Does an illegitimate child have a claim against his late father’s estate?

A client asked: “I am an illegitimate child and my father passed away. Can I claim from his estate”? 

In South Africa, the rights of illegitimate children have been protected and recognized by the law. The Children's Act of 2005 abolished the legal distinctions between legitimate and illegitimate children, ensuring that all children are treated equally in terms of inheritance rights. 

If his father passed away and he is his illegitimate child, he has the right to claim from his father’s estate, in these circumstances. 

If the father left a will and included the client as a beneficiary or legatee in the will, he would have a valid claim to the inheritance specified in the document. 

However, if he was excluded from the will or the deceased died without a will, the client may still have a claim against the estate. South African law recognizes the principle of "adequate provision," which means that if he can show that he was financially dependent on his father or that he had an obligation to maintain him, the client may be entitled to claim from the estate. 

If paternity is in dispute, the client must provide evidence that the deceased was the father, such as DNA testing or any other relevant documentation. It is advisable to consult with a lawyer who specializes in estate law or inheritance matters to understand the specific legal options available. 

It's important to note that laws and regulations can change over time, and it's always best to consult with a legal professional who can provide you with the most up-to-date and accurate information based on your specific situation.

Claiming dependants' benefits at UIF

 

Following the death of a contributor to the Unemployment Insurance Fund (UIF), you can claim the dependant’s benefits from the UIF, if you are a:

• spouse
• life partner
• guardian
• child of the deceased contributor.

You must apply within six months of the death of the contributor. Dependent children under the age of 21 years are entitled to benefits if there is no surviving spouse or life partner.

Find out more about claiming UIF dependants’ benefits or contact the UIF.

Can a fixed-term employee whose dismissal is found to be unfair request reinstatement as a remedy?

 

By Sharusha Moodley, Bregman Moodley Inc Attorneys

According to Section 193(1) of the Labour Relations Act 66 of 1995 (LRA), once a dismissal is found to be unfair, an arbitrator may order reinstatement, re-employment, or compensation for the employee. However, there are certain conditions that must be considered. 

Section 193 of the LRA outlines the circumstances under which reinstatement may not be required. These include:

a.    The employee does not wish to be reinstated,

b.    The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable,

c.     It is not reasonably practicable for the employer to reinstate or re-employ the employee, or

d.    The dismissal is unfair only because the employer did not follow a fair procedure. 

In the case of Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (DA6/2021) [2023] ZALAC 5 (14 February 2023), the arbitrator found the dismissal of an employee to be substantively unfair and ordered the employer to pay compensation. However, since the employee was on a fixed-term contract that had already expired at the time of the dismissal, the arbitrator was legally unable to order reinstatement. 

The employee challenged the arbitrator's decision on appeal, arguing for reinstatement instead of compensation. However, the Labour Appeal Court held that reinstatement was not a competent remedy in this case because the fixed-term contract had already expired and was not in existence at the time of the dismissal. The court clarified that reinstatement is a remedy for unfair dismissal only when the contract of employment is still in effect at the time of the order. 

Therefore, if an employee's fixed-term contract has expired before an arbitrator's finding of unfair dismissal, reinstatement is not a viable remedy. In such cases, the arbitrator is obligated to order payment of compensation as the appropriate remedy under Section 193(1) of the LRA.

 

Holistic Estate Planning: Protect Your Assets, Plan for Succession, and Ensure Disability Protection

Bregman Moodley Attorneys work with estate planning expert Dr Mervin Messias to devise a comprehensive estate plan that addresses all aspects of your life. Discover how a holistic estate plan can protect your assets, plan for succession, and ensure disability protection.

At Bregman Moodley Attorneys, we understand the importance of estate planning. That's why we work closely with Dr Mervin Messias, an estate planning expert, to create a comprehensive estate plan that considers all aspects of your life.

A holistic estate plan must address three critical issues: asset protection, succession planning, and disability protection. By considering these factors, we can create a plan that ensures your loved ones are taken care of both before and after your death.

To achieve the desired outcome, a holistic estate plan establishes one or more discretionary living trusts. By setting up these trusts during your lifetime, we can address all concerns in the most appropriate manner.

The main focus of a holistic estate plan is to prioritize the following in this order: 

·        Ensuring the well-being of you and your spouse.

·        Providing for your family.

·        Protecting your wealth.

·        Enhancing your wealth.

·        Saving taxes.

By prioritizing these factors, we can create a comprehensive estate plan that meets your needs and protects your assets. Contact us today to learn more about how we can help you plan for the future.

 

 

 

 

 

Application by an ex-wife to claim a pension benefit from her ex-husband’s pension fund.

In the case of C.N.N V N.N (2021-11607) [2023] ZAGPJHC 208 the Johannesburg High Court refused to vary a divorce order to allow her to claim a pension benefit from her ex’s pension fund.   

The ex-wife filed an application to claim a portion of her ex-husband's pension benefit from his pension fund after their divorce. However, the Johannesburg High Court refused to vary the divorce order to allow her to do so. The respondent had resigned from his employment and exited his pension fund before the divorce was finalized, leaving him with no pension interest at the time of the divorce. The applicant was not aware of this and only approached the fund after the divorce to claim her share of the pension benefit, which had already accrued to the respondent. She brought an application to vary the divorce order to direct the fund to pay her a portion of the respondent's accrued pension benefit. 

The Court held that the applicant was relying on a section of the Divorce Act to claim a pension benefit that had already accrued to the respondent through resignation, rather than a pension interest that should have accrued to the respondent due to the divorce. The Court also noted a gap in the law that does not adequately allow non-member spouses to claim portions of pension benefits when the member spouse exits the fund before the divorce. The application was dismissed as the Court was bound by the existing law, and the Court suggested that the applicant should have challenged the current legal position. 

The existing law allows member spouses to deliberately prejudice their non-member spouses' claims by resigning from their employment after being served with a divorce summons.