INTRODUCTION

Under Section 1 (1) (d) of the Intestate Succession Act 81 of 1987 (“the Act”), when an unmarried and child free person dies, the parents of the deceased automatically become the beneficiaries of the deceased estate. There are, however, exceptions to this rule and one of these exceptions was dealt with in the judgment of Jacobs and Another v Adams and Another¹ which considered the duties owed to a child by their parent, under the Children’s Act 38 of 2005 (“Children’s Act”), which may negate a parent’s ability to benefit from their child’s deceased estate.

BACKGROUND OF THE JACOBS CASE

The deceased (Ivan) passed away intestate (without a last will and testament) at the age of 29 and had no descendants or spouse. Under section 1 (1)(d) of the Act, his parents would be regarded as the beneficiaries of his estate. The Act is prescriptive in its use of the term “parent”, which is applied with reference to biological connection or lineage, rather than the normative or responsibility-based meaning attributed to parenthood under the Children’s Act.

This means that under the Act, an absent parent would be entitled to inherit from the deceased’s estate irrespective of his or her failure to perform any parental rights or responsibilities. Unhappy with this situation, Jacobs (the deceased’s’ mother and executrix) applied to court to declare the deceased’s father, Adams, unworthy to inherit.

Jacobs submitted that Adams did not fulfil a fatherly role, nor did he perform any parental rights or responsibilities during the deceased’s lifetime. She further submitted that he had minimal contact with the deceased in infancy and was absent for almost 3 decades thereafter, effectively abandoning the deceased.

The court had to decide whether Adams could be excluded from receiving benefit from the deceased’s estate, either because he was not deemed as a parent in terms of law, or on the basis that he was regarded as unworthy to inherit.

In this matter, the court relied on the common law doctrine of indignus (being regarded as unworthy), which disqualifies an heir from benefiting if the heir has behaved in a manner that is reprehensible towards the deceased.

In motivation of his order, Snyckers AJ, stated the following:

1. based on the judgment of Pillay v Nagan², modern public policy can extend the concept of unworthiness to include extreme parental neglect;
2. the fact that Adams totally abandoned and/or neglected his son for his entire life constituted reprehensible conduct and would disqualify him from inheriting; and
3. Adams’ neglect was classified as deliberate parental abandonment.

Accordingly, based on the aforementioned reasoning Snyckers AJ found that Adams was unworthy to inherit. Consequently, Jacobs was deemed the sole heir of the deceased’s estate.

The Jacobs case demonstrates that while the Intestate Succession Act provides for a parent being able to benefit from the estate of their deceased child (in certain instances), it is also possible for them to be excluded from benefiting due to unworthiness being determined due to, inter alia, parental neglect. Extreme parental neglect is present when a parent disregards all of their parental rights and responsibilities as set out in the Children’s Act.

The administration of deceased estates is a complex and technical area of law. In the event of uncertainty, it is best to consult with and seek the advice of an attorney.