CASE NOTES

PER STIRPES PRINCIPLE VERSUS THE PER CAPITA PRINCIPLE IN INTESTATE SUCCESSION: A BRIEF OVERVIEW

Case Note on the Case of in Re Estate Late Bellinah Mhlanga HH 816-17 HC 4168/17 DR 143/13

BY ELIZABETH RUTSATE¹

1. INTRODUCTION

One area of law which has been a source of serious conflict particularly within families is the law of succession. Prior to delving deeper into the topic it is imperative that as a starting point the term ‘succession’ be defined. In defining the term ‘succession,’ Moses Bello J.P. a member of the Nigerian judiciary had this to say;

The Oxford Advanced Learner’s Dictionary,² defines succession in the context of this topic to mean the act of taking over an official position or title. According to Kerry R., succession is
concerned with the transfer or devolution of property on death.³ Succession therefore can be loosely defined to mean inheritance, the right to inherit, the order in which inheritance is bequeathed
and the condition precedent under which one can succeed another. The law of succession therefore is all about the transfer or devolution of property on the death of an owner to another,
his heir.⁴ The law is the rule by which such devolution occurs.⁵

Subsumed under the law of succession are two principles that have clearly dominated the manner in which estates have been administered across the majority of jurisdictions in the region and abroad whether

under general law, common or customary law. These are per stirpes and per capita principles of succession. What is most peculiar about the per stirpes principle is that it is applicable under both testate⁶ and intestate⁷ succession whether under general or customary law. Due to Zimbabwe’s dualist legal system, intestate succession occurs under both general and customary law. In this case note the focus is on the implications of the two principles under intestate succession under general law. Taking particular note of this all encompassing element of the per stirpes principle, Mwayera J in the In Re Estate Late Bellinah Mhlanga case made the following comments;

Although the Human and Herold cases supra referred to testate succession the principle of!per stirpes!inheritance is equally applicable in an intestate estate...From the foregoing discussion
it has been established that the!per stirpes!principle is part of the common law of Zimbabwe and is applicable under general law. It is also applicable under customary law with equal force.⁸

Intestate succession occurs in three situations namely (a) if a person upon death does not leave behind a valid will; (b) if the beneficiary appointed in a will predeceases the testator and the latter does not substitute the predeceased heir with another prior to his/her own subsequent death, then that part of the will, will be dealt with under the law of intestate succession; and (c) where a beneficiary or heir appointed in a will cannot or declines to take up the appointment, that portion of his/her inheritance will automatically fall under intestate succession. Under Roman Dutch common law, it is also possible to have an estate that falls under both testate and intestate succession. This happens where a person dies partly testate and partly intestate.

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1          Elizabeth Rutsate is a Senior Lecturer within the Private Law Dept. of the Faculty of Law at the University of Zimbabwe. Succession Law is one of the courses she lectures on at undergraduate level.

2        8th Edition, 2015 

3        Kerridge R. Parry & Kerry: The Law of Succession, 12th Ed (London, Sweet  & Maxwell 2009) Pg.1

4        Ibid

5        M. Bello JP, Principles and Practice of Succession under Customary Law, 2015, p.1

6        Testate succession happens where a deceased person (testator) leaves behind a valid will stipulating how his/her estate will be distributed in strict accordance with their wishes as contained in their will. A testator can then indicate within
the will whether after their death they wish their estate to be distributed in accordance with per capita or per stirpes succession.

7        If a person dies without having written a will or if the will is declared invalid, the estate will be distributed on the basis of intestacy i.e. a state of having no valid will. The intestate law of succession refers to the!distribution!of assets in
a deceased’s estate whereby the deceased would have died without leaving any valid will. It will be the duty of the executor dative in consultation with the Master of the High Court to decide on the most suitable type of intestate succession under the prevailing circumstances.

8                      At page 6 of the unreported High Court judgment (both pdf and word versions)