The importance of legal adoption when it comes to inheriting is made clear in the following scenario: a child is taken in by an adult who for all intents and purposes become the child’s guardian. However, the ‘guardian’ never formally adopts the child and a few years later, the child’s natural parents perish in a tragic accident without having left Wills. Consequently, the natural parents will be considered to have died intestate and therefore will have their estates distributed according to the laws of intestate succession. However, the key question which will then arise is will the child be eligible to inherit from his natural parents?
According to section 1(4) of the Intestate Succession Act No. 81 of 1987 (“the Act”):
“(e) an adopted child shall be deemed—
(i) to be a descendant of his adoptive parent or parents;
(ii) not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child;”
The Act is clear that a child cannot inherit from both the adoptive and natural parents but rather can only be considered a child of one of them. It is therefore imperative to draw the distinction and designate the child as belonging either to the adoptive or the natural parents. While this section of the Act is forthright, it pertains to a scenario where the facts are black and white. As such, it is in the grey area such as in our scenario above where the legislation falls short and it makes looking into case law for guidance a necessity.
In the case of Flynn v Farr NO and Others [2009] JOL 23900 (C), Flynn sought to be recognised as the adopted son of his step-father Farr, despite never having been legally adopted by him. This was also in spite of Flynn’s deceased mother’s long-standing marriage to Farr and, as a result, when Farr died intestate Flynn did not inherit in terms of intestate succession.
In his very interesting judgment, Judge Davis went into the constructed distinction between factual and legal adoption and whether the ramifications derived from such a distinction were discriminatory. Judge Davis discussed two Constitutional Court cases which had been raised by the parties, namely Daniels v Campbell NO & Others as well as Volks NO v Robinson & Others.
In the Daniels case, Judge Davis highlighted the fact that the spouse of the Deceased was precluded from inheriting from the intestate estate because her Muslim marriage was not recognised. This lack of recognition emanated from a racist regime rather than from any legitimate reason. On the other hand, in Volks, the court held that the survivor’s claim for maintenance was unfounded as the survivor and the Deceased were in a life partnership rather than a traditional marriage. As such, the survivor could not be considered as a surviving spouse in terms of the Act. The apex court held that the option of marriage had been open to them but it had been their choice not to marry. Their choice did not make them any less important than a married couple but it did mean that they would not enjoy all of the privileges that married couples enjoy.
Such a distinction between these two Constitutional Court cases is highly important to our scenario. In the former case of Daniels, there was the issue of unconstitutionality. In the latter case of Volks, the choice was there but the option was never exercised. As extrapolated from these cases, Judge Davis held that Farr had the choice to adopt Flynn in the many years that they were living together as a family unit. However, Farr chose not to exercise that option and such a decision whether intentional or not, must be respected in the absence of arbitrariness and discrimination.
Moreover, Judge Davis further contemplated the cogent reasons provided by the National Department of Social Development. Such a system of factual adoptions could wreak havoc on child protection and record-keeping. Without having to go through the courts for legal adoption, the system could be abused with the result that children could potentially suffer.
While the Court was clear in its judgment, it is important to note that this seems to be a dynamic area of law. This is evident with the recent Western Cape High Court case of Jane Bwanya v Kaplan NO 2020 (12) BCLR 1446 (WCC) which ruled that preventing unmarried heterosexual life partners from inheriting in terms of intestate succession is unconstitutional. As such, it is felt that it is only a matter of time before a case similar to our scenario comes before the Constitutional Court.
The answer to the question in our scenario is that it seems highly unlikely that the child will be considered to be the adopted child of the ‘guardian’. Although it is altruistic and compassionate of the ‘guardian’ to look after the child, in the absence of legal adoption the ‘guardian’ will not be considered the adoptive parent. Consequently, the child will still be considered to be the child of his natural parents and will inherit from their respective intestate estates.
