It often occurs that an heir of a deceased testator dies before or after the death of a testator, who died testate or intestate. The question begging an answer is what effect does the death have on the devolution of the inheritance of immovable property bequeathed or inherited by such heir.
Where the testator died testate or intestate and an heir predeceases the testator, the provisions of section 2C(2) of the Wills Act 7 of 1953 or section 1(6) of the Intestate Succession Act 81 of 1987, respectively, apply.
The referred to sections read as follows:
“Section 2C. Surviving spouse and descendants of certain persons entitled to benefits in terms of will.
(2) If a descendant of the testator, whether as a member of a class or otherwise, would have been entitled to a benefit in terms of the provisions of a will if he had been alive at the time of death of the testator, or had not been disqualified from inheriting, or had not after the testator’s death renounced his right to receive such a benefit, the descendants of that descendant shall, subject to the provisions of subsection (1), per stirpes be entitled to the benefit, unless the context of the will otherwise indicates.”
“Section 1. Intestate Succession
(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 deceased and, if applicable, as if he was not so disqualified.”
From the above it is abundantly clear that where an heir predeceases the testator, who died testate or intestate, representation by the descendants of such predeceased heir takes place, per stirpes. However, where an heir dies after the death of the testator, who died testate or intestate, the benefit accrues to the estate of such heir and not to the descendants of the heir, per stirpes.
More often than not the death of an heir occurs after the liquidation and distribution account has laid open for inspection. The mere fact that the approved liquidation and distribution account does not reveal that the estate of the heir is entitled to the inheritance, does not necessitate that an amended liquidation and distribution account must be drawn. When the immovable property is transferred from the estate of the testator, the causa of the deed of transfer must disclose that the property devolves upon the heirs, be it testate or intestate, and that the heir died after the testator. The vesting of the immovable property will then be in the estate or joint estate of the deceased heir. It goes without saying that such heir’s estate will have to be administered de novo.