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Unborn Child

Will Your Unborn Child Be Covered In Terms Of Your Will?

Thinking about the future well-being of your children and grandchildren once you are gone, can be frightening. To give you peace of mind, it is important to ensure that your children and/or grandchildren are protected and provided for in a last will and testament.  Luckily most people understand this, but it is not always clear what happens in the case of unborn children.  Are they eligible? What is the position if there is no will or testament?

To be or not to be? Baby that is the question

Since the Covid-19 pandemic began, many South Africans have become even more aware of their own mortality. As a result, they had to make serious decisions about their future and rethink their children’s well-being and future. Many have set out to have a last will and a written will. However the question has arose regarding the inheritance for an unborn child, if your wife was pregnant with your child, or your daughter was pregnant with your grandchild, should you die before the baby is born.

The law regulates the birth, civil status and death of a natural person. It sets out the requirements and qualifications of legal personhood or subjectivity to the related rights and obligations. According to the law, a child’s legal identity only begins at birth. The problem is that, when strictly applying this concept, the baby would have “no rights, duties or abilities” before birth. The good news is that, fortunately, the law allows for the protection of unborn children by means of specific provisions, as briefly summarised below.

Nasciturus Fiction

Nasciturus Fiction is a common law doctrine whereby a child conceived before the death of the deceased is deemed to have “acquired rights” from the moment of conception. Despite unborn children not being considered legal entities, this legal principle allows the child to become a legal entity if it was conceived before the death of the testator and then born and being alive to inherit the legal personality.

Testate/ Intestate Succession

Similar to Nasciturus Fiction, the unborn child can acquire inheritance rights by means of testamentary succession, whether the testator leaves a will or not, provided that the child is born alive of course.


In summary, the unborn child can inherit if the principles of Nasturus Fiction are applied or in terms of testamentary succession, if the legal requirements are met. Therefore, when considering the future protection of your unborn child or grandchild under South African inheritance law, it is important to be aware of your rights, the rights of the unborn child and what the law requires. To make sure that everything is clear and in place before you die, it will be best to consult a legal professional. Should a dispute arise after your death, the family should obtain the input of a legal professional before initiating a lawsuit or responding to a lawsuit on their own, in the best interest of the child.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.