Nasciturus Rule and Nasciturus Fiction
The phrase nasciturus rule and nasciturus fiction are sometimes both used as synonyms,however they have different meanings. The nasciturus rule is used to refer to circumstanceswhich would occur and be to the benefit of the fetus if she had been born. This means that thefetus is regarded as a legal subject from the date of her conception. Therefore legal personality sometimes commences at birth or at conception. The nasciturus fiction refers to afetus that is regarded as having been born at the time of conception if the issue at hand is toher advantage. The rights of the child who will be born is given protection. South Africafollows the nasciturus fiction, henceforth it can be said that in Namibia we follow the sameapplication. This fiction has certain requirements:i.An advantage/benefit that accrues to the fetus if he/she was aliveii.The child must have been conceivediii.Subsequent birth (the child must have been born alive)*Nasciturus Rule: where there is a benefit for the child: at the time of conception, the child becomes a legal subject.*Nasciturus Fiction: Whatever benefit will have to be on hold until the child is born alive.
CASE: Ex Parte Boedel SteenkampIn this case, a will provided that the residue of the testator’s estate was to devolve in equalshares to his daughter
and her children of her first generation at the time of his death. Mhad two children,
, and was pregnant with a third child (
), who was born 7 monthsafter the death of the testator. The Court regarded
as alive at the date of the testator’s deathand was entitled to share the inheritance. In this case, in can be clearly seen that thenasciturus fiction was applied here for the benefit of the child born.
CASE: Ex Parte Administrators Estate AsmallIn this specific case, the testator made a will in 1936 which he bequest a monthly fee of £8for his 3 sons:
, and £3 for each of his 4 daughters:
Ay, Am, K
. The 7children were all alive at the time. In 1942 when he executed a codicil, K had died but 3more children were born:
. The testator simply said that £8 were to be paid to thesons per month, and £4 to his daughter. Another daughter
was born. In 1944 the testator died, and another son
was born after his death. The question the court was faced with waswhether or not
were entitled to inherit. In this case the Court applied the nasciturusfiction and held that they were entitled to inherit, as it was to their benefit and was theintention of the testator.
CASE: Pinchin v Santam Insurance Co. LtdIn this case the Plaintiffs sued Santam as agent of what was the predecessor of the present