Private wills – as opposed to c – are considered sacrosanct, not only in South Africa but the world over.
As long as a person is of “sound mind” and not financially responsible for any minor children, they are legally entitled to pass on their assets to whoever they please and can disinherit on a whim.
But in a constitutional dispensation this is not an “absolute right” and must be balanced against equality, it has been argued in two matters that will now come before the Constitutional Court in February.
New Frame reports that one involves the inheritance rights of adult adoptees. In the other, five sisters have challenged a “males only” clause in their great-grandfather’s will.
Both challenges started in the Cape Town high court, but were unsuccessful. Then the Supreme Court of Appeal (SCA) failed to come to their aid. But the ConCourt has consolidated the two cases and directed the parties to submit arguments on why it should grant leave to appeal as well as the merits of both matters.
Dulcie’s adopted children
David Wilkinson and his sister Amanda Truter are from Port Elizabeth. Dulcie Harper, who was unable to have children, adopted them as newborns in the 1950s.
In 1953, before Harper adopted the babies, her father Louis John Druiff died. In a trust deed and will, Druiff left his estate in equal share to his four children and, on their deaths, their children.
Harper died in December 2017. She was the last of Druiff’s four children to die. Her death sparked a legal battle between Wilkinson and Truter and their cousins about who was entitled to inherit Harper’s share of her father’s estate.
The cousins, the natural children of Harper’s siblings, claimed that Wilkinson and Truter, as adopted children, were not entitled to the inheritance because Druiff only intended “blood descendents” to inherit.
Wilkinson and Truter argued that this interpretation was incorrect, resulted in unfair discrimination and was not in line with the “spirit, purpose and object of the bill of rights and the constitution”.
The appeal court judges were divided. Judge Mahube Betty Molemela said in a minority judgment that Druiff had used the term “any child”. There was no reason why this should lead to the conclusion that he intended to disinherit children adopted after his death. She noted that Druiff was aware, before his death, that Harper was considering adoption.
But the majority judgment, penned by judge Visvanathan Ponnan, highlighted the constitution’s protection of a person’s right to property, including the right to dispose of their assets as they wish upon their death.