UNIVERSITY OF ZIMBABWE
DEPARTMENT OF LEGAL UNDERGRADUATE PROGRAMMES
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Course
: LAW OF SUCCESION (LB 009)
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The principle whose application is being sought to be invoked by Mr Bill is called collation1.
Collation has been defined at length by Cobbert et al2 as a principle which applies both in
testamentary and intestate succession which exerts on the descendants who wish to share
as heirs in an ascendant’s estate an incumbent duty of account to the estate for certain gifts
or advances received from, or debts incurred to, their ascendant during his lifetime. It has
been held that the basis for the doctrine of collation is the presumption that a parent
intended that there will be equality in the distribution of his estate to his children3. Thus,
collation is an obligation imposed by law on all descendants who wish to share as heirs in
the estate of their ancestor either by will or on intestacy, of accounting to the estate for any
advances, or any gifts received or debts incurred to the ancestor during his lifetime4
In the case of Estate Van Noorden v Estate Van Noorden 1916 AD 175 Juta JP held at 178
that the principle upon which collation is based is the equitable distribution of the inheritance
among the heirs of the deceased. Therefore, the property subject to collation I divisible only
among the heirs of the deceased. At page 185 of the cyclostyled judgement Innes CJ held
that:
For it was a feature of collation, as understood by Roman lawyers, that the heir claiming the
inheritance should bring in assets which otherwise he would be under no obligation to restore.
Whereas a debt, whether due by an heir or by anyone else, must be discharged in all events.
The weight of Roman-Dutch authority, however is in favour of the view that collation does not
cease to operate in respect of advances merely because they happen also to be debts…if a
parent has lent a sum of money to his son, and upon the bankruptcy of the latter, has joined
with the other creditors in accepting a composition, then the son upon the death of his father
must bring into collation not only the amount of the composition, but the full total of the loan.
This is a very strong case; and although Pothier is dealing with the custom of Paris, the
conclusion arrived at is based upon the general principle of equality which underlies the
doctrine of collation, and which does not cease to be applicable merely because the advance
happens to take the form of a loan.
Thus, in the case of the occurrence that a son is indebted to his father, he would be liable to
collate that debt to the estate of his deceased father. This is because by advancing the debt
to him, Roman-Dutch law regards such as a preference over the other heirs, and thus the
principle of equitable distribution, which is the basis of the doctrine of collation, would have
been disturbed. Even if the debt may have prescribed by lapse of time or extinguished as
was held in Estate Van Noorden v Estate Van Noorden (supra), or has been discharged by
1
“collation bonorum, inbring”
M. M. Cobertt et al, The Law of Succession in South Africa (1980) p17
3
H. J Erasmus and M. J De Waal, The South African Law of Succession (1989) p17 par27
4
Thesnaar v Die Meester 1997 (3) SA 169 (C)
2
the insolvency of the debtor heir and his subsequent rehabilitation. Harry is a debtor to the
estate and Mr Bill is under an obligation to recover from him the money that he owed his
father for the benefit of the creditors of the estate as well as the other heirs5. It does not
matter that Harry later on diverted the funds which he had borrowed from his father for other
purposes besides establishing his business as a gold buyer. The fact that they are funds
which were borrowed from his deceased father means that he unduly benefits from the
estate at the expense of other heirs of Mr Bean if he were to not collate the funds. It follows
that the only funds which are not subject to collation are the monies spent on Harry’s
maintenance, his education or a simple and unconditional gift. This exception is also subject
to the fact that such expenditure on the education, gift or general maintenance was not
substantial in relation to Mr Bean’s means and disproportionate to what Harry’s siblings have
received6
Harry is under the legal obligation to collate because he is a descendant heir to the estate of
his father. This is so because it is recognized under the principles of collation that
descendants alone can collate if they would have been heirs ab intestato but for the
existence of a will7. The only way in which Harry would escape the liability to collate would
be if he refuses to adiate his share of the inheritance. Another instance in which he would
not have been liable to collate was going to be if Mr Bean had specifically dispensed
collation in terms of a will or when Harry’s other three siblings have waived their right to
collation by Harry.
Additionally, Harry is obliged to collate because the property he received from his father in
the form of a loan falls under the ambit of property which is subject to collation. It has been
emphasized that property which has been given to the descendant as a portion of his
inheritance, to start him in trade or business as what happened to Harry is subject to
collation since it was of a substantial nature resulting in inequitable treatment so far as the
other children are concerned. The debt arose out of a contract and as was upheld in the
case of Dison NO v Hoffman NO 1979 (4) SA 1004 (A) at 1032 hence should be collated by
Harry since he is now a debtor of Mr Bean’s estate. Accordingly, Harry as an heir cannot
enforce legal remedies to claim his share of the inheritance as long as he refuses to collate8.
The persons entitled to insist on Harry collating are his siblings who also happen to be the
descendants and Harry’s co-heirs to Mr Bean’s estate. The rationale behind this set up is
that only persons who would themselves be under a legal duty to collate are entitled to insist
5
Francois Du Bois et al, Wille’s Principles of South African Law (2007) p676
De Vos v Van De Merwe [1996] 4 All SA 82 (N) at 86
7
Voet 37.6.2
8
Francois Du Bois et al, Wille’s Principles of South African Law (2007) p675
6
on collation and share in the benefit thereof. The computation of the collation is a simple
mathematical concept. In this case, the US$40 000 which Harry borrowed from his father will
be added to the inheritance of US$960 000 which is available for inheritance by the heirs.
The new total of US$1 000 000 will then be divided among all the four heirs with each being
entitled to US$250 000. What will then happen is that in order to avoid prejudicing the other
heirs who do not owe the ancestor’s estate, since the available sum is $960 000 the US$40
000 which Harry owes his father’s estate will then be deducted from his inheritance of the
provisional sum of US$250 000 leaving him with US$210 000 whilst all the other heirs
maintain their share of US$250 000 each.
In conclusion, collation applies in this case because the US$40 000 which Harry borrowed
from his deceased father was a loan and not a gift or money for his education or
maintenance. Thus, the other heirs are entitled to him paying back that money to the estate
or if he fails to pay back the money it will be deducted from his inheritance thus entitling him
to a share of the sum of US$210 000 whilst the other heirs inherit US$250 000 each.
BIBLIOGRAPHY

Corbett. M. M; Hahlo. H. R & G.Y.S Hofmeyer, The Law of Succession in South
Africa, (1980) Juta & Co

Du Bois. F, Bradfield. G, Himonga. C, Hutchison. D, Lehmann. K, le Roux. R,
Paleker. M, Pope. A, van der Merwe. C. G & Visser. D, Wille’s Principles of South
African Law, 9th Edition 2007 (Juta & Co, Cape Town)

Erasmus. H. J & de Waal. M. J, The South African Law of Succession, (1989)
Butterworths South Africa

Voet. J, Commentarius 37
1 407 words