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family law

Can an unborn child inherit?

Legal subjectivity of a child begins at birth. In order to protect the interests of an unborn child two requirements must be met namely:

 

  1. The unborn child must already have been conceived at the time when its interests require protection;
  2. The child must subsequently be born alive and thereby become a legal subject. The second requirement fails if the child is still born.

 

It has successfully been invoked to allow an unborn child to acquire rights of succession. An unborn child can therefore inherit by testate or intestate succession, provided that he or she would have come into consideration by the testator as an heir.

 

In the matter Ex Parte Boedel Steenkamp 1962 (3) SA 954 (O) the testator bequeathed the residue of his estate in equal shares to his daughter and her children. At the time of the testator’s death his daughter had two children. At that stage, however, the daughter was pregnant and subsequently gave birth to a son. The executor applied that the court should establish whether only those grandchildren already born at the testator’s death could inherit or whether the child born after his death could also share in the inheritance. The court held that the son could have inherited.

 

In the interpretation of a Will the intention of the testator is decisive. If it is clear that the testator had not intended that an unborn child should inherit, this intention must be carried out. If the Will is silent about the unborn child and the child is born, he or she will inherit as if he or she had already been alive when the testator died.