Protecting Your Unborn Beneficiaries: The Nasciturus Fiction

The South African law relating to a deceased person’s estate, and who their beneficiaries will be, is set out by legislation. If a person dies testate, or having left a will, their beneficiaries will be named in the will and the guiding statute will be the Wills Act 7 of 1953. If a person dies intestate, or without leaving a valid will, their beneficiaries will be determined by the Intestate Succession Act 81 of 1987.

Whether or not a person leaves a will , the inheritance due to their beneficiaries will vest, or become a right of their beneficiaries, at the time of the deceased’s death. In South African law, the general rule is that a beneficiary must be alive at the time of vesting in order to be entitled to inherit. However, an exception to this is when there are beneficiaries that have not yet been born at the time of vesting.

The nasciturus fiction is a Latin principle that protects the inheritance of a child who is conceived before, but not yet born at the date of, the testator’s death. The right to inherit will vest in the unborn child from the time it is conceived and will be realized only if the child is born alive. It is known as the nasciturus fiction because an unborn child (the nascitrus) has no legal personality yet and therefore it is a fiction as we ‘pretend’ that the child has acquired a legal personality for the purpose of protecting its right to inherit.

You may wonder how this is possible – how can benefits from an estate be due to a person who has not yet been born? A common situation is where a testator (a person who makes a will) names all of their grandchildren as beneficiaries. For example, a clause in a will states ‘I bequeath 50% of my estate to my grandchildren in equal shares’. In this situation, the inheritance of a grandchild of the testator who is not yet born is protected by the nasciturus fiction. Another example is where a person dies without a will leaving a spouse and an unborn child. In this situation, both the spouse and the unborn child will be the intestate beneficiaries of the estate due to the nasciturus fiction protecting the unborn child’s inheritance.

To ensure that your will is in order and that the inheritance of your loved ones is protected legally and distributed in line with your wishes, contact us today at [email protected]  or visit our website at https://marshfidelity.wpenginepowered.com for assistance.

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