WHEN BLOOD ON YOUR HANDS BARS YOU FROM THE ESTATE: WILLS AND JUSTICE IN SA LAW

Introduction 

South African law recognises the importance of testamentary freedom, which is the right of an individual to determine what will happen to their estate after his or her death. This right is usually exercised through the execution of a valid will. However, this freedom is not absolute, one significant limitation is the common law principle known as the “de bloedige hand neemt geen erf’s” which when translated means that the bloody hand shall not inherit. 

This article examines the legal basis and significance of the common law principle, which prevents individuals from inheriting from someone whose death they caused and explores why drafting a valid will remains one of the most crucial aspects of estate planning in South Africa. 

The importance of a Will in South African Law 

A will, also referred to as a testament, is a declaration by a  testator or testatrix on how they wish for their estate to be distributed upon their death. The Wills Act 7 of 1953 serves as the governing legislation in South Africa, as it relates to the formalities and validity of a Will. 

South African law places a strong emphasis on the right of an individual to dispose of their assets as they wish after their death. This is known as freedom of testation. A properly drafted and executed will ensure that the testator or testatrix wishes are legally binding, disputes among family members and dependents are minimised, and it facilitates the efficient administration of an estate. 

Dying without your wishes recorded in a will 

When a person dies without leaving a will behind, the deceased’s estate will then be distributed according to the Intestate Succession Act 81 of 1987, which may result in unintended consequences. Such as, family members which the deceased did not want to benefit from his or her estate receiving portions of the estate. 

De Bloedige Hand Neemt Geen Erf’s 

The common law principle of de bloedige hand neemt geen erf’s, which translates to the bloody hand shall not inherit. In essence, this principle provides that persons who have unlawfully or intentionally caused the death of testator or testatrix of a will to which they are a beneficiary shall be deemed to be disqualified from any benefit due to their wrongdoing. 

The legal effect of this principle is that the person accused of the alleged wrongdoing is disqualified from inheriting any benefit, and their share of the estate will devolve accordingly to other beneficiaries. 

Danielz N.O v De Wet and Another 

In this case, a wife took out four insurance policies over her husband’s life and importantly was nominated as the sole beneficiary of these policies. She then conspired with an individual to attack her husband, following the attack her husband was shot and due to his injuries passed away. 

The Western Cape High Court had to decide on whether the wife could still lay claim to the proceeds of the insurance policies, as well as if she could claim the inheritance in terms of her husband estate. The Court in its judgment held that the wife could not be considered a beneficiary in terms of the insurance policies or her husbands’ estate. The Court remarked that “where some turpitude on the part of the assured is so connected with the risk and so repugnant to good morals, that public policy requires that the assured cannot claim the benefit”. 

Why this principle goes hand in hand in with public policy. 

This common law principle reflects that society has fundamental sense of justice in that a person who commits a heinous act, such as murder must not be rewarded for it. Allowing the killer per se to inherit would undermine the moral fabric of the law and signal that misconduct can be met with financial gain. Further, the principle serves as deterrent to those who might be motivated to harm someone from whom they have reason to expect they will inherit from. 

While succession law is intended to give effect to the testator or testatrix’s genuine wishes, assuming these wishes were made freely and voluntarily and that the beneficiaries who were to inherit are without any wrongdoing. Public policy will intervene where this assumption is violated by a heinous act and will strive to preserve the integrity of succession law. 

Conclusion 

The bloody hand shall not inherit principle plays a crucial role in ensuring that inheritance law reflects both legal and moral values. It prevents unjustified enrichment and upholds the public policy by denying benefits to those who seek to gain from using unlawful conduct to cause the death of another. 

Equally, the existence of a valid will  remains essential for anyone wishing to secure the proper administration of their estate. A well drafted and properly executed will can reduce conflict, direct assets meaningfully and provide legal certainty, provided those named in the will come to inherit with “clean hands”.  

For advice on drafting a valid will or contesting inheritance on wrongful conduct, contact Gittins Attorneys for assistance.