e. If the nasciturus is to inherit a sum of money and the nasciturus dies shortly after birth, this would mean that the legal heirs of the nasciturus would inherit the sum of money inherited from the nasciturus. In this case, nasciturus` parents would inherit. Obviously, there is no benefit for nasciturus and a benefit only for parents. Nasciturus fiction does not apply. However, if the nasciturus inherits a large sum of money, as indicated above, and this sum of money is sufficient to support the child, and the parents are unable to support the child, this inheritance can be used for the maintenance of the child. It is clear that it is then both the nasciturus and the parents (the 3rd parts) who will benefit from this fiction. wikistudent/Unisa The principles of our law are flexible enough to extend nasciturus fiction to the realm of crime and that a child is indeed entitled to a prenatal injury. In summary, an unborn child has the capacity to inherit in terms of succession if there has been a will, and testamentary succession if there is no will, if the principle of fiction nasciturus is applied, provided that the conditions for the application of the principle are met. Therefore, it is important to ensure that when considering the protection of your unborn child`s or grandchild`s future in relation to South African inheritance law, you are aware of your rights, the rights of the unborn child and the legal requirements. Therefore, consult a lawyer before attempting to file a lawsuit or responding to a lawsuit yourself. South African law states that the beneficiary must still be alive or pregnant on the day of the testator`s death. Given that the transfer of rights is a prerequisite for succession and that an unborn child cannot inherit or bear rights, what happens to this legacy? The inheritance is retained and highlighted as soon as the child is born alive.
This is related to the common law concept of nasciturus fiction. It is important for students to note that although nasciturus fiction has been applied only to a limited extent in common law, today its application has been greatly expanded and is used to protect ALL INTERESTS. OR it becomes certain that NO PERSON evolved from the nasciturus. If a pregnant woman divorces her father before the birth of the child, the court may include a child support clause in the divorce decree. – This is not a true application of nasciturus fiction, but a practical way to avoid legal proceedings at a later date. In South African law, fiction nasciturus has been applied in the following areas of law: The court ruled that the child, once born alive, had a claim for maintenance for loss of maintenance against that person. The nasciturus fiction should therefore be applied, which means that the legal situation has been suspended until the child However, the intention of the testator is not always clear. To this end, the intention must be determined in accordance with the rules of inheritance law. The law protects these potential interests of the unborn child, i.e.: nasciturus, by using a fiction that the fetus is considered born at the time of conception if it benefits the fetus, provided that the child is later born alive.
o Since our tort law does not require that the wrongful act and the damage caused by it occur simultaneously, it is therefore not necessary to rely on the fiction nasciturus in tort. o Under certain conditions, nasciturus fiction can be used to grant a nasciturus a right to the loss of maintenance after birth against a third person (i.e. other than the parents). In short, whenever a situation arises in which it would be to the advantage of the nasciturus if it had already been born, the law protects its POTENTIAL INTERESTS by implementing the fiction that the nasciturus is considered born at the time of conception, whenever it is to its advantage. The rules that dictate how a person`s estate is transferred after his or her death are set out in the South African Succession Act. These rules include who can inherit, what they can inherit and what various duties and obligations they will have in relation to the deceased`s estate. However, let us return to the original question. How would that child`s interests be protected if you died before birth? wikistudent/Unisa It is important for students to note that if the application of nasciturus fiction is to benefit both a 3rd person, it must benefit both the 3rd person and the child, and cannot be only for the benefit of the 3rd person. p.
25 Guide Students should remember that fiction is not fact. – It is an imaginary set of circumstances and creates a presumption that is not based on facts i. When applying nasciturus fiction, the unborn child is considered a LIVING PERSON, although it has not yet been born. If, in a concrete case, it turns out that the nasciturus, if it had already been born, would have had certain rights or rights, the legal situation remains in limbo until the testator specifically leaves the property to A, B and C, specifying , whereas D has already been conceived at the time of his death but has not yet been born, D cannot inherit if he is born alive later. Only the beneficiaries explicitly mentioned in the will will inherit, because this is clearly what the testator wanted. Definition: A nasciturus is a child conceived but unborn. o In Chisholm v. ERPM, the Court extended the application of the nasciturus fiction to cases where an offence had been committed against nasciturus. NOTE THIS fiction Nasciturus is the principle of customary law, according to which it is assumed that a child born alive and conceived before the death of the testator acquired rights from the moment of conception.
Therefore, an unborn child is not considered a legal person; However, this principle in our law takes into account the case where the child becomes a legal person when a child conceived at the time of birth and born alive thereafter is favoured. The fiction nasciturus asserts that the unborn child has the legal personality necessary to inherit. Estate, both intestate and tétat, and alimony deal with what is called. e. A testator leaves his estate to “my grandchildren”. C, who was not yet born at the time of the grandfather`s death but was already pregnant, will also inherit. The fiction nasciturus is called. As a result, the interests of the nasciturus are kept in limbo until the birth of that child, and then at birth, the child receives those interests. If it were based on nasciturus fiction, the child would be deemed to have been born at the time of conception and the father would therefore have to pay alimony from that date. This case gives us a clear example of how the courts are prepared to protect the interests of the nasciturus.
Page 13 TB Therefore, a testator who wishes to exclude children born after his death must clearly indicate this in his will. (b) SUCCESSION OF STATES (EX Parte Boedel Steenkamp Fallbuch p. 3) As a result, BEGOTTEN and NON-BEGOTTEN persons are now treated in the same way with regard to The question arises as to whether a foetus that has been killed by the culpable act of a 3. A party is injured as a result of a crime while still in the womb and later with a We have seen that the LEGAL PERSONALITY OF A PERSON begins at birth, so the FETUS received but to be born is not a legal entity and as such can not have rights, duties and abilities. CT Page 14 o In the above case, the father of one child was killed before birth as a result of an offence committed by another. In the ex parte Boedel Steenkamp case, the testator bequeathed the remainder of his estate to his daughter and children, “who are still alive at the time of my death”. At the time of the testator`s death, his daughter had two children. In other words, the situation would have been beneficial to the fetus if it had already been alive at that time. In his will, a testator may release a person from providing this security to the satisfaction of the master. The mother could not waive the right of her unborn child to claim maintenance from the father To determine whether an unborn child should inherit in a will, the testator`s will must be examined. In cases where the Fideicommissary has not yet been born, the Appeals Division in the Ex Parte Swanepoel case decided that the court could not give consent in that case because it could not be the ultimate guardian of a child who did not yet exist. TB Page 14 However, the legislature subsequently enacted section 33 § 1 of the General Act 62 of 1955, which provides that the High Court has the power to give its consent.