In a groundbreaking reportable judgment delivered by the Gauteng High Court, Johannesburg, the case of Jacobs and Another v Adams and Another [2025] ZAGPJHC 860 (24 August 2025) has clarified how South African succession law deals with biological parents who abandon their children. The decision offers important guidance on the role of parental conduct in determining inheritance rights under the Intestate Succession Act 81 of 1987 (herein referred to as ISA).
Background
The case concerned a mother, Kay Jacobs (“Jacobs”), who applied to the court to prevent Selwyn Adams (“Adams”) the biological father of her late son Ivan from inheriting under the ISA. Ivan had passed away intestate at the age of 29, with no spouse or children, leaving an estate of approximately R716,000. According to the ISA, where a deceased is survived only by their parents, the estate is to be divided equally between them.
However, Adams had played no meaningful role in Ivan’s life. Beyond some minimal maintenance payments early on and a hospital visit when Ivan was a baby, Adams had no contact with his son for nearly three decades. Based on this abandonment, Jacobs asked the court to either:
- Declare Adams not a “parent” within the meaning of the ISA, or
- Declare him unworthy (indignus) to inherit from the estate.
Legal Issues for Determination
The court had to resolve two intertwined legal questions:
- Can the term “parent” in the Intestate Succession Act be normatively restricted i.e. can a biological parent be excluded on grounds of desert or conduct?
- Does the common-law doctrine of unworthiness (indignus) permit exclusion of a parent whose abandonment is total and absolute in extreme cases?
These questions touch on a deeper tension in inheritance law biological entitlement versus moral desert.
The Court’s Decision
Acting Judge Snyckers delivered a careful and principled judgment:
1. The term “parent” cannot be redefined normatively under the ISA
The court declined to follow the 2020 decision in Wilsnach NO v TM and Others (ZAGPPHC 756), where a similar argument succeeded. In that case, the court had relied on the Children’s Act 38 of 2005 (“the Children’s Act”) to interpret “parent” in a way that excluded an absentee father from inheritance.
In Jacobs, Judge Snyckers firmly rejected this approach and held that the ISA serves a very different purpose from the Children’s Act. Succession law, he noted, requires clarity, predictability, and fixed rules. Allowing courts to redefine “parent” based on conduct would open the door to endless litigation and uncertain outcomes. As Snyckers AJ observed:
“The ISA… does not accommodate an adjudicative diversion of the line of succession on a moral or normative basis.”
2. But unworthiness (indignus) remains a valid exclusionary doctrine
Importantly, the court held that Adams could still be excluded not by redefining “parent”, but through the common law doctrine of unworthiness.
Traditionally, this doctrine was applied in cases of murder, fraud, or other egregious conduct aimed at the deceased. However, the court in Jacobs accepted that extreme parental abandonment can constitute grounds for a finding of unworthiness, particularly where the abandonment was lifelong and total.
On the facts, the court found that Adams had completely failed in his parental duties and had shown no interest in his son’s life. That degree of abandonment, the court held, was sufficiently serious to justify excluding him from the estate.
As a result, the court ordered that:
- Adams is declared unworthy to inherit from Ivan’s estate;
- The balance of the estate would devolve to the surviving parent, Jacobs.
Why This Case Matters
This decision carefully balances two competing principles in South African succession law:
- The need for certainty in the distribution of estates, especially under the ISA; and
- The moral imperative that people who entirely abandon their familial duties should not benefit from relationships they neglected.
The court’s reasoning aligns with academic critique of Wilsenach. In particular, legal scholar Michael Cameron Wood-Bodley has argued that importing definitions from the Children’s Act into the ISA can create confusion and unintended consequences (see his article: “Who is a Parent for the Purposes of the Intestate Succession Act?” [2023] SALJ 139(4): 652–666).
Snyckers AJ adopted this view, affirming that only Parliament can change the ISA’s definition of “parent” but that courts still have room to apply the indignus doctrine in appropriate cases.
Practical Implications for Estates and Executors
- Executors should assess potential claims of unworthiness: In estates where a parent or relative seeks to inherit despite total estrangement, legal advice should be sought to determine whether a challenge can be made based
- Family members can challenge inheritance on moral grounds but only in extreme cases: Courts are unlikely to entertain claims of unworthiness unless the neglect or misconduct is severe, sustained, and well-documented.
- Testamentary planning remains crucial: If a person does not want an estranged parent to inherit, the best approach is to execute a valid last will and testament. The ISA applies only where no valid will exists.
A Cautious but Incomplete Step Forward
While the judgment in Jacobs and Another v Adams and Another is commendable for its restraint and doctrinal clarity, it leaves important questions unresolved. By rejecting a normative reinterpretation of “parent” under the Intestate Succession Act, the court preserved legal certainty but at the cost of limiting judicial responsiveness to evolving notions of parental responsibility.
The reliance on the doctrine of unworthiness, though effective in this case, introduces a fact-intensive and discretionary element into what should ideally be a predictable area of law. Moreover, the court’s reluctance to articulate broader principles for what constitutes “complete abandonment” may lead to uneven outcomes in future litigation. This judgment emphasizes the need for legislative reform to provide clearer guidance on whether and how parental neglect should affect inheritance rights. Until then, the indignus doctrine remains a narrow and somewhat unpredictable tool for addressing moral injustice in intestate succession.
Conclusion
Jacobs and Another v Adams and Another, is a landmark in South African succession jurisprudence. It offers a measured and thoughtful response to a difficult human problem. While the law cannot retroactively fix broken relationships, it can ensure that legal benefits like inheritance are not distributed in ways that offend justice and public policy. For now, biological parents retain inheritance rights under the ISA, but extreme parental neglect may well render them unworthy.
This case sets a precedent for similar claims in the future and highlights the importance of proper estate planning and timely legal advice.
REFERENCES
- Jacobs and Another v Adams and Another [2025] ZAGPJHC 860 (24 August 2025)
- Wilsnach NO v TM and Others [2020] ZAGPPHC 756
- C. Wood-Bodley, “Who is a Parent for the Purposes of the Intestate Succession Act?” (2023) 139 SALJ 652
- Intestate Succession Act 81 of 1987
- Children’s Act 38 of 2005
Written by Ms Alimah Mmatsebo Nkoana, Candidate Legal