summary of interest of the unborn child in the law of persons- chapter of interest of the unborn child aka nasciturus fiction easy simply understood summary with adjoining case studies included reference to Jacqueline Heaton, 5th Edition textbooks.
Law protects interest of Nasciturus by employing the fiction onto a fetus- regarding it alive at the time
of conception when its to its advantage
Rights are kept in abeyance IF nasciturus has rights & beneficiaries as if already born OR until foetus DOES
not become A LEGAL SUBJECT (abortion miscarriage)
NOTE: UNBORN FEOTUS CANNOT HAVE RIGHTS, DUTIES & CAPACITIES.
THERE ARE 2 REQUIREMENTS FOR NASCITURUS FICTION
• Nasciturus must have been conceived 2. Child must be born alive
@ the time the benefit would have been
Accrued to the nasciturus.
NOTES: limitation of nasciturus
A third party can ONLY benefit from APPLICATION of the fiction if the benefit is of
NATURAL CONSEQUENCE & the application is to BENEFIT of the nasciturus.
• If NF dies shortly after birth- fiction NOT employed as 3rd party ONLY benefits.
• If NF inherits large estate AND is large enough to SUPPORT IT=parents WILL
NOT BE LIABLE FOR MAINTENANCE- (parent & nasciturus benefit)
• FICTION CAN NEVER BE EMPLOYED IF TO DETRIMENT TO NASCITURUS
IS NASCITURUS A LEGAL SUBJECT?
IF it would be to the child’s advantage then yes!
NASCITURUS RULE NASCITURUS FICTION
Van der Vyver, Joubert & Van der Merwe Cronje & Heaton & Davel & Jordaan
Legal personality starts at conception Legal personality starts at birth
The unborn child has rights The born child has rights
The Child will be treated as a normal person Unborn child regarded as being born
, CASE LAWS
PATRIMONAL CASES
NOTES: interests take into account
In COMMON LAW the NF mainly applied in field of succession.
In SA LAW fiction application is extended past succession
In terms of succession- IF THERE IS NO CLARIFICATION law of succession till be considered.
A child in a ‘class’ who is conceived at time of death WILL INHERIT
Testate- valid will left Intestate- no valid will/ will left
Whatever stated in the will shall be given effect to. Person will inherit if Nasciturus is alive @ time of death,
if born alive they will inherit as if born at time of death
If not born alive NO rights are accured
EX P A RT E B RO ED E L F ID E ICO M MI S S UM EX P A RT E
o Refers to a person born SW ANEPO E L
ST E E NK A M P generations later • Court states upper guardian if
• Testator left property to o ‘A’ leaves farm to ‘B’, when ‘B’ born alive
daughter & children who were dies it goes to ‘C’ and • Court cannot act if child not alive
ALIVE at the time of this death thereafter to ‘D’. • HOWEVER GENERAL
• Daughter pregnant when T o Fiduciary- is B AMMENDMENT ACT- state
dies- child born alive. o Fidiecommissaries- are C & D court is upper guardian to all
• COURT RULING: o Instituion- fideicommissum children alive or still to be born
o NF would apply o PURPOSE • THEREFORE:
o Child inherits Protect interest on NO NF IS REQUIRED.
unborn child
F ID E ICO M MI S S UM - P RO T ECT IO N O F INT E RE ST S F O R UN B O R N C HI LD
‘B’ may NOT alienate or mortgage farm without HIGH COURT PERMISSION
• IF all fideicommissaries are majors & consent to alienation or mortgage- HIGH
COURT will grant the order
• If there is MINOR/ UNBORN fideicommissaries, court must grant/ withhold its
consent.
COURT WILL ONLY GRANT CONSENT IS:
• Alienation or mortgaging is to advantage of ALL beneficiaries, including the unborn
STANDARD PROTECTION OF INTEREST OF UNBORN CHILD
IM MO V E B A LE PR O P E RT Y A CT 9 4 AD M IN ST R AT IO N O F E ST AT E S A CT
O F 19 6 5 66 O F 1 9 65
Gives court power to remove/ modify If unborn child to be born is entitled
restrictions on immovable property which is to money or immovable assets which
imposed by a will ONLY IF its to advantage of is subject to someone else fiduciary
unborn or unconceived person r i g h t s , t h a t p e r s o n m u s t g i ve
SECURITY to master of HIGH COURT
f o r p a ym e n t o f m o n e y/ d e l i ve r y o f
property to unborn child.
I f t h e r e i s a m i n o r / f i d e c o m i s s a r y-
c o u r t w i l l g i ve / w i t h h o l d c o n s e n t a s
upper guardian.
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