Authored By: Gugu Sarah
University of South Africa
Introduction
For centuries, in many South African indigenous communities, the idea of a “will” was not known or considered unnecessary. It was understood that the male head of the household controlled family property during his lifetime, and that on his death his eldest son would automatically assume responsibility for both the family’s property and its dependants. Daughters, wives, and younger sons were often excluded from inheritance. This system, known as male primogeniture, allowed property and authority to pass through patrilineal lines without written instructions or laws.
Customary law continues to regulate property and succession in South Africa. Traditionally, intestate succession under customary law did not involve a division of the estate among beneficiaries. Instead, the successor stepped into the deceased’s position and took control of both the property and the dependents who were under the deceased’s care. The successor inherited both the assets and the liabilities of the estate; where liabilities exceeded assets, the shortfall passed to the successor as well.[1] This rule was not applied uniformly across all customary groups. The death of the family head was therefore a significant event for the agnatic group, with the eldest son typically becoming the general successor, and where a man had more than one house, the eldest son of each house would become the house successor. The death of other family members did not affect the control of the group’s property, and succession was not an issue in those cases. The current law changed this landscape.
In Bhe v Khayelitsha Magistrate,[2] the Constitutional Court declared the rule of male primogeniture unconstitutional, and the Reform of Customary Law of Succession Act 11 of 2009,[3] now extends the Intestate Succession Act 81 of 1987[4] to intestate customary estates.
This article argues that testate succession, that is, dying with a valid will, is critical to protecting customary rights, giving effect to constitutional equality, and avoiding family disputes over property. The central question addressed is whether the encouragement of testation offers a more practical and equitable solution to the difficulties that continue to arise under intestate customary succession.
To answer this question, the article first distinguishes between testate and intestate succession. It then examines the law of intestate succession, with particular emphasis on the Intestate Succession Act 81 of 1987 and the constitutional challenge to the former customary rules in Bhe. It thereafter considers the framework governing testate succession under the Wills Act 7 of 1953,[5] before explaining why testate succession is of growing importance in a customary-law context. The article concludes by identifying the practical obstacles that still discourage testation in customary communities, and by making recommendations for improving access to wills.
Distinguishing Testate and Intestate Succession
When a person dies, they leave behind an estate that must be administered and distributed among their surviving family members or dependants. The law of succession governs how this distribution occurs, and it recognises two categories. Testate succession arises where a person dies leaving a valid will; the estate is then distributed in accordance with the testator’s wishes, subject to statutory formalities and limited public-policy constraints. Intestate succession arises where a person dies without a valid will, whether because none was made or because an existing will is invalid; the estate is then distributed according to a statutory formula rather than the deceased’s personal wishes. The distinction matters because it determines whose intentions the deceased’s or the legislature’s ultimately shape the fate of the estate.
Intestate succession
Determining which law applies to a person who dies intestate is complicated in South Africa. In the past, the law was very different for black South Africans.[6] Section 23(1) of the Black Administration Act 38 of 1927[7] was making it difficult for black people to make wills for their property, it reads:
“All movable property belonging to a Black and allotted by him or accruing under Black law and custom to any woman with whom he lived in a customary union, or to any house, shall upon his death devolve and be administered under Black law and custom.”
Section 1(4)(b) of the Intestate Succession Act 81 of 1987,[8] excluded estates governed by section 23 from the Act’s general application, and regulations issued under the Black Administration Act separately prescribed choice-of-law rules for persons living under customary law who died intestate.
The Bhe Case and the Constitutional Change
In Bhe v Khayelitsha Magistrate,[9] the Constitutional Court found that section 23 of the Black Administration Act was unconstitutional and could no longer be applied. The Court also set aside the customary rule that only the eldest son could inherit. Instead, the Court directed that the Intestate Succession Act 81 of 1987 should apply to customary estates as well. The Court’s reasoning was grounded in the constitutional values of equality and dignity, the old rule discriminated against women and girls, it treated women and daughters as incapable of owning or administering property. [10] Section 1(a) of the Constitution of the Republic of South Africa, 1996 reads:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values: (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms; and (b) Non-racialism and non-sexism…”[11]
Date of Vesting of Intestacy where a Will Fails
The complexities that can arise where testate and intestate succession intersect are illustrated by Harris v Assumed Administrator, Estate MacGregor,[12] The deceased made a valid will in 1941 and died in 1943. The will created a trust in favour of his wife, with capital ultimately payable to his children; when he dies without children, to his brother; and failing the brother, to the brother’s children. The deceased died childless, and in 1979 his brother also died childless while the widow was still alive. Because the will made no provision for this contingency, a partial intestacy of the trust capital arose. The dispute was whether intestacy vested on the deceased’s death in 1943, in which case the deceased’s mother would have inherited under the Intestate Succession Act 38 of 1934 or only in 1979, once it became certain that the relevant provisions of the will had failed, in which case the widow would be the sole heir. The court held that the failure of the will could only be established in 1979, and that the widow accordingly inherited. The case demonstrates that even a carefully drafted will cannot always anticipate every contingency, and that gaps left by a will may still trigger the operation of intestacy rules.[13]
Testate succession
When a person dies leaving a valid will, it is easy to distribute his/her estate, common law of succession applies however a testator may choose or specify in their will if common law or customary law should apply.
