Exploring the Law of Succession

Exploring the Law of Succession: Studies National, Historical and Comparative

Kenneth G C Reid
Marius J de Waal
Reinhard Zimmermann
Copyright Date: 2007
Pages: 256
https://www.jstor.org/stable/10.3366/j.ctt1r2553
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  • Book Info
    Exploring the Law of Succession
    Book Description:

    Comparative and succession law in Scotland and South Africa, including a comparison with Dutch law.

    eISBN: 978-0-7486-3259-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-viii)
    Kenneth Reid, Marius de Waal and Reinhard Zimmermann
  4. List of Contributors
    (pp. ix-ix)
  5. List of Abbreviations
    (pp. x-xvi)
  6. Table of Cases
    (pp. xvii-xxvi)
  7. 1 A Comparative Overview
    (pp. 1-26)
    Marius J de Waal

    This book reviews selected topics in the law of succession from a comparative and, in some instances, a historical perspective. It seems well to begin, however, with an overview of some of the comparative work that has already been carried out. Not only will this provide an idea of the present state of comparative work in the law of succession, but it will also serve as a context within which the other chapters in the book can be situated.

    However, one cannot embark upon such an exercise without first asking a more fundamental question: what is the true nature of...

  8. 2 Compulsory Heirship in Roman Law
    (pp. 27-48)
    Reinhard Zimmermann

    All modern legal systems in Europe attempt to balance the moral precept of family solidarity with the principle of freedom of testation. But they do so in different ways.¹ In German law, for example, the closest relatives are given the right to claim a “compulsory portion” (Pflichtteil) of the estate.² The idea of a certain part of the estate having to go to the deceased’s closest relatives even against his wishes dates back to Roman law. Down to the end of the nineteenth century, the Roman rules were still applicable in those parts of Germany that were governed by the...

  9. 3 Succession Law in Scotland – a Historical Perspective
    (pp. 49-66)
    W David H Sellar

    This chapter aims to provide a historical context for the present law by setting out the main outlines of the law of succession in Scotland before the groundbreaking changes brought about in 1964 by the Succession (Scotland) Act. Before 1964 much of the law of succession was old, almost immemorially old, and in dire need of reform. This was particularly true of the law of intestate succession.¹ The template for the pre-1964 law had been laid down in the Middle Ages, by the fourteenth century at latest. The roots of that earlier succession law lay in the feudal law, largely...

  10. 4 Succession Law in South Africa – a Historical Perspective
    (pp. 67-77)
    François du Toit

    South Africa has been gifted a mixed legal system through the coalescence of principally Roman-Dutch law¹ – the South African common law to this day – with English law. The modern South African law of succession is but one product of these diverse influences. The significant interaction between Roman-Dutch and English law with regard to succession upon death can justifiably be regarded as a prime example of the interplay between Civil Law and Common Law within South African private law. This chapter highlights such interplay through an exposition of the historical development of some key features of the South African...

  11. 5 Freedom of Testation and the Ageing Testator
    (pp. 78-98)
    J C Sonnekus

    In Roman law, there was universal acceptance of the principle embedded in the maxim testamentum est voluntatis nostrae iusta sententia, de eo quod quis post mortem suam fieri velit.¹ This presupposed that a person’s legally-recognised last wishes would be honoured after his death even although he himself was no longer there to enforce them. There is, however, little discussion in the Roman texts from which the reason for this honouring of the last will can be ascertained, and even in modern times most lawyers seem to accept without a second thought that the last will of the deceased should be...

  12. 6 Testamentary Conditions and Public Policy
    (pp. 99-113)
    James Chalmers

    In the fourth place, In the event of the said Mrs Helen Kidd or Chalmers [the testator’s wife] surviving me as aforesaid and entering into a second marriage then the provision made in her favor under the Third head hereof shall thereupon cease and come to an end and in heir and place thereof I direct my Trustees to pay to her from the date of such second marriage a free yearly annuity of Ten pounds Sterling … On the death of the survivor of me and the said Mrs Helen Kidd or Chalmers, or on her entering into a...

