A client asked: My father died on 22 July 2025. He left a will but left me nothing in the Will. I am 52 years old and was the only biological child. My father never paid any maintenance or made any provision for my tertiary studies. Can I submit a claim to his estate?

Do you as an adult child have an automatic right to claim against your father’s estate simply because you are his biological child and were left out of the will?

Written by Roy Bregman, admitted attorney with over 51 years’ experience in South African succession law.

Introduction: Freedom of Testation vs. Family Expectations

A frequent question in South African inheritance law is whether an adult child can claim against a parent’s estate if they are excluded from the will. Many people assume that biological children always inherit. In fact, South African law prioritises freedom of testation, the right of an individual to dispose of their estate as they choose, subject only to limited statutory exceptions.

This article explains the legal principles, reviews relevant case law, and applies these rules to a common scenario: an adult child disinherited by their parent.

Legal Principles

Freedom of Testation

Freedom of testation is a cornerstone of South African succession law. It means a person may leave their estate to anyone of their choice, even to the exclusion of children or other family members. Courts will uphold a valid will unless:

• It contains provisions contrary to public policy or the Constitution (e.g., discriminatory clauses).
• A statutory exception applies.

Statutory Exceptions

The most notable limitation is the Maintenance of Surviving Spouses Act 27 of 1990. This Act gives a surviving spouse a right to claim reasonable maintenance from a deceased spouse’s estate if they cannot support themselves.

For children, the law distinguishes between:

• Minor children: who are entitled to claim maintenance.
• Adult children: who can only claim if they were factually dependent on the deceased at the time of death due to disability or other incapacity.

There is no automatic right for a self-supporting adult child to inherit or claim maintenance.

Case Law Discussion

South African courts consistently uphold the principle of freedom of testation. They have held that:

1. Past failures to pay maintenance cannot be converted into a claim against an estate decades later. The law does not allow retrospective compensation for parental neglect once the child is independent.
2. Adult self-supporting children have no statutory protection equivalent to that of spouses or dependent minors.
3. Only where an adult child proves ongoing dependency at the time of death (such as disability) will the court even consider a claim.

Illustrative Judgment

In one leading case, the Constitutional Court confirmed that freedom of testation may legitimately be limited by the Maintenance of Surviving Spouses Act because marriage imposes reciprocal duties of support. No such statutory duties exist for independent adult children and excluding them from a will does not violate the Constitution.

The Court also stressed that striking down wills or redistributing estates is an extreme remedy, only applied when provisions are patently unconstitutional.

Practical Implications

• If you are an adult child excluded from a will, you cannot claim from the estate simply because you are the biological child.
• If you were financially dependent due to illness or disability, you may have a limited maintenance claim, but this requires strong evidence.
• If the will contains provisions that are grossly unconstitutional (e.g., racist clauses), you may challenge those provisions—but not the general exclusion itself.

Conclusion

South African inheritance law respects the wishes of the testator. While many view disinheriting children as unfair, the law recognises that parents are not obliged to leave their estates to adult, self-supporting children.

Unless strict dependency or constitutional violations are proven, an excluded adult child has no legal claim. The safest course of action for those concerned about exclusion is proactive estate planning—discussing expectations and securing financial independence during a parent’s lifetime.