Winding up The ‘Bloody’ Estate

By Jolane van der Walt-Nieuwoudt (LLB) (LLM)

Murder should not be rewarded!

In the realm of inheritance law, a timeless principle holds sway: “the bloody hand cannot inherit”. This rule finds application in the Roman-Dutch maxim, de bloedige hand neemt geen erfenis. The ‘bloedige hand’ principle holds that no person who unlawfully causes the death of another may inherit from the deceased.

1. The ‘bloedige hand’ principle and its application in Section 37C pension fund distributions 

The Pretoria High Court has refused to extend the ‘bloedige hand’ principle in instances where the beneficiary of a death benefit was the child of the deceased’s killer.^[1]

The deceased and his wife were killed by the deceased’s stepdaughter (Bonolo). The stepdaughter had a minor child who was living with and dependent on the deceased and his wife. The deceased had nominated his mother and his wife as beneficiaries to his pension benefit upon his death and in the event that his mother died before him, he nominated his wife as the only beneficiary.

Notwithstanding that the stepdaughter (Bonolo) was instrumental in the murder of the deceased and his wife, the pension fund awarded the entire pension benefit to Bonolo’s child in terms of section 37C of the Pension Funds Act 1956.

The deceased’s siblings contested this by filing a complaint with the pension funds adjudicator. The adjudicator set aside the pension fund’s award and ordered a re-investigation of the allocation. The pension fund conducted the investigation and declared that the siblings were not dependents of the deceased and this decision was confirmed by the adjudicator.

The reasoning of the applicants was that, since the child’s mother was precluded from receiving a benefit based on the ‘bloedige hand’ principle, her child was equally not entitled to benefit and the common law ought to be extended. The court disagreed for the following reasons:

• The ‘bloedige hand’ principle does not extend down the bloodline to exclude anyone other than the ‘bloedige hand’ from receiving the benefit;
• The trustees of the pension fund correctly distributed the deceased’s pension benefit in accordance with section 37C of the Pension Funds Act by establishing factual dependence on the deceased notwithstanding that there was no biological link between the deceased and the child.

The judgment aligns with the position that only a wrongdoer should be prejudiced by his or her actions. The order sought by the siblings in this instance would have been to the detriment of the child despite him being innocent.

2. The ‘bloedige hand’ principle and its application where spouses are married in community of property

A question arises whether the ‘bloody hand’ maxim can be extended to matrimonial property law in cases where spouses are married in community of property. Where spouses are married in community of property, the surviving spouse is automatically entitled to a half-share of the joint estate – this is because the spouses are co-owners of the joint estate, and not because of the rules of succession. A problem arises where one spouse is unworthy to inherit, but still entitled to a half-share of the joint estate. 

In the case of Ex Parte Vonzell 1953 1 SA (C), the Court held that the principle that prevented a murderer to benefit from the estate of his victim does not mean that he cannot receive his share of the property which accrued to him at the time of marriage. In the matter of Nell v Nell 1976 2 SA (T) the wife murdered her husband. The couple were married in community of property. The Court had to decide whether the wife would be entitled to her half-share of the estate by virtue of their marriage in community of property. The Court found in favour of the wife and held that she is entitled to receive her half-share of the joint estate. The Court did however exclude the proceeds of life policies on the life of her late husband.

Severe criticism was levied against both decisions, especially since a spouse in divorce proceedings can obtain a forfeiture order of matrimonial benefits, but once murdered he or she cannot. The conflict between the existing matrimonial property system and the unworthy principle remains unsolved.

3. Administration of the Estate

During the administration of a deceased estate the rights to the assets vest in the appointed executor. The executor is tasked with the liquidation and distribution of the estate in accordance with the provisions of a deceased’s Will and if the deceased left no valid Will, then in accordance with the provisions of the Intestate Succession Act. The power to appoint the executor vests in the Master of the High Court. Furthermore, the executor’s position has been described as a so-called fiduciary one, which means that the executor is bound to act in accordance with the provisions of the Will, the law and in a bona fide manner. 

The question that arises, is whether the executor and/or Master of the High Court has the power to determine whether a person is worthy to inherit or not. The Master of the High Court does not have the authority to decide whether someone is unworthy to inherit without the interference of the Court. It is clear that a Court order must be obtained prior to disqualifying a beneficiary from inheriting from an estate.

In conclusion, “the bloody hand cannot inherit” remains a guiding principle in South African inheritance law, reflecting the core values of justice and morality. Its application, however, necessitates a thoughtful balance between penalizing wrongdoers and protecting innocent beneficiaries.