February 15, 2018

Setting aside adoption in order to claim inheritance

The Intestate Succession Act states that an adopted child could not inherit from his or her biological parent if the latter passed away without a will.

There is a very interesting case coming our way as a professor is challenging the constitutionality of the Intestate Succession Act.

The professor was adopted 51 years ago. He claims that his biological mother was forced to give him up for adoption and that the adoption is therefore illegal and has no force. His biological mother is a co-applicant in this matter as she alleges she was forced to give up her child for adoption. His parents never informed him that he was adopted, and he discovered that he was adopted in 2012. He located his birth parents and had a good relationship with his father for four years.

His biological father passed away without a will.  Eben Marè is of the opinion that he is entitled to an equal share of his father’s estate in terms of the Intestate Succession Act, as he alleges his adoption was not legal.

The adoption will have to be set aside before any claim could be considered in terms of the Intestate Succession Act.

I am of the opinion that adopted children should not be entitled to inherit from their biological parents as the adoption breaks all ties with the biological parents. This will also complicate situations where children are not told by their adoptive parents that they are adopted. Will an adoptive parent then be obligated to inform their child that they have been adopted?

I think this case will create numerous issues and that the Intestate Succession Act as it stands is correct.

However, it will be interesting to see what evidence is brought before the High Court and what the Court will decide.


Raullene Marais
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