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Cape Town Court rules life partners are spouses for intestate succession


Latest Cape High Court ruling

Cape Town Court rules life partners are spouses for intestate succession

Bwanya v Master of the High Court, Cape Town and Others [2020]

The applicant (B) and R met in February 2014 and they started living together in his house in June 2014.  The undisputed evidence before the court was that R treated B as his wife.  To friends, with whom they mixed socially, their relationship at all times appeared to be that of a couple. R made several preparations for the two of them to travel to Zimbabwe to meet B’s family, negotiate lobola and prepare for a wedding.  R died unexpectedly in April 2016.  B lodged claims against the estate as intestate heir as R’s spouse, and under section 2 of the Maintenance of Surviving Spouses Act, 27 of 1990 (MSSA).

The executor of R’s estate, rejected both claims, which rejections were upheld by the Master.  This led to B bringing the application that both section 1(1) of the Intestate Succession Act, 81 of 1987 (ISA), and certain provisions of the MSSA are unconstitutional and invalid.

The court considered the anomaly that arose in South African law after the Constitutional court ruled in 2006 that life partners in a permanent same-sex relationship are regarded as spouses for purposes of section 1 of the ISA.

The court held that this constituted unfair discrimination on the basis of gender and sexual orientation and that it is presumed to be unfair under section 9 of the Constitution. The court ruled that section 1(1) should therefore be read to include the words “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support’ after the word “spouse” wherever it appears.

The judgement is now subject to confirmation by the Constitutional Court under section 172(2)(a) of the Constitution.


It would be surprising if the Constitutional Court does not confirm this judgement

A properly executed will is always extremely important, and would have avoided the necessity for a court application in the present case.

Contact Alcock & Associates Inc today to review your will and/or discuss the drafting of a new one to prevent possible escalating costs after death.

*Extracts of Article first published by FISA 8th October 2020

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