4. DETERMINATION OF "PARENT" STATUS IN INTESTATE SUCCESSION (BIOLOGICAL VS NORMATIVE PARENTHOOD AND UNWORTHINESS)

Map of Problem-Solving Steps for Succession Law, Determination of Parent Status and Unworthiness

• Factual Trigger: 

• Step 1: Identification of the Legal Issue

• Step 2: Scope, Applicable Law, and Factual Context

• Step 3: Biological vs Normative Concept of 'Parent'

• Step 4: The Normative Approach (Wilsnach NO v TM 2021)

• Step 5: The Biological/Legal Approach (Jacobs NO v Adams 2025)

• Step 6: Disqualification of an Abusive or Abandoning Parent via Common-Law Unworthiness (Indignitas)

• Step 7: Devolution of the Disqualified Parent's Share under Section 1(7)

Factual Trigger for Determination of Parent Status and Unworthiness Question

An estranged or abusive biological parent claims a 50% intestate share under Section 1(1)(d) from the estate of their deceased child whom they abandoned, abused, or failed to support during their lifetime.

Step 1: Identification of the Legal Issue

The legal issue here is whether an abusive or absent biological parent who abandoned their child during lifetime is legally entitled to inherit as a 'parent' under Section 1(1)(d) of the Intestate Succession Act 81 of 1987, or whether such a parent is excluded through normative statutory interpretation or common-law unworthiness (indignus).

Step 2: Scope, Applicable Law, and Factual Context

As such, This matter concerns/ requires the determination of parental capacity and the application of common-law disqualification under Section 1(1)(d) because an estranged biological father claimed an intestate inheritance from the estate of his deceased minor child whom he abandoned and failed to support.

Step 3: Biological vs Normative Concept of 'Parent'

Under Section 1(1)(d) of the Intestate Succession Act 81 of 1987, where a deceased leaves no spouse and no descendants, the intestate estate devolves upon the parents in equal half-shares (50% each).

A biological parent is a person who provided genetic material, whereas normative parenthood proposes that legal parenthood requires fulfilling moral, emotional, and financial parental responsibilities.

Step 4: The Normative Approach (Wilsnach NO v TM 2021)

In Wilsnach NO v TM 2021, the High Court adopted a normative interpretation, holding that biology alone does not make a person a 'parent' under Section 1(1)(d) of the Intestate Succession Act 81 of 1987, excluding an abusive, absent father from inheriting.

Step 5: The Biological/Legal Approach (Jacobs NO v Adams 2025)

In Jacobs NO v Adams 2025, the High Court declined to follow Wilsnach NO, holding that 'parent' in Section 1(1)(d) of the Intestate Succession Act 81 of 1987 is an objective biological and legal term designed to maintain administrative certainty for executors and the Master.

Step 6: Disqualification of an Abusive or Abandoning Parent via Common-Law Unworthiness (Indignitas)

In Jacobs NO v Adams 2025, the court established that the correct legal mechanism to exclude an abusive or abandoning parent is the common-law doctrine of unworthiness (indignus).

Where a parent flagrantly breaches their statutory and constitutional duty of support through gross neglect, their conduct constitutes severe indignitas, rendering them unworthy to inherit.

Step 7: Devolution of the Disqualified Parent's Share under Section 1(7)

Applying Jacobs NO v Adams 2025, the abandoning father meets the biological definition of 'parent', but his gross neglect renders him indignus and disqualified.

Under Section 1(7) of the Intestate Succession Act 81 of 1987, he is deemed predeceased, and his 50% share passes under Section 1(1)(d)(ii) to the caring mother and/or siblings by representation per stirpes.