Academic literature on the topic 'Customary intestate succession'

This article will concentrate on the development in the common law of succession and administration of estates versus the customary law of succession and inheritance as well as the winding up of estates pursuant to constitutional tendencies, case law, and statutory reform over the last ten years. The principles of customary law of succession and inheritance have become a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system of customary law. No distinction will, for purposes of succession, be made in future between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

After conducting research into the customary law of succession and considering the various arguments for and against reforming succession law, in 1982 the Law Development Commission published a report which favoured reform and which contained a draft bill dealing with testate and intestate succession, and with family provision. Now two laws have been enacted, the one governing wills and the administration of testate estates, the other governing intestacy and the administration of intestate estates. Although there are obvious similarities between the draft bill and the new laws, there are also significant differences. It is not only that the draft bill did not deal with the administration of estates, but that several of its key provisions relating to wills and intestacy have been modified or abandoned.

Legal scholars, and activist in recent times had continued to advocate for equal rights of children irrespective of their gender on issues of succession or inheritance rights. The problem with gender-based discrimination are more palpable when a deceased die intestate and the principles of native law and custom regulating succession to the deceased intestate estate are fully activated. Most often, statistics have shown that female gender are discriminated against in most of the communities in Nigeria. Female children suffer the same fate under Esan customary law, because of the application of the rule of primogeniture that regulate inheritance and succession. Widows’ also are not excluded from discriminatory practises. This article seeks to examine critically the disinheritance of women either as daughters or as a widow under Esan customary law and advocate for a paradigm shift to bring its application in tandem with the Constitution. KEYWORD. Succession under Esan Customary Law, the Rule of Primogeniture and disinheritance of women.

Four interrelated reforms in the private law of Ghana were promulgated by the ruling Provisional National Defence Council (P.N.D.C.) on 14 June, 1985: the Intestate Succession Law, 1985 (P.N.D.C.L. Ill); the Customary Marriage and Divorce (Registration) Law, 1985 (P.N.D.C.L. 112); the Administration of Estates (Amendment) Law, 1985 (P.N.D.C.L. 113); and the Head of Family (Accountability) Law, 1985 (P.N.D.C.L. 114). The Intestate Succession Law radically changes the law of inheritance, and constitutes the most extensive legislative reform ever made in the private law of Ghana. The Administration of Estates (Amendment) Law is a minor consequential enactment. The other two Laws are directed primarily to other issues, but bear on the Intestate Succession Law in minor aspects which will be mentioned later.This comment does not seek to provide a detailed textual analysis of the Law, but merely to consider its provenance and general significance in the development of Ghanaian property law.

On 14 June, 1985, the Provisional National Defence Council of Ghana promulgated a series of laws designed to give better security for widows and their children, provide an effective machinery for the registration of customary marriage and divorce and render heads of family statutorily accountable to their members. They are: Intestate Succession Law, Customary Marriage and Divorce Registration Law and Head of Family (Accountability) Law. There is no doubt that the enactment of these laws marks a significant turning point and a new concept of family property law, even though the impact of the laws is yet to permeate into the social fabric of the Ghanaian community as a whole.

This contribution discusses the ancient Egyptian testamentary disposition document as an arrangement made prior to death. It discusses from a legal perspective different documents used for this purpose. The purpose of a testamentary disposition was to make decisions about one’s assets before death. An attempt is made to indicate that the testamentary disposition document was used from very early in ancient Egyptian history and different documents were used as a will by the testator/testatrix. The purpose of the testamentary disposition was, essentially, to alter the customary intestate succession law. The initial emphasis and connection with religion diminished as different documents were used to make provision prior to death of what was to become of one’s estate. Studying these different testamentary dispositions, we may learn more about testate succession law in ancient Egypt.

The debate concerning the apparent conflict between equality (section 9 of theConstitution of the Republic of South Africa 108 of 1996) and culture (sections 30 and 31 of the 1996 Constitution) is ongoing. This debate, in many ways foreseen, was preempted by the Constitutional Court per Sachs J in Du Plessis and Others v de Klerk and Another 1996 3 SA 850 (CC), when he stated that " . . . sooner or later, the question of the relationship between the Constitution and customary or indigenous law will have to be confronted."The purpose of this note is to analyse the decisions of the courts, with reference to a discussion of the rules of customary intestate succession and the requirements for a valid customary marriage, and then to propose a possible different outcome which, if applied by the courts, would have been beneficial to all the parties involved. This then leads to a proposal of an alternative remedy to the postulated problem.

