Intestate Succession Act, 1987

This is the version of this Act as it was from 20 September 2010 to 2 April 2024. Read the latest available version.
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South Africa
Citation
Act 81 of 1987
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English
Type
Legislation
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South Africa

Intestate Succession Act, 1987

Act 81 of 1987

  1. [Amended by Law of Succession Amendment Act, 1992 (Act 43 of 1992) on 1 October 1992]
  2. [Amended by Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009 (Act 11 of 2009) on 20 September 2010]
(English text signed by the State President.)ACTTo regulate anew the law relating to intestate succession; and to provide for matters connected therewith.
BE IT ENACTED by the State President and the Parliament of the Republic of South Africa, as follows: —

1. Intestate succession

(1)If after the commencement of this Act a person (hereinafter referred to as the "deceased") dies intestate, either wholly or in part, and—
(a)is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate;
(b)is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate;
(c)is survived by a spouse as well as a descendant—
(i)such spouse shall inherit a child’s share of the intestate estate or so much of the intestate estate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette, whichever is the greater; and
(ii)such descendant shall inherit the residue (if any) of the intestate estate;
(d)is not survived by a spouse or descendant, but is survived—
(i)by both his parents, his parents shall inherit the intestate estate in equal shares; or
(ii)by one of his parents, the surviving parent shall inherit one half of the intestate estate and the descendants of the deceased parent the other half, and if there are no such descendants who have survived the deceased, the surviving parent shall inherit the in testate estate; or
(e)is not survived by a spouse or descendant or parent, but is survived—
(i)by—
(aa)descendants of his deceased mother who are related to the deceased through her only, as well as by descendants of his deceased father who are related to the deceased through him only; or
(bb)descendants of his deceased parents who are related to the deceased through both such parents; or
(cc)any of the descendants mentioned in subparagraph (aa), as well as by any of the descendants mentioned in subparagraph (bb),
the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased mother shall inherit one half of the estate and the descendants related to the deceased through the deceased father shall inherit the other half of the estate; or
(ii)only by descendants of one of the deceased parents of the deceased who are related to the deceased through such parent alone, such descendants shall inherit the intestate estate;
(f)is not survived by a spouse, descendant, parent, or a descendant of a parent, the other blood relation or blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.
(2)Notwithstanding the provisions of any law or the common or customary law, but subject to the provisions of this Act and sections 40(3) and 297(1)(f) of the Children's Act, 2005 (Act No. 38 of 2005), having been born out of wedlock shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation.[subsection (2) substituted by section 8 of Act 11 of 2009]
(3)A notice mentioned in subsection (1)(c)(i) shall not apply in respect of the intestate estate of a person who died before the date of that notice.
(4)In the application of this section—
(a)in relation to descendants of the deceased and descendants of a parent of the deceased, division of the estate shall take place per stirpes, and representation shall be allowed;
(b)"intestate estate" includes any part of an estate which does not devolve by virtue of a will;[paragraph (b) substituted by section 8 of Act 11 of 2009]
(c)[paragraph (c) deleted by section 14(a) of Act 43 of 1992];
(d)the degree of relationship between blood relations of the deceased and the deceased—
(i)in the direct line, shall be equal to the number of generations between the ancestor and the deceased or the descendant and the deceased (as the case maybe);
(ii)in the collateral line, shall be equal to the number of generations between the blood relations and the nearest common ancestor, plus the number of generations between such ancestor and the deceased;
(e)an adopted child shall be deemed—
(i)to be a descendant of his adoptive parent or parents;
(ii)not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child; and
(eA)A person referred to in paragraph (a) of the definition of 'descendant' contained in section 1 of the Reform of Customary Law of Succession and Regulation of Related Matters Act, 2009, shall be deemed—
(i)to be a descendant of the deceased person referred to in that paragraph;
(ii)not to be a descendant of his or her natural parent or parents, except in the case of a natural parent who is also the parent who accepted that person in accordance with customary law as his or her own child, as envisaged in the said definition, or was, at the time when the child was accepted, married to the parent who so accepted the child; and
[paragraph (eA) inserted by section 8 of Act 11 of 2009]
(f)a child’s portion, in relation to the intestate estate of the deceased, shall be calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased who have either survived him or have died before him but are survived by their descendants, plus one.
(5)If an adopted child in terms of subsection (4)(e) is deemed to be a descendant of his adoptive parent, or is deemed not to be a descendant of his natural parent, the adoptive parent concerned shall be deemed to be an ancestor of the child, or shall be deemed not to be an ancestor of the child, as the case may be.
(5A)If a person referred to in paragraph (a) of the definition of 'descendant' contained in section 1 of the Reform of Custornary Law of Succession and Regulation of Related Matters Act, 2009, is deemed to be a descendant of the deceased person referred to in that paragraph, or is deemed not to be a descendant of his or her natural parent, the deceased person shall be deemed to be an ancestor of the person referred to in that paragraph, or shall be deemed not to be an ancestor of that person, as the case may be.[subsection (5A) inserted by section 8 of Act 11 of 2009]
(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.[subsection (6) added by section 14(b) of Act 43 of 1992]
(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 testator and, if applicable, as if he was not so disqualified.[subsection (7) added by section 14(b) of Act 43 of 1992]

