The maxim ‘de bloedige hand neemt geen erf’ (the bloody hand does not inherit) is a precept which has formed part of our common law since the Roman times. It is generally raised as a compelling reason as to why a person, who has been found guilty of a crime by the criminal court, should be declared unworthy to inherit. However, the case of Smit v Master of High Court, Western Cape (“Smit ”)[1] involved a civil matter which required the court to determine, inter alia, whether murder was the only crime which would lead to unworthiness to inherit and what onus of proof was applicable to a civil matter to determine whether a person qualifies as unworthy of inheriting.

In Smit the Applicant was the wife of Wynand Stephanus Smit (“the deceased”). The deceased had been fatally shot in his home by intruders in 2019. The Applicant approached the court on an urgent basis seeking the Master to register a document, dated 12 January 2019, as the deceased’s will (“2019 document”). This application was brought in terms of section 8(4) of the Administration of Estates Act 66 of 1965. In terms of this section the Master may refuse to accept a document being, or purporting to be, a will until its validity is determined by the court. This application was opposed by the daughters of the deceased on the basis that the 2019 document was neither drawn up nor signed by the deceased and that the Applicant had orchestrated the deceased’s murder.

The Applicant claimed to have found the 2019 document in the desk drawer of the deceased, however she later claimed that she found it tucked into his bible, but again changed her story claiming it was presented to her by the police. This document, together with a 2018 document, provided the Applicant with a special power of attorney to act as director of the deceased’s companies, nominated her as trustee in two trusts, she was bequeathed R7 million and appointed as the executor of the deceased’s late estate.

The evidence led by the Respondents included handwriting experts and the deceased’s head of security. The handwriting experts confirmed that the documents which the Applicant purported to be the “will” of the deceased, were forgeries. The head of security testified that the Applicant had recruited him, and others, to murder the deceased and had played an active role in planning and executing the murder. However, it is important to note that the Court did not only consider the Applicant’s complicity in the deceased’s murder, but also took cognizance of the forgery in determining whether the Applicant was unworthy to inherit. Furthermore, as this was a civil matter the Court found that the onus to determine the Applicant’s unworthiness was on a balance of probabilities.

The Applicant did not challenge the evidence which was presented by the Respondents. It is trite law that where evidence is not challenged in cross-examination then it may be accepted by the court.[2] As a result thereof, the Court cannot find fault with the Respondent’s evidence. The Court emphasised that each case dealing with a person’s unworthiness to inherit should be determined on the facts and that it would be inappropriate for courts to ring-fence the grounds upon which a person can be found unworthy of inheriting. Therefore, where cases rely on the same principle, such as ‘the bloody hand does not inherit’ it does not necessarily mean that they will be decided in the same way.

After considering the evidence the Court ultimately found that the Applicant planned, executed and was instrumental in the murder of the deceased and that she had forged the various documents to attempt to gain control of the entire estate. It was these actions which disqualified her from inheriting from the deceased’s estate as well as receiving any benefit, including maintenance from the estate.

Although reliance on the maxim ‘the bloody hand does not inherit’ generally involves murder, from the above it is clear that murder is not the only crime which can lead to a person being declared unworthy of inheriting. The Court emphasises that listing specific grounds on which a beneficiary would be declared unworthy would be inappropriate as the grounds for disqualification are not static. Instead, the common law should be developed to adapt to and encompass society’s current boni mores.

By Mariska Cloete

[1] (20960/2019) [2022] ZAWCHC 56 (26 April 2022).

[2] S v Manicum 1998 2 SACR 400 N.