Succession law in Kenya has developed from pre-independence where an array of regimes determined inheritance depending on whom they applied to, to an age where a single legislation was made to resolve this multiplicity; the Law of Succession Act. Since then, a new Constitution has been promulgated and the old one repealed. There are certain areas of the Act that resemble the latter more than the former. One such area is that of intestacy. More specifically, the position taken on the one-sided determination of the life interest of a widow upon remarriage. This study tackles this issue and finds that Sections 35(1) and 36(1) are indeed contrary to the entitlement of rights in Article 45(3) guaranteeing equal rights to parties within a marriage. It further advances the argument that this inconsistency has its possible origins in African Customary law and owes its longevity to a foregone constitutional era. The recommendation offered is an amendment to the Act aimed at equalising the parties to a marriage by ensuring parity in the duration of the life interest. In addressing itself on these issues, a synthesis of literature review, case review, legislative review and a key analysis of constitutional preparatory documents is used.

AbstractRoman law has always had a moderate influence on Dutch customary law. The reception of Roman law can be found mainly in the Dutch provinces of Holland, Zeeland, Utrecht, and most of all in Friesland. This was manifested inter alia by the reception of canonic testamentary law and Justinianic intestate succession law into the reformed statutes of certain provinces and cities in the Early modern period. In some cases even a reception of the Edict unde vir et uxor can be found, e.g. in the Dutch provinces of Groningen (1601, 1618), Drenthe (1712) and in the northern part of Limburg (upper Guelders, 1620). But generally speaking this Edict's claim to fame is limited to a select group of renowned 17th century Dutch jurists, who mentioned it in their scholarly works.

The title of this thesis is: The Customary Law of Intestate Succession. The African customary law relating to intestate succession has always been known to discriminate against women. The thesis therefore focuses on the customary law of intestate succession in the countries of South Africa, Ghana and Swaziland and the inroads they have made in improving the rights of women in this discriminatory field of African customary law. This thesis consists of six chapters. Chapter 1 introduces the reader to the topic of the research. It highlights the organisation of the intended research which comprises: a statement of the problem, the legal framework, research methodology and a summary of the chapter. Chapter 2 defines the general terms and concepts used in the customary law of intestate succession. This facilitates an understanding of the general principles comprising the body of law known as the customary law of intestate succession and lays the foundation for the country specific issues that are investigated in the following chapters. Chapter 3 discusses the recognition, application and development of the customary law of intestate succession in the country of South Africa. Chapter 4 considers the rules and laws of the customary law of intestate succession in the West African country of Ghana. Chapter 5 explains the current rules and laws of the customary law of intestate succession prevailing in the Kingdom of Swaziland. Finally, chapter 6 brings the thesis to a meaningful end, by criticizing the approaches adopted by the countries of South Africa, Ghana and Swaziland in improving the rights of women as far as the customary law of intestate succession is concerned. The chapter also presents various recommendations for improving the rights of women in this discriminatory field of the law.
Public, Constitutional, & International
LL.D.

Text in English
This study indicates the strong link between the belief in the afterlife and the inception of testamentary dispositions in ancient Egypt. To understand law, and specifically succession law, the importance of religion must be understood. Religion was embedded in society. One of the most important principles of religion was maat, which formed the basis for law. The living and dead formed part of the same community. The belief in the afterlife implied an immortality, an eternal continuation of life. There was a moral relationship between the dead and living and the deceased was dependent on sustenance after death. There was an obligation for the family to sustain the deceased, but this piety diminished and a need arose to make arrangements for sustenance prior to death. This led to the inception of the testamentary disposition document. The purpose of succession law is to maintain and strengthen the socio-economic structure in society and it therefore fulfils a social function. At the heart is the nuclear family. In ancient Egypt two systems of succession law developed: customary intestate succession and testate succession (by way of testamentary disposition). Different types of documents were used in ancient Egypt to serve the purpose of a testamentary disposition, such as the pious foundation and the imyt-pr. Important concepts and elements of succession law from the Old, Middle and New Kingdoms are identified and discussed. These include fideicommissum, trusts, usufruct, habitatio, legacies, the importance to indicate ownership of property, etc. The testamentary disposition documents of ancient Egypt must be one of the earliest examples of testate succession law. The Egyptian testamentary disposition, with its concepts and elements of succession law, was established centuries before Rome and Roman law were established. The resemblance to our modern-day wills and testaments through our Roman testate succession law heritage is remarkable.
Classics and World Languages
D. Litt. et Phil. (Ancient Near Eastern Studies)

The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal. Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him. However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes. The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law.
Public, Constitutional, & International Law
LLD (International and Constitutional Law)