Editor LauraIn South Africa, the law does not automatically entitle an illegitimate child to claim inheritance from their biological parent. The law requires that the child must first prove that they are the rightful heir to the estate before they can inherit anything. This can be a difficult process, especially if the biological parent dies without leaving a will or if there is any dispute over the paternity of the child. However, it is possible for an illegitimate child to claim inheritance in South Africa if they are able to prove their relationship to the deceased.
The Position of an Illegitimate Child
“The position of an illegitimate child in South Africa is governed by the Recognition of Customary Marriages Act, which came into effect on 15 November 2000. The Act provides for the recognition of customary marriages entered into before or after the commencement of the Act, and for the registration of such marriages.”
In terms of the Act, a customary marriage must be entered into in accordance with the customs and traditions observed by the parties to the marriage. Illegitimate children born to such a marriage are therefore considered to be legitimate children of the marriage, and are entitled to all the rights and benefits that accrue to legitimate children under South African law. This includes inheritance rights.
Illegitimate children who were born before 15 November 2000, but whose parents subsequently married in accordance with the Recognition of Customary Marriages Act, are also considered to be legitimate children of that marriage. However, they will only be entitled to inherit from their parents if their parents die intestate (without having made a valid will). If their parents die testate (having made a valid will), then they will only inherit if they are specifically included as beneficiaries in their parent’s will.
Inheritance Claims by Illegitimate Children
Inheritance claims by illegitimate children in South Africa are governed by the Recognition of Customary Marriages Act. Under this Act, an illegitimate child has the same inheritance rights as a legitimate child, provided that the child’s parents were married to each other at the time of the child’s birth.
The courts have held that an illegitimate child does not have a right to inherit from his or her father if the father was not married to the child’s mother at the time of the child’s birth. However, an illegitimate child does have a right to inherit from his or her mother.
There are two ways in which an illegitimate child can claim inheritance from his or her mother: through intestate succession or through a will. Intestate succession is where a person dies without leaving a will, and their estate is distributed according to the laws of intestate succession. In South Africa, the intestate succession laws give preference to spouses and children, in that order. Therefore, if an illegitimate child’s mother dies intestate, the child will inherit from her estate ahead of her husband (provided he is still alive).
If an illegitimate child’s mother dies testate (leaves a will), then the child will only inherit if she has expressly included him or her in her will. It is important to note that, even if an illegitimate child is not expressly included in their mother’s will, they may still be able to challenge the will on the basis that they were unfairly excluded
The definition of an illegitimate child in South Africa
In South Africa, an illegitimate child is a child who is born to parents who are not married to each other. Illegitimate children have no legal rights to inherit from their parents. However, they may be able to claim inheritance through the courts if they can prove that their parent intended for them to inherit.
The law regarding illegitimate children and inheritance in South Africa
In South Africa, the law states that an illegitimate child has the same right to inherit from their parents as a legitimate child. This means that if one of your parents dies without leaving a will, you have the same right to inherit as your siblings.
However, if your parent dies with a will in place, you may only inherit if they specifically include you in the will. If you are not included in the will, you can still contest the will and try to prove that you should have been included.
If your other parent is still alive, you may also be able to inherit from them. The law states that an illegitimate child has the same right to inherit from their father as a legitimate child. However, this only applies if the father acknowledges paternity before he dies.
If you are an illegitimate child and want to claim inheritance, it is important to seek legal advice as soon as possible. An experienced lawyer can help you understand your rights and options under South African law.
The court’s approach to determining whether an illegitimate child can claim inheritance
In South Africa, the court’s approach to determining whether an illegitimate child can claim inheritance is based on the common law principle of “pater est quem nuptiae demonstrant” (“the father is he whom the marriage indicates”). This principle has been codified in section 2 of the Recognition of Customary Marriages Act, which states that “a customary marriage entered into before the commencement of this Act is valid if at the time of the marriage,
(a) the spouses were domiciled in an area where customary law applies;
(b) each spouse was above the age of 18 years;
(c) each spouse consented to be married to the other under customary law; and
(d) either –
(i) both spouses were unmarried; or
(ii) at least one spouse was divorced or widowed in accordance with customary law.”
The court has held that this provision applies equally to marriages entered into after the commencement of the Act. In addition, section 21(4) of the Act provides that a child born of such a marriage is legitimate.
Based on these provisions, it is clear that an illegitimate child cannot inherit from his or her father unless the father acknowledges paternity in accordance with customary law. The same would apply if the father was married under civil law; in such a case, paternity would have to be proven through DNA testing. It should be noted that section 25A of the
The factors the court will consider when determining whether an illegitimate child can claim inheritance
There are a number of factors that the court will take into account when determining whether an illegitimate child can claim inheritance in South Africa. These include:
– The degree of relationship between the child and the deceased.
– The nature and duration of the relationship between the child and the deceased.
– The intention of the deceased at the time of making their will.
– The financial circumstances of the parties involved.
– Any other relevant factors that the court may deem fit to consider.
In conclusion, an illegitimate child can claim inheritance in South Africa if their father acknowledges them as his heir in his will. If the father dies without a will, the child may still be able to claim a portion of the estate through intestate succession. However, it is always best to seek legal advice before taking any action.