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3 VARIATIONS ON THE ORDER OF SUCCESSION: DISINHERITANCE, DISTRIBUTIONS OF PROPERTY INTER VIVOS

For a wide variety of reasons it may become necessary to depart from the usual rules of intestate succession. A prospective heir may be too young or may be incapable of performing the duties expected of the head of a household; certain deserving children might need more financial support than others. In the common law provision can be made for these eventualities by will. While this option is not available in customary law, most (if not all) systems allow some variation on the strict order of succession.

In the first place, an heir may be disinherited, provided an acceptable reason exists (such as obvious incompetence or persistent disobedience). The head of a family would be obliged to call a meeting of the family to announce his intention and have the matter debated.^[9] The effect of the family's decision is to exclude the heir and to institute the person next in order of succession.

In the second place, a man may, prior to his death, allocate property to various sons (or houses) in order to ensure a fairer distribution of the estate when he dies. Again, a family meeting must be called at which the distribution is announced. While this type of declaration is backed by a belief in the power of a deceased's shade to vindicate his wishes, his instructions will not be obeyed if they are unreasonable or seriously upset an heir's prospects.

Neither the disinheritance nor the distribution procedure resembles testate succession. Under the common law individuals may dispose of whatever portions of their estates they like to heirs of their choice. Testators need give no reason for their decisions and they are not accountable to their families.^[10] To prevent fraud and undue influence on the testator, the law merely requires compliance with certain formalities for drawing up a valid will.

Should the courts continue to enforce the disinheritance and distribution procedures as distinctively customary methods for varying the rules of intestate succession (or should only the common-law will be recognized)? Should these procedures be subject to any form of regulation?

[9] A report of this meeting should then be sent to the local traditional ruler. Alternatively, the heir could be summoned before a traditional authority's court, where complaints against him may be investigated.

[10] Although their freedom is now curtailed by the Maintenance of Surviving Spouses Act 27 of 1990.