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Court case about “parent” in intestate succession – Wilsnach N.O. v M and Others [2020] ZAGPPHC 756; [2021] 1 All SA 600 (GP)

Wilsnach N.O. v M and Others [2020] ZAGPPHC 756; [2021] 1 All SA 600 (GP)

The deceased (M) was severely disabled due to complications at birth leading to a lack of oxygen to the brain during birth. A claim against the Gauteng Health department for medical negligence which led to M’s disabilities was settled out of court in an amount of R21m. Under a court order the amount was placed in trust for M and the applicant (W) was appointed as trustee. M died at the age of 5 years. During his short life, M had little by way of parental care from his natural parents, T and N (first and second respondent). T and N were never married and T did not contribute in any way to M’s care and played no role in M’s life after birth. M was mostly cared for by his maternal grandmother, E (third respondent), who at one stage resigned from her employment to enable her to care for M. At the time of death of M the trust property amounted to some R15m.

W brought the application for a declaratory order to determine mainly two issues:

  1. Who the intestate heirs of M should be;
  2. What the effect of an order of court granted in April 2018 that T’s parental rights be terminated under section 18 of the Children’s Act, 38 of 2005 (the CA) should be on T’s rights to inherit from M.

The court (Kollapen J) identified the interpretation of the meaning of the word “parent” as used in the Intestate Succession Act, 81 of 1987 (the ISA), as crucial in order to answer the first question. The court noted that the word is not defined in the ISA and referred to Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and quoted, amongst others, the following from paragraph 18 of that judgement:

“Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production.”

The court then looked at the meaning of parent in the CA and came to the conclusion that “parent” should be interpreted widely to include those who play the role of parent in a particular child’s life. The court held that E, as the grandmother, carried the burden of care and was also declared to hold parental rights in the order of April 2018 under the CA. N as mother, was criticised by the court for her lack of continuous care, but held to be a still a parent, while T was held not to be a parent based on his total absence and the fact that his parental rights have been terminated by the order of April 2018. Consequently, E and N were declared to be parents of M for purposes of the ISA, and therefore M’s sole heirs.


What strikes as odd in the judgement is that the court quotes the passage from the Endumeni case, but then ignores the context of the ISA and the structured rules around the generational approach followed in the ISA in determining the rules of intestate succession. Instead the court then jumps to a definition of “parent” in another act (the CA) with a totally different context and purpose and applies that definition to intestate succession. Although the result may perhaps be regarded as fair and just in the circumstances, it comes at the price of legal certainty in intestate succession. The same result could probably have been achieved by a claim against the estate by E for her direct costs and loss of income in resigning her employment to care for M, and an application to court to have T declared unworthy to inherit from M based on T’s total neglect of his son M.

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