2. Repeal of laws

The laws specified in the Schedule are hereby repealed to the extent set out in the third column of the Schedule.

3. Short title and commencement

This Act shall be called the Intestate Succession Act, 1987, and shall come into operation on a date to be fixed by the State President by proclamation in the Gazette.

Schedule

Laws Repealed

No. and year of lawTitle, subject or headingExtent of repeal
The Political Ordinance of 1 April 1580 ("Groot Placaet-Boek", Part 1)"Ordonnantie van de Policien binnen Hollandt. "Sections 19 to 28, inclusive
Interpretation of 13 May 1594("Groot Placaet-Boek", Part 1)"Verklaringe van de Heeren Staten van Hollandt en de Wes-Vrieslandt op de Ordonnantie van de Successien. "The whole
Octrooi of 10 January 1661("Groot Placaet-Boek", Part 2)"Octroy, by haer Hoogh Mog: Verleent aende Oost-Indische Compagnie deser Landen op’t recht van de Successien ab intestato in Oost-Indien, ende op de reyse gints ende herwaerts."The Whole
Act No. 13 of 1934Succession Act, 1934The Whole
Act No. 93 of 1962General Law Further Amendment Act, 1962Section 15
Act No. 44 of 1982Succession Amendment Act, 1982The Whole
Act No. 88 of 1984Matrimonial Property Act, 1984Section 27
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History of this document

03 April 2024
Read this version
20 September 2010 this version
01 October 1992
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18 March 1988
14 October 1987
Read this version
30 September 1987
Assented to

Cited documents 3

Legislation 3
  1. Children's Act, 2005
  2. General Law Further Amendment Act, 1962
  3. Matrimonial Property Act, 1984

