Wills & Estates – Core South-African Vocabulary

A comprehensive set of vocabulary flashcards covering South-African wills and estates concepts, statutes, sections, procedures and Latin maxims discussed throughout the lecture notes.

Wills Act 7 of 1953

Primary statute regulating the validity, execution, amendment and revocation of wills in South Africa.

Intestate Succession Act 81 of 1987

Statute determining the heirs and their shares where a person dies without a valid will.

Child’s Share

Portion a spouse receives when inheriting with descendants: net estate ÷ number of children + surviving spouse, subject to a R250 000 floor.

Section 1(1)(c) (Intestate Succession Act)

Gives the surviving spouse a child’s share (or R250 000, whichever is greater) when inheriting with descendants.

Section 1(6) (Intestate Succession Act)

Prevents a minor from renouncing an inheritance; any attempted renunciation is void.

Section 1(7) (Intestate Succession Act)

Allows a descendant to inherit by representation if his parent is disqualified from inheriting.

Die bloedige hand erf nie

Common-law maxim: a person who unlawfully causes the death of the deceased is disqualified from inheriting.

Nasciturus Fiction

Unborn child conceived at time of death is deemed already born for inheritance if eventually born alive.

Massing of Estates

Two or more testators combine their separate estates into one in a joint will, normally giving a benefit to the survivor.

Usufruct

A limited right allowing a person to use and enjoy another’s property (and its fruits) for life or a fixed term.

Joint Will

Single testamentary document executed by two (usually spouses) containing their dispositions and often involving massing.

Adiation

Formal acceptance by a surviving testator of the massing provisions in a joint will.

Repudiation

Rejection by a beneficiary or surviving testator of a benefit or massing provisions in a will.

Codicil

Supplementary testamentary document altering, revoking or adding to an existing will.

Section 2(3) Wills Act

Empowers a court to declare a non-compliant document a valid will if intended as such by the deceased.

Section 2B Wills Act

Revokes benefits to an ex-spouse if the testator dies within three months of divorce unless the will indicates otherwise.

Section 4A(1) Wills Act

Disqualifies a beneficiary who signs as witness, writes the will, or their spouse, from receiving benefits, subject to court relief.

Section 4A(2) Wills Act

Allows a court to declare a disqualified witness/beneficiary competent if no fraud or undue influence occurred.

Section 2(1)(a)(v) Certificate

Commissioner of Oaths certificate required when a testator signs by mark or proxy, confirming identity and authenticity.

Competent Witness (Will)

Person aged 14 or older and able to give evidence in court who signs the will in the presence of the testator and each other.

Competent Testator

Person 16 years or older who understands the nature and effect of making a will.

Guardian’s Fund

Master-administered fund holding money due to minors or absent heirs when no trust or guardian receives it.

Executor

Person nominated and appointed (via Letters of Executorship) to wind up a deceased estate.

Executor Dative

Executor appointed by the Master when no executor is named or the nominated one cannot act.

Estate Representative (s18(3))

Person appointed to wind up a small estate not exceeding R250 000; fewer statutory formalities apply.

Letters of Executorship

Official document from the Master authorising an executor to act.

Section 29 Notice

Advertisement calling creditors to lodge claims within 30 days–3 months after Letters of Executorship.

Section 35 Notice

Advertisement stating that the Liquidation & Distribution Account lies open for inspection for at least 21 days.

Liquidation & Distribution Account (L&D)

Statement of assets, liabilities, inheritance distribution and administration costs prepared by the executor.

Redistribution Agreement

Written pact among heirs exchanging inheritances of equal value with Master’s approval (s14, Estates Act).

Collation (Collatio Bonorum)

Adjustment whereby descendants account for inter vivos benefits received so equality in distribution is restored.

Accrual System

Matrimonial property regime where spouses share the growth (accrual) of their estates at dissolution of marriage.

Accrual Claim

Financial claim by the spouse whose estate shows smaller accrual against the estate of the spouse with larger accrual.

Section 4(q) Estate Duty Act

Deduction allowing property left to the surviving spouse to be excluded from the dutiable estate.

