Nasciturus fiction – Inheritance for an unborn child
14 Feb 2022
Since the start of the Covid-19 pandemic, many South Africans have been forced to become more aware of their own mortality. As a result, they have had to start making profound choices about their future and think more about the well-being and future of their children.
To provide for the necessary protection of their children’s futures, many set out to have a last will and testament drawn up. This is easy to do when one already has children. What if your wife is pregnant with your unborn child or your daughter with your unborn grandchild? How will the interests of this child be protected if you pass before he/she is born?
The law of succession in terms of an unborn child
The rules that dictate how a person’s estate is devolved are set out in the South African law of succession. These rules include who may inherit, what can be inherited, and the different duties and obligations in terms of a deceased’s estate. However, going back to the initial question, how will the interests of a child be protected if you pass before he/she is born?
South African law states that a beneficiary should be alive or conceived on the day of a testator’s death. Since the transfer of rights is a requirement for succession and an unborn child cannot inherit or bear rights, what happens to the bequest? The bequest is held over and vests once the child is born alive. This is in terms of the common law concept of nasciturus fiction.
What is nasciturus fiction?
Nasciturus fiction is the common law principle in which a child who is born alive and conceived prior to a testator’s death is considered to have obtained rights from the moment he/she was conceived. Therefore, a conceived yet unborn child is not regarded as a legal subject; however, this principle caters for the eventuality that the child will become a legal subject. The nasciturus fiction states that an unborn child has the required legal personality to inherit.
In conclusion, an unborn child has the ability to inherit in terms of testate succession where there is a last will and testament and intestate succession where there is no will if the principle of nasciturus fiction is applied, provided that the requirements are met. It is essential to make sure that when considering the protection of your unborn child or grandchild’s future in terms of the South African law of succession, you are aware of your rights, the rights of the unborn child and what is required by the law. Consult with a legal professional before attempting to start any process or responding to any process yourself.
Contact an attorney at SchoemanLaw for your legal needs!
Written by Cheralco Worship, Candidate Attorney at Schoemanlaw Inc.
See also:(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)