Documents citing this one 50

Gazette 13
  1. South Africa Government Gazette Legal Notices A dated 2017-04-07 number 40768 part 1
  2. South Africa Government Gazette Regulation Gazette dated 2014-11-24 number 38238
  3. South Africa Government Gazette dated 1941-09-19 number 2944
  4. South Africa Government Gazette dated 1943-07-30 number 3226
  5. South Africa Government Gazette dated 1992-04-15 number 13920
  6. South Africa Government Gazette dated 2006-09-21 number 29237
  7. South Africa Government Gazette dated 2009-04-21 number 32147
  8. South Africa Government Gazette dated 2011-01-21 number 33946
  9. South Africa Government Gazette dated 2015-08-28 number 39131
  10. South Africa Government Gazette dated 2020-04-03 number 43192 part 1
  11. South Africa Government Gazette dated 2020-12-11 number 43981 part 1
  12. South Africa Government Gazette dated 2021-05-04 number 44529
  13. South Africa Government Gazette dated 2021-05-11 number 44557
Judgment 37
  1. Bhe and Others v Khayelitsha Magistrate and Others ; Shibi v Sithole and Others ; South African Human Rights Commission and Another v President of Republic of South Africa and Another [2004] ZACC 17 (15 October 2004)
  2. Blom and Another v Brown and Others (345/2010) [2011] ZASCA 54 (31 March 2011)
  3. Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 (31 December 2021)
  4. DG and Another v W and Others (379/2006) [2007] ZASCA 87 (1 June 2007)
  5. Daniels v Campbell and Others [2004] ZACC 14 (11 March 2004)
  6. E B v E R and Others; K G v Minister of Home Affairs and Others (CCT 158/22; CCT 364/21) [2023] ZACC 32 (10 October 2023)
  7. Fourie and Another v Minister of Home Affairs and Another (232/2003) [2004] ZASCA 132 (30 November 2004)
  8. Gory v Kolver NO and Others [2006] ZACC 20 (23 November 2006)
  9. Harvey NO and Others v Crawford NO and Others (1016 of 2017) [2018] ZASCA 147 (17 October 2018)
  10. Kgwete v Makonko and Others (2022/010418) [2023] ZAGPJHC 892 (8 August 2023)
  11. Koyingana and Another v Koyingana and Others (842/2021) [2022] ZANCHC 29 (14 June 2022)
  12. L L v C H NO and Others (A18010/2023) [2023] ZAGPJHC 1510 (12 December 2023)
  13. Lambrakis v Santam Ltd (412/2000) [2002] ZASCA 16 (26 March 2002)
  14. Laubscher NO v Duplan and Another [2016] ZACC 44 (30 November 2016)
  15. MM obo GM v MEC for Department of Health, North West Province (782/2022) [2024] ZASCA 52 (18 April 2024)
  16. Magwabeni v Magwabeni and Others (29566/19) [2023] ZAGPJHC 72 (2 February 2023)
  17. Mahlaba v Dihlabeng Local Municipality and Others (779/2021) [2023] ZAFSHC 261 (30 November 2023)
  18. Mahlaba v Dihlabeng Local Municpality and Others (779/2021) [2023] ZAFSHC 232 (21 December 2023)
  19. Maqubela and Another v Master of Gauteng Local Division, Johannesburg and Others (40955/18) [2022] ZAGPJHC 858 (19 May 2022)
  20. Maqubela and Another v Master of Gauteng Local Division, Johannesburg and Others (40955/2018) [2022] ZAGPJHC 26 (19 May 2022)
  21. Modise v Master of the High Court of SA and Others (42772/19) [2021] ZAGPJHC 42 (4 November 2021)
  22. Molefe and Others v Executor: Estate of the Late Edgar Molefe and Others (4884/2021) [2022] ZAFSHC 105 (25 August 2022)
  23. Mthembu v Letsela and Another (71/1998) [2000] ZASCA 181 (30 May 2000)
  24. Ndlovu v Sekuba and Others (27945/22) [2024] ZAGPPHC 132 (30 January 2024)
  25. Nkomo and Others v Chaka and Others (010996/2023) [2024] ZAGPPHC 329 (27 March 2024)
  26. Nkomo and Others v Chaka and Others (010996/2023) [2024] ZAGPPHC 330 (27 March 2024)
  27. President of the RSA and Another v Women’s Legal Centre Trust and Others; Minister of Justice and Constitutional Development v Faro and Others; and Minister of Justice and Constitutional Development v Esau and Others (612/2019) [2020] ZASCA 177 (18 December 2020)
  28. SJ v SE and Another (2016/30298) [2018] ZAGPJHC 952 (24 April 2018)
  29. SJ v SE and Another (30298/2016) [2018] ZAGPJHC 709 (24 April 2018)
  30. Sampi v Ntsi and Another (A44/2022) [2022] ZAFSHC 142 (30 November 2022)
  31. Sono and Another v Master of The High Court Johannesburg and Others (2021/46542) [2023] ZAGPJHC 807 (23 June 2023)
  32. Strauss and Another v Strauss and Another; In Re: Strauss v Strauss and Others (2020/2236) [2023] ZAGPJHC 825 (21 July 2023)
  33. Tongoane and Others v National Minister for Agriculture and Land Affairs and Others [2010] ZACC 10 (11 May 2010)
  34. Tshabalala v Mbatha and Another (12525/16) [2021] ZAGPJHC 359 (23 November 2021)
  35. Van Den Heever N.N.O. and Another v Poulos N.O. and Others (43528/2015) [2023] ZAGPJHC 344 (18 April 2023)
  36. Volks NO v Robinson and Others [2005] ZACC 2 (21 February 2005)
  37. Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 (28 June 2022)