Section 4A Abatement

R7 000 000 primary abatement deductible from the dutiable amount of estate duty; unused balance rolls over to spouse.

Estate Duty Rate

Tax on dutiable amount: 20 % up to R30 million and 25 % above that (20 % applied in lecture examples).

Master’s Fees

Administration fee on gross estate: R42 on first R17 000, then R6 per R2 000 or part, capped at R600.

Maintenance of Surviving Spouses Act 27 of 1990

Grants financially dependent surviving spouses a claim against the estate for reasonable maintenance.

Deceased Estate Bank Account

Separate account opened by executor once estate funds exceed R1 000 (s28, Estates Act).

Section 31 Late Claim

Allows creditors to submit claims after advertisement; they may pay costs caused by late filing.

Section 32 Inquiry

Procedure where Master or magistrate questions a claimant under oath when executor doubts a claim’s validity.

Die bloedige hand erf niet (Dutch)

Literal Dutch formulation of the maxim that a killer may not inherit from the victim.

Per Stirpes Representation

Descendants inherit the share their deceased parent would have received, divided equally among them.

Customary Marriage

Marriage concluded under customary law; parties treated as spouses for inheritance purposes (Recognition Act 120/1998).

Community of Property

Default marital regime where spouses share a single joint estate.

Out of Community of Property (without accrual)

Each spouse retains separate estates during and after marriage; no sharing of accrual.

Out of Community with Accrual

Spouses keep separate estates during marriage but share the growth (accrual) on dissolution.

Ususfructuary’s Obligations

Must preserve property substance, pay ordinary taxes and maintenance, and return property at the end of the right.

Substitute Beneficiary

Person named to take a bequest if the primary beneficiary cannot or does not inherit.

Simultaneous Death Clause

Provision treating two people as dying simultaneously to simplify succession where order of death is uncertain.

Section 18(3) Estate

Estate valued at R250 000 or less where Master may appoint a representative, avoiding full estate-administration formalities.

Testamentary Trust

Trust created in a will, activated on death, to hold assets for beneficiaries—often minors (though sometimes expressly avoided).

Collateral Descendant

Relative descended from a common ancestor but not directly (e.g., siblings, cousins).

Adopted Child’s Inheritance

Adoptee inherits from adoptive parents as a natural child and not from biological parents (s1(4)(e) Intestate Act).

Guardian

Person legally responsible for the care and property of a minor child, appointed in a will or by court.

Independent Executor Security Exemption

Testator may exempt a nominated executor from furnishing security to the Master.

Power of Assumption

Authority granted to an executor to appoint another person as co-executor without further Master approval.

Collateral Ascendant

Ancestor such as a parent or grandparent; in intestacy, they inherit only if no spouse or descendants survive.

Master’s Jurisdiction

Determined by deceased’s ordinary place of residence prior to death; once assumed, it remains.

Letters of Authority (s18(3))

Document appointing an estate representative in a small estate instead of Letters of Executorship.

Die Bloedige Hand Principle Statutory Application

Reflected in s1(7) Intestate Succession Act and s2C(2) Wills Act for testate succession.

Principal and Income Exclusion Clause

Will clause excluding inheritances and their income from any present or future matrimonial property system of a beneficiary.

Residuary Estate

Balance of the estate after settling liabilities, legacies and administration costs.

Collatio Mortis Causa

Alternative term for collation—bringing in lifetime advancements to equalise heirs.

Section 35(12)(c)(ii) Affidavit

Executor’s sworn statement confirming payment of creditors and distribution to heirs, filed after account finalisation.

Notice of Adiation

Document in which the surviving spouse formally accepts the massed estate and any limited interest.

Accrual Calculation

Determine each spouse’s net estate at dissolution, subtract initial values, divide difference; spouse with lesser accrual has a claim.

Commissioner of Oaths

Official authorised to administer oaths and certify documents, including marks or proxy signatures on wills.

Beneficiary Exclusion Clause

Will provision stating that an inheritance will not form part of any beneficiary’s community estate or accrual.

Small-Estate Threshold

Monetary limit (R250 000) under which the Master may appoint a representative instead of full executor.

Devolution

Legal passing of property from a deceased person to heirs, legatees or the state.