The exclusion of adopted children from inheritance: recent developments

Abstract

The study aims to discuss the position of the adopted child in relation to the law of succession in light of recent developments. It further aims to discuss how de facto and de lege adoptions according to both common law and customary law affect adopted children's right to inherit under the law of intestate succession. This study makes recommendations based on the common law, and customary law findings respectively. The Intestate Succession Act 81 of 1987, and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 will be frequently referred to in order to determine the adopted child's position. The study found that de facto adopted children are still not considered children of the deceased. It further found that a testator's freedom of testation is not allowed to exclude adopted children. This creates a problem especially for children who have been adopted according to customary law seeing as the customary law practice of adoption is outdated and does not require a formal Court document. Alleged adoptive parents would take on the full role of care and guardianship over the alleged adopted child but when they die the child cannot inherit mainly because they are not considered a legally adopted child.