intestate;

married
can inherit
heterosexual
whereas,
intestate.only
partners

Succession Lecture Notes (Term 1)

respondent Kolver to be appointed by the Master of the High
Court, Pretoria as the
executor of their son’s estate.
 Kolver agreed that the Gory and the deceased had been
same-sex partners but
denied that he was the intestate heir.
 Gory argues that he was the heir. He brought an application
to the TPD challenging the
constitutionality of s1 (1) of the Intestate Succession Act
which provides that where a
person dies intestate, and is survived by a spouse, but not by a
descendant, such spouse
shall inherit the intestate estate.
 The basis of his claim was that s1 (1) of the Act conferred
rights of intestate
succession on heterosexual spouses but not on permanent
same-sex life partners
and as these partners are not [before Fourie] legally entitled to
marry, this amounted
to discrimination on the listed ground of sexual orientation in
terms of s9 (3) of
the Constitution, where discrimination in terms of s9 (5) is
presumed to be unfair
unless the contrary is established.
 The HC said that Gory and Brooks had been in a permanent
same-sex life partnership
and had undertaken reciprocal duties of support and b/c of this
held that s1 (1) of the
Intestate Succession Act; which provided for the entitlement
of the surviving spouse
to inherit; was unconstitutional is so far as it omitted the right
of a surviving same-sex
life partner to inherit.
 The case went to the CC on appeal and the CC found that
s1 (1) of the Intestate
Succession Act violated s9 (3) of the Constitution [the
Equality Clause] and declared that
from 27 April 1994, s1 (1) of the Intestate Succession Act is
to be read as though the
following words appear therein after the word ‘spouse’
wherever it appears in the
section: ‘or partner in a permanent same-sex life partnership
in which the partners have
undertaken reciprocal duties of support.’
 Consider the following : this case was decided a couple of
months before the Civil
Unions Act 17 of 2006 which allowed same-sex marriages
came into force.
 As it stands now, both married and unmarried same-sex life
partners can inherit
intestate; whereas, only married heterosexual partners can
inherit intestate.