Right to inherit from a child's estate

In South African law when a minor child dies intestate, the parent(s) of the child will inherit the estate of the child in accordance with the provisions of the Intestate Succession Act 81 of 1987. This would imply that the grandmother of a child will not be eligible to inherit as the entire estate would go to the parent(s) of the child.

However, this position was recently reviewed in the matter of Wilsnach NO v TM and Others [2021] 1 All SA 600 (GP), where a child, suffering from cerebral palsy caused through medical negligence, was awarded R21 million in damages. The father for all intents and purposes vanished from the life of the child shortly after his birth and was not involved in raising the child or paying for the maintenance of the child. The child was essentially raised by his mother and grandmother.

Upon the death of the child, it fell to the court to determine whether the father was allowed to inherit from the child’s intestate estate or whether the mother and grandmother were both entitled to inherit also.

The court held that the definition of the word ‘parent’ in the Intestate Succession Act does not require the parent to be the blood or biological parent of a child when it comes to inheriting intestate. Accordingly, as the father had absconded, he was effectively released from his parental responsibilities which fell to the mother and grandmother, essentially establishing them as the parents of the child and entitling them to inherit intestate in equal shares from the child’s estate.

In this matter, the first and second respondents were respectively the parents of a child born in 2013 and diagnosed with cerebral palsy. The child died in 2018. The second respondent and the child lived with the third respondent (the second respondent’s mother) who provided them with a home and took care of their basic needs.

On the child’s death, all three respondents laid claim to his estate. The first and second respondents based their claim on their status as parents, and the third respondent on her having been awarded parental rights and responsibilities by the court.

Kollapen J held that it had to be determined whether each of the respondents qualified as a parent for the purpose of inheriting as contemplated in s 1(1)(d) of the Intestate Succession Act 81 of 1987.

The first respondent had nothing to do with his child since birth, largely because of the child’s condition. He, therefore, at no time fulfilled his parental obligations in terms of the Children’s Act 38 of 2005. To then regard him as a parent in terms of the Intestate Succession Act would offend against the constitutional scheme on which that Act was founded. The court ruled that the first respondent did not meet the factual or legal requirements of parenthood and was not entitled to inherit from the estate of the child.

While the second respondent’s performance of her duties as mother was open to some question, she did care for the child in the first two years of his life. She was recognized as a parent in terms of both the Children’s Act and the Intestate Succession Act. The primary caregiver and dominant parental figure in the child’s life was the third respondent (the grandmother). The court described the pivotal role she played in the child’s life and concluded that she was a parent for the purpose of inheriting as contemplated in s 1(1)(d) of the Intestate Succession Act.

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