A father who abandoned his child declared unworthy to inherit from his deceased child's estate

A father who abandoned his child can in certain instances be prevented from inheriting from that child's intestate estate, provided the court is satisfied that it is in the child's best interest to exclude the parent due to the abandonment and based on the common law doctrine ofunworthiness.

The court will need to assess whether the father's actions were so detrimental to the child that they forfeited his right to inherit, especially if the mother or another caregiver fulfilled the primary parental role.

A woman "J" approached the court to declare that father of her late son was not to be regarded as a parent for purposes of her son's estate and that she be declared to be the sole parent. Her late son was 29 years old and one of the first victims of the Covid pandemic.

The court heard that he was raised by his mother and her extended family and later his mother's life partner took the role as his de facto father. He was the result of a brief relationship between his parents when his mother was 18 years old. Since his birth his father "A" disappeared from his life.

The father made a few sporadic payments of maintenance in the first year of the child's life but later stopped altogether and then exited the son's life completely thereafter. At the time of his death, the son had no spouse or life partner, no children and left an estate of approximately R716000.

When a person dies without leaving a will, the Intestate Succession Act ["ISA"] will then dictate who is entitled to inherit from the deceased's estate and these are blood relatives. Under the ISA the son's estate would have to be equally divided between the surviving parents [ being J and A]. On 21 August 2025, the court delivered its judgment.

The court looked at the word "parents" in both the Children's Act and in the Intestate Succession Act and said that whilst the Children's Act was based on normative parental roles and was all about what was best for the child, the Intestate Succession Act was aimed to identify a blood relative to see who was entitled to receive from the estate's assets and not at who was less or more deserving of inheritance.

Despite this position, the court also referred to the common law doctrine ofindignus, based on the maxim "de bloedige hand erft niet("the bloody hand does not inherit"), where an heir who was responsible for the death of the deceased, was not allowed to inherit. The court used the principle of indignus to determine whether the father was unworthy to inherit. It said the principle of indignus included other instances of unworthiness, beyond the killing the deceased, such as seriously wounding the deceased, or acting fraudulently in respect of the inheritance - often being complicit in an attempt to defraud heirs by forging a will. The judge was at pains to differentiate a complete and utter abandonment by a parent throughout the child's life, to what he termed " lesser forms of abandonment" .

Even though the judge noted some hesitancy to apply the concept ofindignus, he concluded that the circumstances justified using this doctrine of indignus to exclude the father from inheriting from his late son's estate and declared the mother to be the sole parent of the deceased child.

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