Can a person married in community of pro...

Asked by elzette on 24-11-2020 18:33:04
Question posted in the Family Law category relating to Free State

Can a person (married in community of property) still inherit even though he or she negligently killed his or her spouse?

Answer to the Question

Posted by Att. Patrick on 25-11-2020 22:49:54

The “bloedige hand” principle stipulates that no person who causes the death of another person, intentionally or negligently, may inherit from the deceased. The legal position of the beneficiary who intentionally killed the testator is certain - he or she cannot inherit from the former. However, it is fairly uncertain how the “bloedige hand” principle is applied in cases where the testator’s death was negligently caused by his or her beneficiary. In some cases of negligence, for example a motorcar accident, the community does not view the action of the perpetrator as blameworthy. Moral blameworthiness is used as an indication of whether the “bloedige hand” principle should be applied or not. No law case exists where courts applied the “bloedige hand” principle in situations where the death of a testator was negligently caused by the driving of a motorcar. There are a number of writers who are of the opinion that the principle should be relaxed to put motorcar accidents out of the ambit of the “bloedige hand” principle. The uncertainty surrounding the application of the “bloedige hand” principle in the case of negligence has a potential effect on estate planning, because the benefits one would have received as beneficiary would be lost if the testator was negligently killed by such beneficiary. The testator should therefore make provision in his or her will for cases where he or she is negligently killed by one or more of his or her beneficiaries. The aim of this dissertation is to discuss the principles relevant to the “bloedige hand” principle in the case of negligence and to identify the potential impact of the principle on estate planning, and then to advance mechanisms which can be used by the testator to keep estate planning in place if he or she is negligently killed by one or more of his or her beneficiaries.

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