UNIT 4 - interests of the unborn child (nasciturus) Page 1 of 12
Prescribed Matters
Heaton pages 12 to 28
Ex parte Boedel Steenkamp (Casebook [1])
Road Accident Fund v Mobo M (also reported as Road Accident Fund v Mtati (Casebook [2])
Christian Lawyers Association of South Africa v The Minister of Health (Casebook [3])
Christian Lawyers’ Association v Minister of Health (Casebook [4])
Purpose of study unit
Working through this study unit should enable you to
(1) define the nasciturus fiction
(2) state the requirements that are necessary for this fiction to come into operation
(3) identify those interests in respect of which the fiction has been applied in our law, and
explain how the fiction is applied with each interest
(4) consider the question of whether the nasciturus is a legal subject, and distinguish between
the nasciturus fiction and the nasciturus rule
(5) apply the aforementioned principles to a given sets of facts, with reference to authority
1. Definition: nasciturus
A natural person's legal personality begins at birth. Therefore, the unborn are not legal subjects and
cannot have rights, duties and capacities. However, the law protects the potential interests of the
unborn by employing the nasciturus fiction. In terms of this fiction, a nasciturus, that is, an unborn
human being, is regarded as having been born at the time of his or her conception whenever it is
to his or her advantage. The fiction operates as follows: if it appears that a nasciturus would have
had certain claims or rights had he or she already been born, the legal position is kept in abeyance
until he or she is born and acquires legal personality, or until it is certain that he or she will not
become a legal subject. In other words, the legal position, the interests are kept aside until the child
is born, and until certainty has been reached that foetus will not become legal subject (abortion,
miscarriage, etc.). If the nasciturus indeed becomes a legal subject, he or she receives the rights that
have been kept in abeyance for him or her (child receives those interests).
For the nasciturus fiction to come into operation the following requirements must be met:
The nasciturus must have been conceived at the time that the benefit would have accrued to
him or her
The nasciturus must subsequently be born alive. If he or she is not born alive, the nasciturus is
considered as never even having been conceived.
The Application of the nasciturus fiction must be to the advantage of the nasciturus. A third person
may also benefit from the application of the nasciturus fiction if this is a natural consequence of the
application of the fiction, the fiction may not be employed if only a third person will benefit:
If inheriting nasciturus dies shortly after birth, fiction will not be employed as only a third-
party benefit and not the child.
If nasciturus inherits an estate large enough to support it, the parents will not be liable for its
maintenance (i.e. parents would benefit if the child were able to look after itself ), thus,
parents and nasciturus benefit.
, UNIT 4 - interests of the unborn child (nasciturus) Page 2 of 12
2. Interests taken into account
At common law the nasciturus fiction was applied mainly in the field of succession. In modern South
African law this is still the main field in which the fiction should be applied. However, the fiction has
been raised, and sometimes applied, in other areas of South African law, too.
3. Patrimonial interests
3.1. Succession
There is a distinction between intestate and testate succession.
Intestate succession, if a person dies without leaving a valid will, his or her estate devolves in
terms of the law of intestate succession. Under the rules of intestate succession, a person can
only inherit if he or she is alive at the time that the estate "falls open" (that is, when delatio
takes place - the moment the deceased dies). It is clear that if this principle were to be strictly
applied, a nasciturus could not qualify for an intestate inheritance. The nasciturus fiction is
employed to protect the potential interests of such a nasciturus. With the aid of the fiction,
distribution of the deceased estate is postponed until it is certain whether or not a live
person has been born (nasciturus rights be held in abeyance). If the child is born alive, he or
she inherits as if he or she were already born at the time of the deceased's death . In the
absence of live birth, the nasciturus does not inherit.
Testate succession, if a testator leaves property in a valid will, effect must be given to the
provisions of the will. If the testator's intention regarding whether or not the unborn should
inherit is clear, the testator's intention is simply carried out. If the testator's intention is
unclear, it must be established with the aid of the rules of the law of succession.
o If the testator leaves his/her property specifically to certain people, only those
beneficiaries can inherit. (E.g. testator leave property specifically to A, B and C, while D is
conceived at the time of the testator's death but has not yet been born. D will not inherit if
he or she is subsequently born alive, even if he or she is the testator's child. Only the
beneficiaries specifically mentioned in the will, will inherit, as this is clearly what the
testator intended. Intention is clear.
o If the testator leaves his or her property to his or her children who are born or still to be
born, any such children born after the testator's death will inherit, regardless of whether
or not they had been conceived at the time of the testator's death. The intention of the
testator is clear and it is simply carried out. Intention is clear.
o If a testator does not appoint beneficiaries by name but as members of a class, a child in
that class who was already conceived at the time of the testator's death but was born
only after the testator's death can also inherit. Thus, if a testator leaves his or her estate
to his or her daughter's "children" and the daughter has two children, A and B, and is
expecting C at the time of the testator's death, C will share in the inheritance if C is
subsequently born alive. Intention is unclear.
In this regard reference should be made to:
Case name: Ex parte Boedel Steenkamp 1962 (3) SA 954 (0)
Principle Succession (Testate): Nasciturus, conceived child, unborn
Facts Testator left residue of estate to daughter and her children “who are
alive at the time of my death”. At time of death daughter and two of
her children D & G were alive – she was expecting another child, P, who
was later born alive.
