

Where the deceased is not survived by a spouse or descendant but by one

parent and descendants of the predeceased parent, then the surviving parent
inherits half of the intestate estate and the descendants of the predeceased
parent the other half. Division amongst the descendant of the predeceased
parent can take place per stirpes or by representation; however it is imperative to
note that where the pre-deceased parent is not survived by descendants then the
surviving parent inherits the whole intestate estate.

E.g.
A B C

___________
D E F H

F dies intestate. F’s spouse G and mother A have predeceased him. After A’s
death, F’s father B married C. F is survived by his father B and stepmother C,
brother D, sister E and half-sister H. B inherits a half of the intestate estate and D
and E each inherits a quarter of the intestate estate seeing that the half-sister H
is related to F through the surviving parent B, H does not share in the intestate
estate. C is not a blood relation of F and thus does qualify as an intestate heir.

Section 6 Adopted Children

In terms of the Children’s Act No. 33 of 1960 (Section 74) a child shall by virtue of
an order of adoption be deemed in law to be the legitimate child of the adoptive
parents. Provided that the adoptive child shall not by virtue of the adoption:

a) Become entitled to any property devolving on any child of his adoptive

parents by virtue of any instrument executed prior to the order of adoption
unless the instrument clearly conveys the intention that the property shall
devolve on the adopted child.
b) Inherit any property ab intestatio from the relative of his adoptive parent.

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An order of adoption shall terminate all the rights and legal responsibilities
existing between the child and his natural parents and their relatives, except the
right of the child to inherit from them ab intestatio.

An adopted is deemed to be the legitimate child of the adoptive parents and

therefore the adoptive parents and their relatives are entitled to inherit also.

Intestation from the adoptive child.

e.g.

A B E F

D C G

C is the natural child of A and B. However C is adopted by E and F. C dies

intestate. E, F and their son G can in the appropriate circumstances be the,
intestate heirs of C. A and B and their daughter D cannot be the intestate heirs of
C.

Section 7 The Native Administration

Proclamation No.15 of 1928
(Section 18) as amended by the
Estate and Succession
Amendment Act No.15 of 2005
Before the amendment of Section 18 the estates of black persons who are
unmarried or married by customary union and who do not leave a valid will are
distributed in terms of Tribal Law and custom under the supervision of the
Magistrate.

This means that the Master of the High Court only administered estates of
whites, coulerds and black people who left valid wills.

The Rehoboth Basters had their own law called the Administration of Estates
(Rehoboth gebied) Proclamation 36 of 1941, in terms of which their estates were
administered. This law was however repealed by Section 2 of the Estates and
Succession Amendment Act No.15 of 2005.

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The Estates and Succession Amendment Act 15 of 2005 has repealed

Subsection (1), (2), (9) and (10) of the Native Administration Proclamation 15 of
1928. In terms of Section 3 of the Estates and Succession Amendment Act, Black
Estates can now also be handled by the Master of the High Court whether the
person died testate or intestate. This became applicable on the 29 th day of
December 2005 and it has no retrospective effect.

However, it is important to note that where all parties concerned are Natives then
the deceased’s estate will be distributed in terms of their Native Law, however
where it is not the case any claim or dispute arising will be decided in a Court
with competent jurisdiction.

The major changes brought about by the Succession Act can be summarised as
follows:
a) The Master of the High Court has the power to administer all deceased
estates
b) All estates are administered in terms of the Administration of estates Act
no. 66 of 1965
c) The Minister of Justice may delegate any powers and functions assigned
to the Master to the Magistrates after consultation with the Master and the
Chief of lower courts. Government Gazette Notice 43 of 2006 delegated
the Master’s powers in terms of Section 18(3) estates that are solvent to
the magistrates.
d) Magistrates may no longer supervise the administration of estates that
exceed N$100 000
e) The Master and the Magistrates are still bound by the intestate law rules
applicable to specific group before the amendment Act came into
operation, i.e. 1) The Rehoboth Basters will still make use of Schedule 2
of the Rehoboth Proclamation, 2) Whites, coloureds and blacks married in
terms of civil law will make use of the Intestate Succession Ordinance 12
of 1946 (as amended) and 3) Black Persons not married in terms of the
civil law will make use of their respective customary law.

Section 8 Partial Intestacy

A person can die partly testate and partly intestate; in this case one should ignore
what the surviving spouse receives in the will when calculating what he/she is
entitled to in terms of the laws of intestacy. In Re MacGillirray’s Will 1943 WLD
29 at 40.

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Section 9 Lack of Intestate Heirs

If a person dies leaving no intestate Heirs, Common Law dictates that the state
acquires the whole estate bona vacantia. However in, terms of Section 35(13)
and 92 of the Administration of Estates Act 66 of 1965, the executor is required to
convert the intestate estate into money, pay the debts of the deceased and place
the proceeds thereof in the Guardian’s Fund. The particulars about the money in
the intestate estates are published in the Government Gazette from time to time
so that interested people are aware of it. Where nobody lays a legitimate claim
thereto within a period of 30 years the money then accrues to the State.

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REVISION QUESTIONS
1. What is intestate succession?
2. Discuss the laws regulating intestate succession
3. Name the blood relations groups
4. Define Parental
5. Discuss the concept Stirps
6. Explain the difference between succession Per Capita and Succession by
Representation
7. Explain the degrees of consanguinity
8. What are statutory law rules of intestate succession?
9. What are the common law rules of intestate succession?
10. Can an adopted child inherit from his biological parents and adopted
grandparents? (Motivate)
11. What are the major changes brought by the Succession Act 15 of 2005?
12. What is partial Intestacy?

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