I just found out I am not legally my late father's child. Can I inherit from his estate?

The long answer

First, you should find out about your adoption status. The law that applies to adoptions in South Africa is the Children’s Act (Act 38 of 2005). You can ask for access to your adoption records through the Registrar of Adoptions in Pretoria. You would need to give them the following information:

• Where you were born;

• The date you were born;

• Your full name;

• Your ID number;

• Your current address;

• The full names of your adoptive parents and their ID numbers;

• Who handled the adoption;

• Any additional information you might have to narrow down the search.

Then, regarding being a nominated beneficiary of your late father’s pension fund:

In the GEPF (Government Employees Pensions Fund) a member can nominate anyone they want to be a beneficiary, to receive whatever percentage of the benefit the member decides, provided that if the member has failed to nominate a dependant as a beneficiary, the GEPF can insist that a dependant also be made a beneficiary when the member has died. 

In terms of who qualifies for the child pension (which a child gets until they turn 22, though they must have their own bank account when they turn 18), the GEPF says the following in its handbook: “In order to be considered for the benefit, the child must be a biological or adopted child of the deceased member or pensioner. Step children, or a child who was in the care of the member or pensioner, do not qualify for the benefit unless a child must be proven to be legally adopted or a biological child or the deceased member or pensioner.”

There may be various rules, depending on the pension fund, but in a 2020 article by Janine Geldenhuys, she points out that section 1(b) (111) of the Pensions Fund Act says the following about who qualifies to be a dependant of a deceased member of the pension fund: 

 “Dependant” in relation to a member, means –

If your question is about whether you can inherit from the person you regarded as your father, it depends on whether he made a will or not.

As your parents were married in community of property, your mother would inherit 50% of their joint estate once all the debts were settled. If he made a will, and nominated you as a person who would inherit something from him, you would be entitled to inherit whatever he set down for you in his will, from the remaining 50%.

But if he did not make a will, the Intestate Succession Act applies: here the order of inheritance is surviving spouses first and then descendants. The Intestate Succession Act does not regard non-biological children as blood relatives and therefore descendants if they were not legally adopted. So, if the person you regarded as your father did not make a will, and if you were not legally adopted, you would not qualify as a descendant and therefore could not inherit.

Perhaps you could ask the Black Sash for some helpful advice – they give free paralegal advice. These are their contact details:

Helpline: 072 663 3739 or 063 610 1865

Email: help@blacksash.org.za

Wishing you the best,
Athalie