Nasciturus Case Study

Imagine a world where a wealthy family has a large estate where the mother is pregnant with an unborn child and has two other children. When the father drew up his will which he left to his surviving spouse and his children, the unborn child had not existed at that time and therefore the unborn child was not included in the fathers will. While the mother was still pregnant the father died in a car accident leaving the unborn child with no legal benefit and therefore the unborn child is left with nothing. This is a scenario which the nasciturus fiction seeks to address. In this essay the nasciturus fiction with regards to legal subjectivity will be further discussed.

The nasciturus fiction is a legal presumption or fiction which is created …show more content…
2) Is Paul Johannes ( In the mothers womb) entitled to a share of the estate?
De Villiers J stated that that the nasciturus should be able to inherit by means of the nasciturus fiction subject to being born alive and it being an advantage to the nasciturus. He further stated that Paul Johannes is entitiled to share in the estate of the testator in equal amounts to his mother, brother and sister.
The principle that emerges from this case is that the other heirs have to wait until it is a established that the foetus is born alive before they can …show more content…
From this definition there are five elements which defines delict, one is conduct, two is wrongfulness, three is culpability or fault, four is causation which is important with regards to the fiction, five is damage or harm. Before anyone claims money all five of these elements need to be present in order to justify the claim. In the Pinchin v Santam insurance company limited the question of whether a feotus which is harmed while still in the womb as a result of an blame worthy third party as a result of delict and is later born with a physical or mental disability should pursue action for damages. The facts of this case