INTRODUCTION

A succession agreement (or pactum successorium) is an agreement that seeks to regulate the succession to a person's estate (or an asset forming part of that person's estate) on his or her death. As such, it is an institution that occupies “a somewhat shadowy position between contract and testation”.

The agreement may seek to regulate succession either directly or indirectly. Almost all of the classic examples of pacta successoria fall into the latter category. Here the agreement seeks to affect the process of succession rather than to effect it. It does so by purporting to regulate the contents of a will. For example, the parties to the agreement might agree to appoint each other reciprocally as heir or legatee under their respective wills; or one party may promise to bequeath a particular asset to another by way of legacy; or a party may promise not to revoke a legacy, or not to make a will at all.

In its direct form, the pactum successorium is more ambitious: it bypasses the will altogether and seeks itself to effect the succession by contract. An example of such an agreement would be where two parties directly and reciprocally appoint each other as heir in terms of their agreement. More generally, it might perhaps be said that any agreement purporting to effect a post-mortem disposition of an asset falls into this category.