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Devolution

24 November 2011

Where a deceased dies testate or intestate and certain of the testate or intestate heirs elect to renounce their right to the inheritance, the provisions of section 2C(1) and (2) of the Wills Act 7 of 1953 or section 1(6) and (7) of the Intestate Succession Act 81 of 1987, respectively, must be adhered to.

The relevant sections read as follows:

              “Section 2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.-

              (1) If any descendants of a testator, excluding a minor or a mentally ill descendant, who, together with the surviving spouse of the testator, is entitled to a benefit in terms of a will renounces his right to receive such benefit, such benefit shall vest in the surviving spouse.

 

              (2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpesbe entitled to the benefit, unless the context of the will otherwise indicates.

 

              “Section 1. Intestate Succession

              (6) If a descendant of a deceased, excluding a minor or mentally ill descendant, who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his right to receive such a benefit, such benefit shall vest in the surviving spouse.

              (7) If a person is disqualified from being an heir of the intestate estate of the deceased, or renounces his right to be such an heir, any benefit which he would have received if he had not been so disqualified or had not so renounced his right shall, subject to the provisions of subsection (6), devolve as if he had died immediately before the death of the deceased and, if applicable, as if he was not so disqualified.

 

Where, for example, A dies intestate and he leaves a wife and three children, and the children renounce their inheritance, the inheritance will devolve upon their mother (the wife) (see section 1(7) of the Intestate Succession Act). Similarly should A die testate and bequeath his estate to his wife and children, and the children elect to renounce their inheritance, such inheritance will devolve upon the wife (mother) (see section 2C(1) of the Wills Act.

However, where A dies intestate or testate and he only leaves children, and only some of the children renounce their inheritance, such renounced inheritance will only devolve on the remaining child, if the renounced heirs have not left any descendants who will represent such heirs (see section 1(7) of the Intestate Succession Act and section 2C(2) of the Wills Act, respectively. Such descendants will represent the renounced heirs, and division of the estate shall take place per stirpes.

Conclusion
It would appear that there exists a misconception that where an heir renounces his/her inheritance, it either devolves intestate, or devolves upon the remaining heirs. It is trusted that the above has shed more light on succession where renunciation occurs.

Allen West
Deeds Training
Pretoria

Reader Comments: 2
George Andre Raubenheimer 24/11/2011:

An examination of Section 2C(2) of the Wills Act reveals some errors which, I believe, could give rise to confusion.  As the section now reads, it appears that, barring contrary indications in the Will and the application of Section 2C(1) 1. the descendant beneficiary's descendants will inherit in his place if he predeceases the testator, even if he is disqualified or 2. If he was not disqualified from inheriting, even if he survives the testator, his descendants inherit in his place; or 3. If he survives the testator and he had not renounced his right, he will not inherit but his descendants will do so in his place.

I propose the following amendments: The word "or" before the words "had not been disqualified from inheriting" should be replaced by the word "and" and the word "not" in the third alternative before the words "after the testator's death" should be deleted so that the section should read:

"If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a Will if he had been alive at the time of death of the testator and had not been disqualified from inheriting, or had, after the testator's death, renounced his right to receive such a benefit , the descendants of that descendant shall, subject to the provisions of sub section (1), per stirpes be entitled to the benefit, unless the context of the Will otherwise indicates".

These will bring about what, I believe, the legislator intended i.e. that barring contrary indications in the Will and the application of Section 2C(1), if the descendant entitled to a benefit in terms of a Will is not a disqualified person and predeceases or if he had survived the testator and renounced his right to receive after the testator's death, then, in those two cases, his descendants will inherit in his place. If, of course, he survives the testator and is a disqualified person, he, in any event, has no benefit to renounce.

G A Raubenheimer

Krishna Naidoo 19/11/2013:

Subsection 7 of Intestate Succession concerning renunciation appears to be an unconditional clause. Can one then assume that an intestate heir (married COP) does not require spousal consent to renounce inheritance? No where in the Matrimonial Property Act is the issue of renunciation addressed.

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