The Applicable Law of Succession to a South African Domiciled Individual

A UK solicitor asked us to provide a certificate of applicable law regarding succession for a deceased individual domiciled in South Africa.

In the UK, when dealing with cross-border estates, it is often necessary to determine which country’s succession laws apply. A certificate of applicable law is typically a legal opinion or formal document confirming the relevant laws governing succession, particularly under private international law (conflict of laws) principles. This is often required for probate, estate administration, or litigation in UK courts when dealing with foreign estates.

South African Law Perspective:

South Africa follows the domicile principle for succession, meaning that:

• The deceased’s domicile at the time of death determines which succession laws apply to their estate.
• If the individual was domiciled in South Africa, then South African succession law (testate or intestate) will apply.
• A UK court or authority handling part of the deceased’s estate may need expert confirmation from a South African lawyer regarding which rules govern succession.

1. Applicable Law

South African private international law follows the doctrine of domicile in matters of succession. In terms of this doctrine, the succession to the estate of a deceased individual is governed by the law of their domicile at the time of death.

Accordingly, if the deceased was domiciled in South Africa at the time of their passing, the law applicable to their estate is South African succession law, irrespective of where the assets are situated.

2. Legal Framework

The primary legislative instruments governing succession in South Africa are:

• The Wills Act 7 of 1953, which prescribes the formal requirements for the execution of a valid will.
• The Intestate Succession Act 81 of 1987, which governs the distribution of estates where no valid will exists.
• The Administration of Estates Act 66 of 1965, which regulates the appointment of executors and the administration of deceased estates.
• The Maintenance of Surviving Spouses Act 27 of 1990, which allows surviving spouses to claim reasonable maintenance from the deceased’s estate if they are not adequately provided for.
• The Children's Act 38 of 2005, which affirms that minor children are entitled to inherit from a deceased parent under intestate succession.

South African courts have consistently upheld the domicile rule in succession matters. In Ex parte Spinazze and Another NNO 1985 (3) SA 650 (A), the court reaffirmed that South African law applies to the estates of South African domiciliaries, regardless of where their assets are located.

3. Testate Succession (Where a Valid Will Exists)

Where the deceased left a valid will, the estate will be administered in terms of the will’s provisions, subject to South African legal requirements for validity, as set out in sections 2(1)(a) and 2A of the Wills Act 7 of 1953. These include:

• The testator must have been at least 16 years old and had testamentary capacity at the time of execution.
• The will must have been signed by the testator in the presence of two competent witnesses.
• Any amendments to the will must comply with the requirements of the Wills Act.

Where disputes arise regarding testamentary capacity, the burden of proof generally falls on the party challenging the validity of the will.

4. Intestate Succession (Where No Valid Will Exists)

If the deceased died without a valid will, their estate is distributed according to the Intestate Succession Act 81 of 1987, which provides for the following order of inheritance:

• Surviving spouse(s) – If there is a surviving spouse, they inherit a child’s share or R250,000, whichever is greater.
• Children – If there is no surviving spouse, the children inherit equally. Adopted and extramarital children have the same rights as biological children.
• Parents and other blood relatives – If there are no descendants or spouses, the estate passes to the deceased’s parents or, failing that, to their closest blood relatives.

5. Executor Appointment and Estate Administration

The Master of the High Court is responsible for overseeing the administration of deceased estates in South Africa, in accordance with the Administration of Estates Act 66 of 1965.

• A Letter of Executorship must be obtained before administering the estate.
• The executor is responsible for collecting assets, paying debts, and distributing the estate according to the will or intestate succession laws.
• If disputes arise, they may be adjudicated by the High Court of South Africa.

6. Conclusion

Based on the deceased’s South African domicile, the law applicable to the succession of their estate is South African law. This means:

• If a valid will exists, the estate will be administered according to the testator’s wishes, subject to the legal framework outlined above.
• If no valid will exists, the estate will be distributed in accordance with the Intestate Succession Act 81 of 1987.
• The estate will be administered under the supervision of the Master of the High Court, with an appointed executor responsible for compliance with South African estate laws.

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