NH DLADLA PRIVATE INTERNATIONAL LAW NOTES

SUCCESSION
INTRODUCTION

 We have two types of Succession:

1. Intestate Succession: person dies without a valid will
2. Testate Succession: person dies with a valid will.
1. INTESTATE SUCCESSION
 A person dies without a valid will.
 Movables: are governed by the lex ultimi domicili (LD @death).
 Immovables: are governed by the lex situs
2. TESTATE SUCCESSION
 A person dies testate with a valid will.
OUR MAIN FOCUS: IS THE WILL VALID OR NOT?
We have two instances:
A. Common Law:
 Applicable when someone has left a will, but it is not a written will; it can be an
audio recording or a video recording.
 The common law also applies to anyone who died before 4 December 1970.
 Movables are governed by the lex domicili of testator at the time of executing a will
(LD @execution), lex loci actus and lex ultimi domicili.
 Immovables are governed by the lex situs, lex loci actus, lex ultimi domicili and lex
domicili @execution
B. Statutory law
 Section 3bis of Wills Act gives us 7 testing systems to determine whether a will is
valid or not:
a. lex loci actus [law of the place where the act (execution of will) was done]
b. lex domicili at execution
c. lex ultimi domicili
d. habitual residence (of the testator) at execution of the will
e. habitual residence at the death (testator's death)
f. lex patriae (of testator) at death
g. lex patriae (of testator) at execution (when the testator was execution the will, he was
a national of which country)
》》》a will needs to be valid in terms of any one of the above testing systems for it to be
"valid". [this means that the above may also invalidate a will]
 Additional testing system for immovables: lex situs.
 Airship/Plane: lex libri siti or country of closest connection (closest connection can
be: For example: crew members are from Kenya; Plane passes Kenya every day;
oil or whatever is changed in Kenya).

Power of appointment
 A testator (the donor) may in his will grant to the donee the power to appoint by will
the person (appointee) who shall succeed to certain property after the death of the
done.
 General Rule for P.O.A:
1. Will 2 must be valid in terms of any one of its testing systems. [if this doesn't apply,
move to step 2]
2. Will 2 must be valid in terms of the lex loci actus of will 1 (Will 1 need not be valid in
terms of its own LLA)

Revocation
 In internal South African law, revocation of a will may take place:
(i) by a testamentary provision
(ii) by means of the forms of revocation mentioned in section 2A of the Wills Act 7
of 1953
(iii) ex lege
 General rule: the revocation clause in will 2 shall be valid if:
1. Will 2 (revocation clause) is valid in terms of any of its own testing systems [if
will 2 is formally invalid in terms of testing systems, can the revocatory clause be
saved in terms of step 2?]
2. Will 2 must be valid in terms of any extra testing system in Will 1 and Will 1 must
be valid in terms of that same testing system
 3 outcomes in Revocation:
a. Will 2 is valid and Revocation clause is saved = will 1 is validly revoked.
b. Revocation clause in will 2 is not saved = will 2 doesn't apply and Will 1 is still valid.
c. Only the Revocation clause is saved but the whole of will 2 is invalid = will 2 doesn't
apply and will 1 is validly revoked therefore the person will be deemed to have died
intestate >> apply Intestate succession rules.

Other ancillary issues

1. Requirements for witnesses; extra formalities required for certain testators
Provisions in a legal system that articulate requirements for witnesses (eg their
minimum age) are for the purposes of section 3bis to be regarded as formal
 requirements. The same applies to requirements for testators of a certain age,
nationality or other personal qualifications to observe special formalities in the
execution of a will. Section 3bis (2) “Any requirement of the internal law of any
other state or territory in terms of which a testator of a particular age or nationality
or having any other personal qualification is to observe special formalities in the
execution of a will, or a witness to a will is to possess certain qualifications, shall
be construed as a requirement relating to form only”.
2. Common law remains applicable Section 3bis states in subsection (5) that a will
that would have been valid in terms of the common law remains valid irrespective
of the provisions of article 3bis: “The provisions of this section shall not affect the
validity of a will which but for such provisions would be valid”.
3. Changes in foreign legal system It was decided in Sperling v Sperling 1975 3
SA 707 (A) that changes in a foreign legal system should be applied by a South
African court. According to Kahn, this principle should, in the context of the formal
validity of wills, only apply if the outcome thereof is the validation of the will.
4. Interpretation of wills A will should be interpreted according to the express or
tacit intention of the testator. An express provision could read: “This will must be
interpreted in terms of South African law”. A tacit intention may be clear from the
use of terminology peculiar to a certain legal system. If no intention is clear, the will
should be interpreted in accordance with the lex domicilii at the time of execution.
This applies to both movables and immovables. According to Schoeman, the lex
situs may apply in respect of immovable property “should the lex domicilii produce
a result which is illegal or impossible to give effect to by the lex situs”.
5. Inherent validity and effect of wills Issues such as disinheritance, the existence
of a right to a legitimate portion, a ius relictae, the effect of undue influence, duress
and mistake, the validity of conditions, rectification, etc. In respect of movables, the
inherent validity and effect of a will is governed by the lex ultimi domicilii; In respect
of immovables, this is governed by the lex situs. For rectification, See Evelyn-
Wright v Pierrepoint 1987 2 SA 113 (E): rectification in respect of movables is
governed by the lex ultimi domicilii.
6. Capacity to inherit: The capacity to inherit should, according to Forsyth, be
governed by the lex domicilii of the beneficiary at the time of execution of the will
of the deceased; and by the lex situs in respect of immovables. Neels, as far as
the time question is concerned, the moment of the deceased’s death should prevail
as this is also the instant that capacity to inherit is usually determined according to
internal South African law. Van der Merwe, Rowland and Cronje: in all cases the
lex ultimi domicilii of the testator should govern in respect of movables and the lex
situs in respect of immovables.
7. Revocation by destruction According to Neels, Forsyth and Kahn, revocation by
destruction, in respect of its inherent validity and effect as well as its formal validity,
 should be governed by the lex domicilii at the time of the alleged revocation in
respect of movables and by the lex situs in respect of immovables.
8. Revocation ex lege In Pitluk v Gavendo 1955 2 SA 573 (T), ex lege revocation by
marriage, was held to be governed by the lex domicile matrimonii, both in respect
of movables and immovables. LDM Discriminatory?? other forms of ex lege
revocation, not necessarily related to marriage (eg birth of a child) and all these
should ideally be governed by the same legal system. Neels submit that all forms
of ex lege revocation should be governed by: the lex domicilii at the relevant time
(eg the time of marriage or birth of a child) in respect of movables and the lex situs
in respect of immovables.