  13. 7 Forfeiture Clauses and Events in Scots Law
    (pp. 114-140)
    Roderick R M Paisley

    Forfeiture clauses and events leading to disinheritance or the forfeiture of bequests are well known in the field of succession as the means by which entitlements are forfeited in accordance with the express provision of the testator or by law. This chapter examines the nature of these forfeiture clauses and forfeiture events in Scots law. As forfeiture has limited application to the rights of executors,¹ it will address forfeiture only in relation to beneficiaries’ rights.

    To understand forfeiture one requires an appreciation of the rights arising and passing on death and a familiarity with the law of vesting and the...

  14. 8 Revocation of Wills by Changed Circumstances
    (pp. 141-155)
    M C Schoeman-Malan

    Revocation of a will, which is the converse of the initial act of making, proceeds on the broad principle of freedom of testation.¹ The subject may be divided according to whether the revocation is voluntary or involuntary.

    Voluntary revocation is determined by the intention of the testator.² The basis of Roman and Roman-Dutch law was that voluntary revocation could be achieved, expressly or by implication, by a formal will or document³ as well as by destruction of the original will.⁴

    A will may also be revoked involuntarily, by operation of law, when certain circumstances occur.⁵ Involuntary revocation does not seem...

  15. 9 Fideicommissary Substitutions: Scots Law in Historical and Comparative Perspective
    (pp. 156-176)
    George L Gretton

    Fideicommissary substitution lies at the boundary between succession law and property law. It belongs to a European tradition that is both common and fragmented. Comparative study has been slight.¹ Indeed, even within national systems much of the history is obscure. The present essay looks at Scots law from a comparative and historical standpoint.

    The starting point itself is problematic. Does this institution even exist in Scotland? Open the books, and search the cases: you will find virtually no discussion of this institution.² Ask a Scots lawyer and he will not know even what you are talking about. So the answer...

  16. 10 The conditio si institutus sine liberis decesserit in Scots and South African law
    (pp. 177-192)
    Alan R Barr

    When George Bernard Shaw described England and America as two countries separated by a common language,¹ at least that common language was the principal tongue of the countries in question. One trouble with the conditio si institutus sine liberis decesserit is that it has retained its Latin title. This has perhaps led to a certain fuzziness about the meaning of the rule embodied in the phrase. “Sine liberis” means “without children” – and yet the whole point of the rule is that it directs what is to happen where the institute dies with children.

    The circumstances in which the rule...

  17. 11 The New Dutch Law of Succession
    (pp. 193-207)
    Sjef van Erp

    On 1 January 2003, after a long period of reflection and parliamentary debate, the new Dutch law of succession entered into force as Book 4 of the Civil Code.¹ It was accompanied by the new law on gifts in Book 7 (Special Contracts). As can be seen from the legislative history, it took more than thirty years after the enactment of Book 4 before the new law could enter into force.² Particular controversy had surrounded the position of the surviving spouse and children, especially in a situation where the surviving spouse remarries and the new husband or wife also has...

  18. 12 Revocability of Mutual Wills
    (pp. 208-225)
    Alexandra Braun

    Mutual wills have attracted little interest among legal scholars. Partly, no doubt, this is because only a few jurisdictions recognise their validity, and in some of these they have fallen out of fashion.¹ This is somewhat surprising since, in the past, mutual wills were in use almost all over Europe, especially in the northern regions, and they were widespread in a number of jurisdictions which consider them unlawful today. Developed by custom in the late Middle Ages, mutual wills were recognised as a valid legal instrument in the ius commune.² Until the age of codification, they represented a valuable device...

  19. 13 Succession Agreements in South African and Scots Law
    (pp. 226-246)
    Dale Hutchison

    A succession agreement (or pactum successorium) is an agreement that seeks to regulate the succession to a person’s estate (or an asset forming part of that person’s estate) on his or her death.¹ As such, it is an institution that occupies “a somewhat shadowy position between contract and testation”.²

    The agreement may seek to regulate succession either directly or indirectly. Almost all of the classic examples of pacta successoria fall into the latter category. Here the agreement seeks to affect the process of succession rather than to effect it.³ It does so by purporting to regulate the contents of a...

  20. Index
    (pp. 247-253)