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Wilsnach V TM Case Summary

Case summary for Wilsnach v TM

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25 views2 pages

Wilsnach V TM Case Summary

Case summary for Wilsnach v TM

Uploaded by

ntokozonhlapho266
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Wilsnach v TM

Right to inherit from child’s estate:


FACTS
The deceased (M) was severely disabled due to complications at birth
leading to a lack of oxygen to the brain during birth. A claim against the
Gauteng Health department for medical negligence which led to M’s
disabilities was settled out of court in an amount of R21m. Under a court
order the amount was placed in trust for M and the applicant (W) was
appointed as trustee. M died at the age of 5 years. During his short life, M
had little by way of parental care from his natural parents, T and N (first
and second respondent). T and N were never married and T did not
contribute in any way to M’s care and played no role in M’s life after birth.
M was mostly cared for by his maternal grandmother, E (third
respondent), who at one stage resigned from her employment to enable
her to care for M. At the time of death of M the trust property amounted to
some R15m.

Legal question

W brought the application for a declaratory order to determine mainly two


issues:

1. Who the intestate heirs of M should be;


2. What the effect of an order of court granted in April 2018 that T’s
parental rights be terminated under section 18 of the Children’s Act,
38 of 2005 (the CA) should be on T’s rights to inherit from M.

The court (Kollapen J) identified the interpretation of the meaning of the


word “parent” as used in the Intestate Succession Act, 81 of 1987 (the
ISA), as crucial in order to answer the first question. The court noted that
the word is not defined in the ISA and referred to Natal Joint Municipal
Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and quoted,
amongst others, the following from paragraph 18 of that judgement:

Can dad inherit?

To this extent and on the facts of this matter interpreting section 1(1)(d) of
the ISA to mean that reference to parent is limited to the biological or
natural parent is simply untenable, will not make sense, will not accord
with the understanding of what a parent is and will lead to absurd results.
It will mean that the first respondent will be regarded as a parent for the
purposes of the ISA but will not have been a parent for the purposes of the
Children’s Act. It will have the result that someone who has severed all
links with the child and who has made a conscious election not to be a
parent, will nevertheless retain parenthood for the sole purpose of
succession. It will mean conferring on the first respondent the legal
benefits that section 1 (1)(d) of the ISA contemplates and recognising him
as a parent notwithstanding that his conduct during the short and troubled
life of his child was characterised by his total failure to appreciate and
discharge his constitutional obligations and responsibilities towards his
child.

Can the grandmother inherit?

Court held that she could and the relevance to this conclusion by the
Court to the position of the third respondent, is that the third respondent,
based on the role she undertook, as mother, father, caregiver and
nurturer which is clear from the immense amount of love and care she
provided to M[....] undoubtedly makes her a parent not only according to
the bonis mores but even beyond that the parental
responsibilities and rights and guardianship she obtained in the
26 April 2018 Court order in regard to M[....]

“Whatever the nature of the document, consideration must be given to


the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose
to which it is directed and the material known to those responsible for its
production.”

The court then looked at the meaning of parent in the CA and came to the
conclusion that “parent” should be interpreted widely to include those
who play the role of parent in a particular child’s life. The court held that
E, as the grandmother, carried the burden of care and was also declared
to hold parental rights in the order of April 2018 under the CA. N as
mother, was criticised by the court for her lack of continuous care, but
held to be a still a parent, while T was held not to be a parent based on his
total absence and the fact that his parental rights have been terminated
by the order of April 2018. Consequently, E and N were declared to be
parents of M for purposes of the ISA, and therefore M’s sole heirs.

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