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It is a common principle that the bloody hand may not inherit. There have been countless cases where this principle was applied but the application of the principle is, as always, subject to certain exceptions and usually determined after a guilty verdict in a criminal trial.

The recent decision of Mantame J in Z Smit v The Master and two others, which was handed down in the Western Cape High Court on 26 April 2022, confirmed that the bloody hand may not inherit. What was novel about this case, however, was that the bloody hand principle was proven in a civil court on a preponderance of probabilities before the criminal trial even commenced. This decision has accordingly laid the foundation for future applications to have an heir declared unworthy to inherit even if the state failed to criminally prosecute said heir for a crime against the testator or his/her heirs.

Another question with which the court was faced in the aforementioned matter was whether the common law overrules a spouse’s statutory right to claim maintenance from the estate, and whether the unworthiness of a person is limited to inheriting testate or whether it extends to intestate succession as well?

Mantame J confirmed the decision in Casey v The Master Others 1992 (4) SA 505 (N) and confirmed that law and public policy require that a person with bloody hands should also forfeit benefits of maintenance. The court referred to a number of cases in coming to a conclusion. In Pillay and Others v Nagan 2001 (1) SA McCall J accepted that there cannot be limitations to the question of unworthiness to inherit. McCall J in turn quoted Bale CJ in Taylor v Pim 1903 NLR 484 as saying: classes of persons may include persons who are deemed unworthy for reasons other than some wrong they have done to the testator or his property. The causes which may render an heir unworthy of the succession are indefinite. If there should happen any other case where good manners and equity should require than an heir should be declared unworthy, it would be just to deprive him of the inheritance.

The learned Judge concluded that disqualification of the murderer of a testator extends to disqualification from succeeding either intestate or by testament from the testator. Mantame J also quoted Traverso AJP from Danielz NO v De Wet and Another 2009 (6) SA 42 (C) as saying “The grounds of unworthiness are not static and the common law should be developed to include these grounds that presently offend the boni mores of society.”

If involvement in the murder of her spouse was not enough, it was proven in court Mrs Smit had forged her deceased husband’s will on two occasions as well, as that of his mother who passed away in 2015, to benefit herself. Mantame J held that, with the forgeries being confirmed, Mrs Smit is a candidate for criminal prosecution in terms of section 102(1) of the Administration of Estates Act 66 of 1965 and should for this reason also be unworthy of succeeding to the estate of the person whose heirs she attempted to defraud.

To summarize a 79-page judgement: it was found, that the ethics and morals of our society dictate that Mrs Smit should not receive any benefit from the estate of her late husband and the common law was developed and adapted to conform to the prevailing morals of society.



We are incredibly proud of the VST Attorneys team, led by Mr. Ernest van Staden, for the successful representation of our client in the matter of Z Smit v The Master and two others, and whole heartedly agree with the judgment of Mantame J which was handed down in the Western Cape High Court on 26 April 2022. It is heartening to see the common law being developed to ensure that justice is served.

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1 commento

AJ Truter
AJ Truter
20 giu 2022

Justice well served.

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