INTEREST OF UNBORN CHILD aka NASCITURUS
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.
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.
