Journal articles 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.

AbstractFiliation among Muslims in India is governed by Muslim personal law, a largely uncodified corpus of key Islamic legal treatises that has subsequently been interpreted and applied through the Common Law frame of British colonial courts and the post-Independence Indian judicial system by virtue of the Muslim Personal Law (Shariat) Application Act 1937. Muslim personal law recognizes only legitimate filiation resulting from a valid or irregular marriage, barring illegitimate children from maintenance and intestate succession and prohibiting adoption. However, a number of legislative enactments have modified key aspects of the law of filiation among Muslims: shifting the presumption of legitimacy arising from a valid marriage to the time of the wedding, rather than the time of conception; invalidating the doctrine of dormant fetus; and lifting certain disabilities incurred from illegitimacy. Further, although adoption based on customary law is somewhat common in India and has been recognized by courts, its effect among Muslims has tended only to lift the bar to paternal succession and seldom creates filiation with the adoptive family. Notwithstanding, following the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 and its subsequent amendments, an optional secular legal framework for adoption is now available to Muslim prospective parents. The procedure set forth by the Act is nonetheless unwieldly and implementation faces the very practical difficulties of the state in managing and protecting the vast number of destitute and abandoned children in India, for the most part with an unknown filiation.

The institution of traditional leadership represents the early form of societal organisation. It embodies the preservation of culture, traditions, customs and values. This paper gives a brief exposition of the impact that the pre-colonial and colonial regimes had on the institution of traditional leadership. During the pre-colonial era, the institution of traditional leadership was a political and administrative centre of governance for traditional communities. The institution of traditional leadership was the form of government with the highest authority. The leadership monopoly of traditional leaders changed when the colonial authorities and rulers introduced their authority to the landscape of traditional governance. The introduction of apartheid legalised and institutionalised racial discrimination. As a result, the apartheid government created Bantustans based on the language and culture of a particular ethnic group. This paper asserts that the traditional authorities in the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei seemed to be used by the apartheid regime and were no longer accountable to their communities but to the apartheid regime. The Bantustans’ governments passed various pieces of legislation to control the institution of traditional leadership, exercised control over traditional leaders and allowed them minimal independence in their traditional role. The pattern of the disintegration of traditional leadership seemed to differ in Transkei, Bophuthatswana, Venda and Ciskei. The governments of these Bantustans used different political, constitutional and legal practices and methods to achieve this disintegration. The gradual disintegration and dislocation of the institution of traditional leadership in these four Bantustans led to the loss of valuable knowledge of the essence and relevance of the institution of traditional leadership. One of the reasons for this anomaly emanated from the fact that undemocratic structures of government were established, commonly known as traditional authorities. More often than not these traditional institutions were mere puppet institutions operating on behalf of the Bantustan regime, granted token or limited authority within the Bantustan in order to extend the control of the Bantustan government and to curb possible anti-apartheid and anti-Bantustan-system revolutionary activity within traditional areas. The advent of the post-apartheid government marked the demise of apartheid and the Bantustan system for traditional leaders and the beginning of a new struggle for the freedom of the traditional authorities. This paper highlights changes brought about by the new constitutional dispensation in the institution of traditional leadership. The author demonstrates that the primary objective of the democratic government of South Africa in this regard is to transform the institution of traditional leadership and re-create the institution completely in line with the values and principles of the 1996 Constitution and democracy. The post-apartheid order rejects the old order as far as it is sexist, racist, authoritarian and unequal in its treatment of persons. All of the rules, principles and doctrines of the institution of traditional leadership apply in the new dispensation only in so far as they are rules, principles and doctrines that would survive the scrutiny of the present society when measured against their compliance with the requirements of human dignity, equality and freedom. The government has enacted democratic legislation intended to change the institution of traditional leadership and make it consistent with the 1996 Constitution. The institution of traditional leadership is obliged to ensure full compliance with the constitutional values and other relevant national and provincial legislation. The right to equality, including the prohibition of discrimination based on gender and sex, has an important impact on the institution of traditional leadership. For example, under the new constitutional dispensation women may become traditional leaders in their traditional communities, which is contrary to the old and long observed African customary rule of male intestate succession, which excluded women from succession to the position of traditional leadership. One of the remarkable features of the transformation of traditional leadership in South Africa is that gender equality has been progressively advanced. The inclusion of women in traditional government structures adds democratic value and credibility to the institution of traditional leadership, which for many years remained essentially male-dominated. The doctrine of transformative constitutionalism is well established in South Africa.

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.

Despite this seemingly bright-line distinction between adopted and non-adopted children, the South African courts have in recent times shown an increased willingness to grant de facto adopted children some, if not all, the rights reserved for formally adopted children. The approach adopted by the judiciary in such cases has raised the question of whether, or to what extent, a doctrine of de facto adoption has been created in South Africa. If such a doctrine is found to exist, it would imply that the judiciary is increasingly inclined to treat de facto and de jure adopted children alike. The article investigates the various contexts within and the extent to which the courts have been willing to recognise de facto adoptions. Based on the trends apparent from the judgments in question, the article concludes that a doctrine of de facto adoption has evidently been created in the context of finding a duty of support. The application of such a doctrine in the context of customary law, adoptions and baby-swop cases are for different reasons found to be inappropriate, while the extension of such a doctrine on a case-by-case basis to find a right to intestate succession is regarded as worth considering and pursuing.