Gory v Kolver: Law of INTESTATE Succession

Gory v Kolver NO (in full Gory v Kolver NO and Others (Starke and Others Intervening)) is a
decision of the Constitutional Court of South Africa which ruled that a same-sex life partner was
entitled to inherit the estate of the other partner who died intestate.
Gory (Appellant) and Brooks(deceased) were in a permanent same-sex life partnership, and had
had a symbolic ceremony similar to a wedding to express their intention to be together for the
rest of their lives. Mark Gory sought to be recognised as the sole intestate heir of his late same-
sex partner, Henry Harrison Brooks, who had died intestate on April 30, 2005, without leaving a
spouse or descendants. The court's decision was predicated on the fact that Gory and Brooks had
not had the option of formalising their partnership.
The court ruled that the Intestate Succession Act, 1987, which granted the right of intestate
succession to spouses but not to same-sex life partners, unfairly discriminated on the basis of
sexual orientation. The Act was therefore invalid because it violated section 9 of the
Constitution. To rectify the unconstitutionality, the court read the words "or partner in a
permanent same-sex life partnership in which the partners have undertaken reciprocal duties of
support" into section 1(1) of the Act after the word "spouse."

2ND SUMMARY GORY V KOLVER: Differ SUMMARY

The deceased and the applicant (Gory) were, at the time of the deceased’s death, allegedly
partners in a permanent, same-sex life partnership. When the deceased died intestate, his parents
nominated the first respondent (Kolver) to be appointed by the Master as the executor of their
son’s estate, and claimed to be entitled to his assets as his intestate heirs. This resulted in a
dispute with the applicant as to who the lawful intestate heir was. In the Constitutional Court the
issue was whether section 1(1) was unconstitutional. The Court held that it was unconstitutional..
The Court held that section 1(1) of the Act confers rights of intestate succession on heterosexual
spouses but not on permanent same-sex life partners. As these partners were at the time not
legally entitled to marry [this position was subsequently changed by the promulgation of the
Civil Union Act 17 of 2006 – see below] this amounted to discrimination on the listed ground of
sexual orientation in terms of section 9(3) of the Constitution, which discrimination is presumed
in terms of section 9(5) to be unfair unless the contrary is established. No justification was found
in terms of section 36 for the limitation of these rights. It was held that the order of constitutional
invalidity should operate retrospectively in the main, but with limitations so as to reduce the risk
of disruption in the administration of deceased estates and to protect the position of bona fide
third parties as far as possible