Prescribed Matters
Heaton pages 12 to 28
Ex parte Boedel Steenkamp (Casebook [1])
Road Accident Fund v Mobo M (also reported as Road Accident Fund v Mtati (Casebook [2])
Christian Lawyers Association of South Africa v The Minister of Health (Casebook [3])
Christian Lawyers’ Association v Minister of Health (Casebook [4])
Purpose of study unit
Working through this study unit should enable you to
(1) define the nasciturus fiction
(2) state the requirements that are necessary for this fiction to come into operation
(3) identify those interests in respect of which the fiction has been applied in our law, and
explain how the fiction is applied with each interest
(4) consider the question of whether the nasciturus is a legal subject, and distinguish between
the nasciturus fiction and the nasciturus rule
(5) apply the aforementioned principles to a given sets of facts, with reference to authority
1. Definition: nasciturus
A natural person's legal personality begins at birth. Therefore, the unborn are not legal subjects and
cannot have rights, duties and capacities. However, the law protects the potential interests of the
unborn by employing the nasciturus fiction. In terms of this fiction, a nasciturus, that is, an unborn
human being, is regarded as having been born at the time of his or her conception whenever it is
to his or her advantage. The fiction operates as follows: if it appears that a nasciturus would have
had certain claims or rights had he or she already been born, the legal position is kept in abeyance
until he or she is born and acquires legal personality, or until it is certain that he or she will not
become a legal subject. In other words, the legal position, the interests are kept aside until the child
is born, and until certainty has been reached that foetus will not become legal subject (abortion,
miscarriage, etc.). If the nasciturus indeed becomes a legal subject, he or she receives the rights that
have been kept in abeyance for him or her (child receives those interests).
For the nasciturus fiction to come into operation the following requirements must be met:
The nasciturus must have been conceived at the time that the benefit would have accrued to
him or her
The nasciturus must subsequently be born alive. If he or she is not born alive, the nasciturus is
considered as never even having been conceived.
The Application of the nasciturus fiction must be to the advantage of the nasciturus. A third person
may also benefit from the application of the nasciturus fiction if this is a natural consequence of the
application of the fiction, the fiction may not be employed if only a third person will benefit:
If inheriting nasciturus dies shortly after birth, fiction will not be employed as only a third-
party benefit and not the child.
If nasciturus inherits an estate large enough to support it, the parents will not be liable for its
maintenance (i.e. parents would benefit if the child were able to look after itself ), thus,
parents and nasciturus benefit.
, UNIT 4 - interests of the unborn child (nasciturus) Page 2 of 12
2. Interests taken into account
At common law the nasciturus fiction was applied mainly in the field of succession. In modern South
African law this is still the main field in which the fiction should be applied. However, the fiction has
been raised, and sometimes applied, in other areas of South African law, too.
3. Patrimonial interests
3.1. Succession
There is a distinction between intestate and testate succession.
Intestate succession, if a person dies without leaving a valid will, his or her estate devolves in
terms of the law of intestate succession. Under the rules of intestate succession, a person can
only inherit if he or she is alive at the time that the estate "falls open" (that is, when delatio
takes place - the moment the deceased dies). It is clear that if this principle were to be strictly
applied, a nasciturus could not qualify for an intestate inheritance. The nasciturus fiction is
employed to protect the potential interests of such a nasciturus. With the aid of the fiction,
distribution of the deceased estate is postponed until it is certain whether or not a live
person has been born (nasciturus rights be held in abeyance). If the child is born alive, he or
she inherits as if he or she were already born at the time of the deceased's death . In the
absence of live birth, the nasciturus does not inherit.
Testate succession, if a testator leaves property in a valid will, effect must be given to the
provisions of the will. If the testator's intention regarding whether or not the unborn should
inherit is clear, the testator's intention is simply carried out. If the testator's intention is
unclear, it must be established with the aid of the rules of the law of succession.
o If the testator leaves his/her property specifically to certain people, only those
beneficiaries can inherit. (E.g. testator leave property specifically to A, B and C, while D is
conceived at the time of the testator's death but has not yet been born. D will not inherit if
he or she is subsequently born alive, even if he or she is the testator's child. Only the
beneficiaries specifically mentioned in the will, will inherit, as this is clearly what the
testator intended. Intention is clear.
o If the testator leaves his or her property to his or her children who are born or still to be
born, any such children born after the testator's death will inherit, regardless of whether
or not they had been conceived at the time of the testator's death. The intention of the
testator is clear and it is simply carried out. Intention is clear.
o If a testator does not appoint beneficiaries by name but as members of a class, a child in
that class who was already conceived at the time of the testator's death but was born
only after the testator's death can also inherit. Thus, if a testator leaves his or her estate
to his or her daughter's "children" and the daughter has two children, A and B, and is
expecting C at the time of the testator's death, C will share in the inheritance if C is
subsequently born alive. Intention is unclear.
In this regard reference should be made to:
Case name: Ex parte Boedel Steenkamp 1962 (3) SA 954 (0)
Principle Succession (Testate): Nasciturus, conceived child, unborn
Facts Testator left residue of estate to daughter and her children “who are
alive at the time of my death”. At time of death daughter and two of
her children D & G were alive – she was expecting another child, P, who
was later born alive.
