Ex Parte Boedel Steenkamp 1962 (3) Sa 954 (O)

The facts of the case are as follows:

The testator left the residue of his estate to his daughter and to the first generation “wat by datum

van dood in die lewe is”. The testator’s daughter was pregnant at the time of his (the testator’s)

death and subsequently gave birth to Paul Johannes.

The executor to the estate sought a declaratory order on the issue of whether only the children

born at the time of the testator’s death would inherit or if Paul Johannes, born after the death of

the testator, would also be able to inherit.

Curator ad litem for Gerda and Daniel Johannes (the two children already born) held that the

words “wat by datum van dood in die lewe is” is sufficient enough and without ambiguity to

exclude the unborn child from the estate.

Curator ad litem for Paul Johannes was of the opposite opinion stating that there is no evidence

that the testator wished to exclude the unborn child from his will.

The legal questions are:

1. Does the nasciturus have the legal capacity to inherit?

2. Is Paul Johannes (in ventre matris) entitled to a share of the estate?

Judge De Villiers R held that the nasciturus should be able to inherit by means of the nasciturus

fiction subject to being born alive and it being to the advantage of the nasciturus. He further held

that Paul Johannes is entitled to share in the estate of the testator in equal amounts to his mother,

brother and sister.

Judge De Villiers R referred to the decision of House of Lords in Elliot v Lord Joicey where the

court held that if the testator’s intentions are not clear, when words as “in lewe” or “gebore” are

used in conjunction with a specific time line and there is no other specific statement specifically

excluding the child in ventre matris it should be presumed that the testator had no intention of

excluding the child in ventre matris form his/her will.

*The South African Law of Persons fourth edition-Jacqueline Heaton