Testate succession is governed by the Wills Act 7 of 1953.[14] The Act sets out the formalities required for a valid will. A will must be in writing, signed by the testator, and signed by two competent witnesses in each other’s presence.[15] Anyone aged 16 or older with mental capacity can make a will.[16] The Wills Act also gives effect to the principle of freedom of testation, , allowing a testator to decide who will inherit their estate, and on what terms, allowing a testator to decide who will inherit their estate, and on what terms, including whether common law or customary law should govern the distribution. Section 2(3) of the Act provides relief where the formalities are not fully met. If a court is satisfied that a document was intended by the person concerned to be his or her will, it may accept it as valid despite the defect. This provision is significant in practice, since many people, including those living under customary law, draft informal wills without legal assistance.[17]
Following Bhe[18], a valid will has become one of the most straightforward mechanisms available to people living under customary law to avoid intestacy. Because the rule of male primogeniture no longer applies, a testator is now free to leave property to daughters, widows, and other family members who were historically excluded from inheritance.
The Growing Importance of Testate Succession in Customary Law
Testate succession is of increasing importance in the customary law context for three interrelated reasons. Firstly, although Bhe[19] abolished male primogeniture and extended the Intestate Succession Act 81 of 1987[20] to customary estates, the Act itself allocates only a fixed statutory share to each category of heir; it cannot account for the particular needs, contributions, or vulnerabilities of individual family members. A will allows a testator to tailor the distribution of the estate to the actual circumstances of the family
Secondly, testation offers direct protection to historically vulnerable heirs. Customary intestacy often left widows and daughters without adequate provision, particularly where they had contributed to the acquisition of family property without formal recognition. A will can specifically provide for a surviving spouse, daughters, or minor children, giving them a level of security that the old rules did not.
Thirdly, testate succession is better suited to the diversity of family forms that now exist in South Africa. Polygamous families, urban households, blended families formed through marriage, and households headed by women do not match the assumptions underlying traditional customary intestacy rules, which were designed around a single male head of household and a single line of succession. A will allows a testator to address the interests of multiple houses, spouses, or dependants expressly, reducing the potential for disputes between wives, children, and extended family members after death.
Conclusion and Recommendations
The abolition of male primogeniture in Bhe was a necessary and overdue constitutional correction, and the extension of the Intestate Succession Act 81 of 1987 to customary estates has gone some way toward remedying the historical exclusion of women and daughters from inheritance. However, intestacy even reformed intestacy remains a blunt instrument. It distributes estates according to a fixed statutory formula that cannot reflect the particular needs of individual families, the realities of polygamous or blended households, or the specific contributions of individual heirs. Testate succession, by contrast, allows a person to determine the fate of their own property, within the bounds of the law, in a manner that reformed intestacy simply cannot replicate.
For testation to become a genuine and accessible option for people living under customary law, several practical steps are needed.
Firstly, government and civil-society legal-aid initiatives should prioritise community based will-drafting clinics in rural and urban areas, staffed by paralegals or supervised law students, to reduce the cost and geographic barriers that currently discourage testation.
Secondly, greater public education is needed on section 2(3) of the Wills Act, so that people are not discouraged from attempting to record their wishes in writing for fear that a minor defect will render the document worthless.
Thirdly, traditional leaders and customary structures, who maintain considerable trust and influence within their communities, should be involved as partners in promoting testation, rather than treated as obstacles to it; this would help to dismiss the perception that wills are foreign to customary practice.
Reference(S):
Legislation
- Black Administration Act 38 of 1927 (South Africa)
- Constitution of the Republic of South Africa, 1996
- Intestate Succession Act 81 of 1987
- Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
- Wills Act 7 of 1953 (South Africa), ss 2(1)(a), 2(3), 4
Cases
- Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC);
- Harris v Assumed Administrator, Estate MacGregor [1990] (3) SA 37
Secondary sources
Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition.
[1] Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition
[2] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC)
[3] Reform of Customary Law of Succession Act 11 of 2009
[4] Intestate Succession Act 81 of 1987.
[5] Wills Act 7 of 1953
[6] Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition page 28
[7] Black Administration Act 38 of 1927
[8] Intestate Succession Act 81 of 1987 S 1(4)(b)
[9] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC)
[10] Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition page 28
[11] Constitution of the Republic of South Africa, 1996 s 1(a)(b)
[12] Harris v Assumed Administrator, Estate MacGregor [1990] (3) SA 37
[13] Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition page 44-45
[14] Wills Act 7 of 1953
[15] Wills Act 7 of 1953 s 2(1)(a)
[16] Section 4 Wills Act 7 of 1953
[17] Oxford University Press Southern Africa, The Law of succession in South Africa (2017) third edition page 87
[18]Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC)
[19] Bhe v Magistrate, Khayelitsha [2005] (1) SA 580 (CC)
[20]Intestate Succession Act 81 of 1987
