Question from Alie, Do De Facto Children Have Rights to Claim Inheritance in South Africa?
Answer from AI:
In South Africa, the rights of a de facto child, or a child who has been treated as a biological child but was not legally adopted, to claim an inheritance can be complex. It’s important to understand that the law generally favors legally recognized relationships, such as those established through birth or legal adoption.
Legal Adoption vs. De Facto Parent-Child Relationship
In South Africa, the Children’s Act 38 of 2005 governs matters related to children’s rights, parental responsibilities, and adoption. According to this Act, only legally adopted children have the same rights as biological children, including the right to inherit from their adoptive parents. De facto children, who have not been legally adopted, may not have the same rights.
Intestate Succession and De Facto Children
The Intestate Succession Act 81 of 1987 governs the distribution of an estate when a person dies without a will. Under this Act, only legally recognized children (biological or adopted) are entitled to inherit. De facto children are not explicitly recognized under this Act.
Testate Succession and De Facto Children
If a person dies leaving a will (testate succession), the distribution of the estate is governed by the wishes of the deceased as expressed in the will. If a de facto child is named in the will, they may be able to inherit.
Legal Advice and Court Rulings
While the law may not explicitly recognize the rights of de facto children to inherit, there have been court cases where de facto children have successfully claimed an inheritance. These cases often hinge on proving that the deceased intended to provide for the de facto child. However, these cases can be complex and outcomes can vary.
It is strongly recommended that individuals in this situation seek legal advice. A legal professional can provide personalized advice based on the specifics of the case, and can guide you through the process of making a claim.
Resources
- The Children’s Act 38 of 2005 provides information on children’s rights and adoption in South Africa.
- The Intestate Succession Act 81 of 1987 outlines the rules for distribution of an estate when a person dies without a will.
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