A comparative analysis of the position of descendants where a deceased dies intestate and is survived by a spouse or spouses

Abstract

The order of intestate succession in South Africa is governed by the Intestate Succession Act 81 of 1987. Section 1(1)(c)(i) of this Act stipulates that if a deceased is survived by a spouse or spouses as well as descendants, the spouse shall receive either a child’s share or an amount determined by the Minister of Justice, which is currently fixed at R250 000.00. The purpose of this study is to determine whether the prescribed fixed amount leads to the preferential treatment of the surviving spouse, sometimes to the detriment of the descendants. This study shows that the majority of estates lodged with the Master of the High Court are intestate, as the available statistics indicate that less than 25% of deceased estates are administered in terms of a will. The available statistics also indicate that the net worth of the majority of South Africans are worth less than R250 000.00, which leads to the conclusion that the descendants are completely excluded in the majority of intestate estates where the deceased was also survived by a spouse or spouses. The importance of this study is supported by section 28(1)(b) and (2) of the Constitution of the Republic of South Africa, 1996 which states that children have a right to care and the best interest of a child is of utmost importance in all matters concerning the child. This study also seeks to formulate a possible solution for the problem created by the minimum fixed amount awarded to the surviving spouse or spouses, through a comparative analysis between the South African law of intestate succession and the law of intestate succession in the Canadian province of Quebec. Quebec was chosen for this study because it consists of a mixed legal system, similar to South Africa, and Quebec’s modern laws of intestate succession makes provision for both the surviving spouse as well as the descendants. This study focuses on the historic development of the law of intestate succession in both South Africa and Quebec. The purpose of this study is first to determine what lead to the enactment of the Intestate Succession Act and secondly to determine whether Quebec’s laws on intestate succession could provide a possible solution and if so, whether these laws could easily be transplanted in South Africa. The comparative analysis indicates that South Africa and Quebec share many similarities in both the foundation and historic development of the laws of intestate succession, which suggests that certain of Quebec’s laws could easily be transplanted to South Africa’s laws.