Lize de la Harpe, Senior Legal Advisor: Regulatory Unit at Sanlam

Subject to certain exceptions, all persons may benefit under a will. Certain categories of persons, however, are under common law disqualified from taking benefits. One such category is being considered an unworthy person.

The maxim “de bloedige hand en neemt geen erf” (whereby an offender in law is prevented from taking a benefit under his victim’s will, and, if he died intestate, from succeeding ab intestate) has been part of our common law since Roman times.

Murder is not the only crime that leads to unworthiness. The Roman-Dutch writers mention numerous grounds upon which a beneficiary is considered unworthy to inherit. These grounds are also not static – the common law is constantly developing to include those grounds that presently offend the boni mores of society.

Although the principle has traditionally been associated with the law of succession, our courts have over the years widened its application to also preclude a wrongdoer from benefiting in other ways too. A court can thus declare someone unworthy to take any other benefit that falls outside the deceased estate as well.

The High Court recently delivered a landmark judgment regarding intestate succession and the doctrine of unworthiness. Let’s unpack.

Intestate Succession Act, 1987

The Intestate Succession Act, 1987 (ISA) governs the distribution of a deceased person’s estate when they pass away without a valid will. It establishes a strict hierarchy of who may inherit, starting with spouses and children and then moving down the family tree.

In terms of the ISA, the parents of the deceased will inherit the estate in equal shares if there are no surviving spouses or descendants.

Jacobs NO and Another v Adams and Another 2026 (2) SA 170 (GJ)

Jacobs and Adams had a brief relationship when Jacobs was eighteen. She fell pregnant with Ivan. Adams made a few payments to her before the pregnancy but showed limited interest (he was also absent at the birth). After the birth, in the first month, Adams gave Jacobs some nappies. He then essentially disappeared from their lives. When Ivan got hurt as a one-year-old, Adams visited him in hospital.

Apart from the few maintenance payments that had been dragged out of him in the first year, Adams paid nothing at all over the 29 years of Ivan’s life and was for all intents and purposes totally absent as far as the upbringing of Ivan was concerned. When Jacobs obtained employment (when Ivan was a year old), she gave up on chasing Adams for maintenance and raised Ivan with the help of her mother and family members. When Ivan was about six, Jacob entered into a relationship with Phillip McCarthy, who became a de facto father to Ivan.

Ivan passed away during July 2021 due to Covid 19. He had no spouse, no life partner, no children, no siblings and no dependants. At the time of his death his deceased estate totalled roughly R700 000.

Having no valid will, the provisions of the Intestate Succession Act, 1987 (ISA) must be applied in terms of which Jacobs and Adams, being Ivan’s surviving parents, would each inherit half of Ivan’s estate.

Jacobs, the executrix of her son’s estate, brought an application to the High Court seeking a declaratory order that Adams be declared ‘not to be a parent’ in terms of the ISA, as to Ivan’s estate, and that Jacobs in her personal capacity be declared the sole parent.

The court turned to the judgment in Wilsnach NO v TM and Others 2021 (3) SA 568 (GP) where the judge held that – based on the fact that the term “parent” was not defined in the ISA or in the Children’s Act – the term was capable of different meanings in different contexts. The term in the ISA must be interpreted in line with the Constitution and in particular the best interests of the child. Based on the facts, the court held that it would offend the entire constitutional scheme and not be in the best interests of the child for a father to be considered not to be a parent under the Children’s Act, but to be a parent under the ISA, despite having severed all links with the child and having made a conscious decision not to be a parent.

Turning to the facts at hand, the court highlighted that there is a fundamental difference between the concept of parenthood under the Children’s Act, on the one hand, and the notion of “parent” under the ISA, on the other:

• When it comes to “parents”, the Children’s Act deals with and regulates the rights and obligations normally associated with parenthood. Critically, “illegitimate” fathers have no parental rights under the Children’s Act, unless the relatively burdensome requirements of section 21 are met. In essence, the concept of “parent” in the Children’s Act refers to those who should act as parents, necessarily incorporating a default starting point with much room for normative adjustment. It focusses on what is best for the child.

• The, ISA, in turn is concerned with what happens to an estate when someone dies intestate. The concept of “parent” in the ISA is aimed at identifying the existence of a blood relative to determine the direction of the flow of estate assets. This act does not concern itself with the best interest of the child – it does not call for an assessment of which persons associated with the deceased are more, and which less, deserving of inheritance. Put differently, the rights and obligations governed by the Children’s Act by definition attract a greater degree of fluidity than the rules applicable to intestate succession do or should.

As such, the court held, the term “parent” under the ISA is incapable of being defined with reference to a normative assessment of the degree to which a person deserves the name, as held in Wilsnach. Adams thus qualifies as Ivan’s “parent” as contemplated in the ISA.

That, however, is not the end of the matter. The common law doctrine of indignus (which is an extension of the maxim de bloedige hand erft niet) deprives an intestate heir of the right to inherit if he or she is shown to be “unworthy” to inherit. Apart from a single visit to the hospital when Ivan was one year old, and a few sporadic maintenance payments dragged out of him through the Maintenance Court process in that first year, Adams had no involvement at all in Ivan’s life right from the very start, for the 29 years of Ivan’s life. Applying the indignus concept, the court declared Adams as unworthy to inherit in terms of the ISA.

Conclusion

The Jacobs-judgment sets a significant legal precedent for succession law. It establishes that parental rights and responsibilities are inextricably linked – a mere biological tie on its own does not guarantee inheritance when those ties are accompanied by a clear abandonment of parental duties.

ENDS