Recently, we attended the FISA Annual General Meeting, where Dr Rika van Zyl presented on the topic of unworthiness to benefit – in life and in death.
Many people are familiar with the Roman-Dutch law maxim de bloedige hand neemt geen erf, often translated as “the bloody hand does not inherit”. In simple terms, this principle provides that a person should not benefit from the estate of someone whose death they unlawfully caused.
However, the discussion highlighted that unworthiness can extend beyond causing the death of a testator. Depending on the facts, it may also include conduct such as:
- causing or contributing to the death of the testator;
- manipulating the deceased into changing a will;
- forging a will;
- concealing or destroying a valid will;
- committing fraud in relation to estate administration; or
- acting in a manner that is contrary to public policy.
One of the most interesting points raised was that unworthiness is not only relevant after death. It can also affect benefits during a person’s lifetime, including life policies, retirement fund benefits, and trust distributions. In these situations, the courts may look beyond the legal documents and consider whether it would be fair, just and lawful for a person to receive the benefit.
For fiduciary practitioners, the takeaway is clear: technical compliance is important, but it is not always enough. We have a responsibility to look beyond the paperwork, understand the facts surrounding a benefit, and ensure that no person is enriched by their own unlawful conduct.
Written by Charlene Ludick