Right to inherit from a child's estate

13 Apr 2021 12:00 am by Merilyn Kader

Wilsnach NO v TM and Others [2021] 1 All SA 600 (GP), 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.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Right to inherit from child’s estate: In Wilsnach NO v TM and Others [2021] 1 All SA 600 (GP) 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 recognised 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 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.

The second and third respondents were to inherit in equal shares from the estate of the child.

Merilyn Rowena Kader
Legal Editor at LexisNexis