Nasciturus Fiction:

Introduction:

In order to have a discussion on the nasciturus fiction, legal personality and the law of succession in South Africa must be looked at. In this essay, how the nasciturus fiction and legal personality relate is looked at and whether or not the two concepts clash in terms of South African law.

The law of succession and legal personality in context:

The nasciturus fiction originates from the law of succession. The law of succession sets the rules that govern the distribution of a person’s estate after their death. The nasciturus fiction sets out to deal (but is not limited to) with this distribution should the recipient be an unborn child. This fiction exists as the law states only legal subjects are entitled to rights. A legal subject is defined as person or entity with rights and duties in terms of the law. By this definition an unborn child is not considered a legal subject and are therefore not entitled to any rights including inheritance.

Review and implications of the Steenkamp judgment:

The question is about whether an unborn can inherit is asked and answered in the Ex Parte Boedel Steenkamp case . The case deals with whether a child who was unborn (ventre matris) at the time of the death of the testator can inherit property. The testator – Paul Johannes Steenkamp – states that his daughter and her first generation children who are alive at the time of his death will inherit his estate in equal portions. The principles