Du Toit, FrancoisSmith, BradleyFaber, James Thomas2021-09-102021-09-102020-03http://hdl.handle.net/11660/11267The South African law of succession, as part of private law, more specifically the law of patrimony, operates on the premise of the subjective law theory. A legal subject – as the bearer of subjective rights – has certain entitlements (powers) bestowed on him/her by each of these subjective rights, including the entitlement to dispose of assets. The legal subject may exercise the entitlement to dispose of assets in accordance with the act of disposal – in the guise of a juristic act – which is made possible through the capacities possessed by legal subjects, in particular legal capacity and the capacity to act. The constitutionally founded public policy demands that the act of disposal be performed freely, which freedom – as manifestation of private autonomy – is constitutionally embedded. In the law of succession, it is important to distinguish the act of disposal both from other testamentary acts as potentially included in the contents of a will (for example the act of revocation) as well as from other acts in the will-making process (for example the necessary execution acts in order to comply with the formality requirements) in order to best address the prevailing conceptual confusion, particularly the confusion pertaining to the intention of the testator (testator’s intention) and consequently also the concept will as such. The intention of the testator can only be explained on a theoretically sound basis in accordance with a suggested ‘conduct model’ in respect of the continuous process of making a will in order to show that testator’s intention is a compounded, multilateral concept, that consists of different forms and facets of intention. For example, the dispositive intention (dispositive will) should first be formed before expression can be given to it through a statement of intention as the relevant act of disposal. The conduct model viewpoint can be contrasted with the traditional view that a will is the result of the once-off presence of a number of set requirements (the so-called ‘requirements model’). In terms of the conduct model viewpoint, a will is the result of a will-making process in which a number of specific acts, with specific accompanying forms of intention, have been performed by different parties in order to make a will. The place and roll of, as well as the interaction between, the different ‘requirements’ can only be correctly theoretically contextualised in accordance with this view. The law of succession primarily controls the devolution of assets at the moment of death and xiii in the context of the law of testate succession, this devolution occurs in accordance with the intention (will) of the testator, as expressed in the words of a valid will. The recognition of testamentary inheritance consequently means that a testator is free to make a lawful last expression of intention (declaration of wishes) in a will regarding the disposal of assets, if the testator has testamentary capacity. The recognition of freedom of testation – as a constitutionally recognised value – requires a free disposal of assets. The disposal of assets occurs by way of an act of testation, as the relevant juristic act in the law of succession. In order to qualify as an act of testation, a complete act of disposal is required in the sense that all the elements of a testamentary disposition should be present, as well as the necessary animus testandi (testation intention) as the intention that legal effect should be given to the dispositions at the moment of death. In the context of testate succession, a written statement of intention as embodied in a valid will, is required. The presence of the act of testation – as the manifestation of the dispositive intention and animus testandi – in a document, makes the document qualify as a will. Such a processual view emphasises that the execution of the testator’s intention – as embodied in an act of testation – occurs in three phases: the first phase entails the formation of the intention (inner will), the second phase entails the expression of the will and the third phase deals with the legal consequences that are attached to the intention of the testator after his/her death. The importance of addressing and resolving the conceptual confusion in the South African law of succession is self-evident. Nevertheless it is stressed with a view to the introduction of an intent doctrine in the South African law of succession to address the prevailing confusion. The necessity for conceptual clarity – especially in light of the conduct model and intent doctrine – is also underscored by the need to clearly understand the impact and application of the Constitution on the law of succession, with the further of establishing the concept of ‘constitutional law of succession’ in South African law.afAct of disposalAct of testationAnimus testandi (testation intention)Conceptual clarityConceptual confusionConduct modelDisposing of assets (disposition)Dispositive intentionExecution actsExpression of intentionFormation of intention (inner will)Freedom of testationIntent doctrineIntention of the testator (testator’s intention)Intention pertaining to the contents of a willJuristic act (legal act)Will (testament) and will-making processThesis (Ph.D. (Private Law))--University of the Free State, 2020 ThesisUniversity of the Free State