Notes: Who is a ‘parent’ for the purposes of the Intestate Succession Act? Wilsnach NO v TM

Abstract

In Wilsnach NO v TM 2021 (3) SA 568 (GP) the court radically reinterpreted the meaning of the term ‘parent’ for the purposes of intestate succession, thereby excluding an unmarried father from inheriting from his deceased child as a ‘parent’, and permitting the child’s grandmother to inherit as if she were the child’s ‘parent’. The court achieved this outcome by finding that the provisions of the Children’s Act 38 of 2005 must inform our understanding of who a ‘parent’ is for the purposes of the Intestate Succession Act 81 of 1987. The note critically evaluates this judgment in the light of the historical development of the rules of intestate succession and the history of the legislation, identifies problematic issues arising from the judgment, and suggests an alternative way in which the father’s perceived unsuitability as an heir may have been achieved.