Imagine this scenario …
A man has been in a marriage for several years. However, he and his wife do not have a relationship. They sleep in different bedrooms, lead separate lives and are no longer in love.
They have not had any children during their marriage. The man has a mistress who he sees almost every day.
The mistress recently had a son and he pays for all of this child’s expenses. He also has a very positive relationship with this child and they spend a lot of time together as a family. After four years of having this affair, the man unexpectedly passes away.
His last will and testament had not been updated and as his will stands, his wife will inherit everything.
The interesting legal question in this regard is whether or not the man’s mistress and child have any rights to his estate. Attorney Claire Waldeck explained the legal answer to this question.
“The short answer to this question is that the law does not protect the mistress in the aforementioned scenario,” said Waldeck. She further explained that, in South Africa, the law of succession governs who is entitled to inherit from a deceased estate. Waldeck added that the Surviving Spouses Act entitles a child to inherit but not a mistress.
“The best interests of the child are always considered in our courts,” said Waldeck. She went on to say that all parents have to provide for the maintenance of his or her dependent children and if no provision is made for this in the will, the children concerned can claim from the estate.
The above scenario involves a will, however, there are circumstances where there is no will. “The scenario is slightly different in circumstances where there is no will and the law provides a certain specific order that must be followed to determine who may inherit under the will. Illegitimate and adoptive children are regarded as the deceased’s children and have a right to inherit from the deceased estate directly,” said Waldeck.
Waldeck reiterated that girlfriends and mistresses are not recognised as having a right to inherit. Therefore, the law looks out for the children of an affair and the best interests of the child are considered. However, mistresses need to start dropping hints about a man’s will quite early in the relationship if she wants to inherit anything in the event he should pass away unexpectedly.
