All natural or juristic persons, born or unborn, are competent to inherit either testate or intestate regardless of their legal capacity. In this article, we will be looking at natural persons.
Every natural person is capable of acquiring a vested right to an inheritance, this should not be confused with the right to enjoy an inheritance.
- A major beneficiary with sound mind and legal standing.
- Any beneficiary who is 18 years or more, is of sound mind (understanding one’s actions and reasonable knowledge of their surroundings), not insolvent and does not reject the inheritance.
- Minor beneficiary.
- A minor is any person who is below the age of 18 years.
- Such persons have the capacity to inherit but their ability to enjoy the inheritance is restricted.
- Inherited property will be administered for the benefit of the minor by the minor’s guardian with the office of the Master of the High Court exercising a supervisory function.
- Where no guardian is available, enjoyment of the property will be regulated by a court-appointed guardian or curator.
- Movable property: the minor acquires a vested right to the property when the deceased dies, but because the minor’s capacity to exercise all the rights of ownership in respect of the property is limited, the movable property concerned will, not be delivered to the minor but to the minor’s guardian who will have to ensure that the property is used for the minor’s benefit or safely kept for the minor’s future use.
- What if the inheritance is money?
- The money is not given to the minor, or the guardian but it is placed in the Guardian’s Fund, which is administered by the Master of the High Court [See section 43(2) of the Administration of Estates Act 66 of 1965].
- The minor’s guardian is permitted, from time to time, to withdraw money from the Guardian’s Fund to take care of the minor’s needs.
- Immovable property: the property is not transferred to a minor’s guardian but is registered in the minor’s name in the deeds registry.
- The property is administered by the minor’s guardian until the minor becomes a major.
- Nasciturus (or unborn).
- South African law recognises that an unborn child (referred to as a nasciturus in Latin) is capable of inheriting [See Ex parte Administrators Estate Asmall 1954 (1) PH G4 (N); Ex parte Boedel Steenkamp 1962 (3) SA954 (O)].
- This principle is known as nasciturus fiction and has the following requirements:
- The child must have been conceived at the time of the devolution of the benefit.
- The inheritance has to be to the advantage of the unborn child.
- The child has to be subsequently born alive.
- Illegitimate children.
- Under common law illegitimate children could only inherit under certain circumstances.
- That has been changed and illegitimate children are of the same status as legitimate ones [See Section 1(2) of the Intestate Succession Act 81 of 1987 and section 2D(1)(b) of the Wills Act 7 of 1953].
- Persons of unsound mind.
- These are persons who are not aware and / or do not understand their actions and consequences of same (and have been declared as such by court).
- Such persons have capacity to inherit, however, their inheritance is managed as if he or she were a minor.
- Someone who has been declared insolvent.
- They retain their capacity to inherit, but any property which he or she owns (including the inheritance – unless stipulated in the will that it should not form part) falls into the insolvent estate and must be administered by a trustee for the benefit of the creditors.
