Groundbreaking case law impacting estate planning

A number of groundbreaking cases have recently been decided (during the latter part of 2020) and are therefore fresh from the press!  These could impact your outlook of estate planning and the principles established are important to keep in mind in order to make informed decisions about your estate.

Firstly, a section of the Intestate Succession Act which prevents opposite sex life partners from inheriting their partner's estate upon the latter's death was declared unconstitutional by the High Court.

Secondly, another precedent-setting judgment was penned by Gauteng High Court Judge Jody Kollapen. The case focused on the interpretation to be given to the term "parent" in the Intestate Succession Act. The matter before the court was a dispute over who should inherit a substantial estate, about R15 million, of a child who had cerebral palsy and died aged five. The child's estate comprised a payout from the Department of Health for future care as a result of medical negligence during his birth, and three people laid claim to the estate: the child’s biological father, his biological mother, and his maternal grandmother. Their claims, Judge Kollapen said, triggered an important discussion as to the meaning and context of what is understood by the idea of parenting and parenthood.

The outcome was certainly not what one would have expected simply by referring to the Intestate Succession Act, but clearly demonstrates how a court can give effect to the law in a just and equitable manner.

Lastly, in what has been hailed a landmark victory for the recognition of Muslim marriages, the Supreme Court of Appeal ruled that the Marriage Act 25 of 1961 and the Divorce Act 70 of 1979, are inconsistent with the Constitution, and gave the President and Cabinet, together with Parliament, 24 months to remedy the “defects” by either amending existing legislation, or passing new legislation, in order to ensure the recognition of Muslim marriages as valid marriages.

All of these cases naturally hold substantial implications for anyone involved in estate planning and administration.

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