The History of Adoption in South Africa is rather straightforward but most of us do not know when adoptions officially started in South Africa, so here is a brief explanation of its beginnings. How to find your adoption records – click here
As South Africa was under Roman-Dutch Law it did not recognize adoption as a means of creating the legal relationship of a parent and child until 1923 and the case of Robb versus Mealey in 1899, provides insight into disputes on legal inheritance claimed by an adopted child.
Adoptions were officially promulgated on the 6th Feb 1923 when the “Adoption of Children Act 1923” commenced and was published in the Government Gazette. Anyone looking for an adoption record will not find anything officially until 1923.
Below is the extract of the case between Robb versus Mealey in 1899
Robb v Mealey’s Executor 1899 SC 133
1899. February 8.
Flynote
Privileged Will — Children — Adoption — Will not duly executed — Probate of third leaf — Ord. 15 of 1845.
Headnote
The Roman law of adoption is not in force in this Colony. The provisions of the law under which a holograph will made by a parent in favour of his children is privileged do not apply to wills made in favour of adopted children.
M. made a will which was written on three leaves of paper, each containing dispositions of property. The third leaf, which contained, inter alia, a residuary bequest, was the only leaf that was duly signed and attested. The COURT refused to declare the third leaf contained the last will and testament of M.
Case Information
This was an argument on an exception to the plaintiff’s declaration. The declaration set forth that in 1877 the plaintiff was adopted by John Mealey and Eliza Jane Mealey his wife as their daughter, and was maintained and supported by them, and by John Mealey after his wife’s death, as their only child and daughter. Mrs Mealey died on the 28th of October 1893, and John Mealey on the 22nd of March 1898. They left no issue of their marriage. On the 7th July 1897, the said John Mealey with his own hand in writing made his last holograph will, which will was duly filed in the Master’s office.
The said will was written on three leaves, and signed by the testator, the said John Mealey, at the foot or end thereof on the third leaf, in the presence of two witnesses, who there also signed in attestation of his signature in conformity with the law, but the second leaf of the will did not bear the signature of the testator, and the first and second leaves did not bear the signatures of the attesting witnesses. On account of the absence of these formalities, the Master refused to recognise the said will, and appointed the defendant executor dative of the estate of the said John Mealey.
The plaintiff contended that in so far as the said will conferred benefits upon her, as the adopted child and daughter of the testator, the said will was a good and valid will, being by law privileged as the holograph will of a father in favour of his child, but the defendant denied the plaintiff’s contention, proposed to administer the said estate according to the law of succession ab intestato, and refused to recognise the plaintiff as lawfully entitled to any part of or share in the said estate. In the alternative, the plaintiff submitted that the last leaf of the said will was valid as the last will and testament of the testator. Wherefore, the plaintiff prayed for: (a) An order declaring that the said holograph will was privileged, and was good and valid as the last will of the late John Mealey in so far as in and thereby any benefits were conferred upon the plaintiff; (b) an order setting aside the appointment of the defendant as executor dative of the estate of the late John Mealey, and declaring the plaintiff entitled to be appointed; or in the alternative, if the Court should decline to grant the aforesaid orders, then for (c) an order declaring the last leaf of the said will to be the valid last will of the late John Mealey.
The will, which was annexed to the declaration, bequeathed to the plaintiff certain landed property, £500 in cash, 106 shares in the United Boating Company at East London, the testator’s furniture, and all other goods and effects not otherwise disposed of. There were many charitable bequests. On the third leaf was a bequest of £100 to an orphanage; of £100 for the purpose of keeping the burial place of the testator’s wife in good order; and a bequest of the residue of all moneys after payment of legacies to the plaintiff in trust to distribute in her discretion among distressed widows and orphans and other charities.
The defendant excepted to the declaration as showing no cause of action.
Innes, Q.C., for the exceptor, the defendant: The Court will not extend the benefit of privileged wills beyond children. In re Herbert (11 S.C. R, p. 105); Eaton’s Case (Bach. 1875, p. 173); Steer’s Case (5 J, p. 313); and see also Voet (28, 1, 15 & 16). The benefit has been extended only to legitimate children, not to natural children. There is no machinery for adoption in the Roman-Dutch law nor in Cape law. In any case, adopted children do not succeed on intestacy. Voet (1, 7, 7); Van Leeuwen’s Commentaries (1, 13, 3); Grotius (1, 6, 1); Groenewegen, De Leg. Abr.; Institutes (1, 11). Adopted children are mere pupils. As to the alternative claim see In re Lloyd (12 S.C.R. p. 117); In re Anstey (1893, P. & D., p. 283). The first and second leaves are the integral portions of the will, the last leaf is unintelligible without the first two leaves.
Sir H. Juta, Q.C. (with him H. Jones): The doctrine of privileged wills extends to grandchildren, therefore the principle is not that it should apply only to those who would be heirs in intestacy. Van Leeuwen, Cens. For. (23, 2, 21), says that it is uncertain whether or not the privilege extends to natural children, but that Carpzovius holds that it does. The doctrine of privileged wills is based on natural affection and should apply therefore to the present case..
Innes, Q.C., in reply, discusses Voet 28, 1, 16.
Judgment
DE VILLIERS, C.J.: This is a grievously hard case. The plaintiff had been adopted by the testator and his wife and had lived with them for twenty years until the testator’s death. The testator clearly intended to make ample provision for her but, unfortunately, the will was not duly executed. It was in the handwriting of the testator and the plaintiff now contends that, as the testator’s adopted daughter, she is entitled to claim that the instrument be treated as a privileged will in so far as it makes provisions in her favour. It is a fatal objection to this contention that the law of this Colony does not recognise adoption as a means of creating the legal relationship of parent and child. Under the Roman law this relationship was created, but the Dutch law did not, in this respect, follow the Roman law. In matters of succession, the adopted child is regarded as a stranger to the adopter, so that an adopted child could not under the former law of the Colony claim the legitimate portion and cannot, under the still existing law, claim a right of succession ab intestato in respect of the adopter’s estate. It would therefore be an unwarrantable extension of the doctrine of privilege to hold that, because the plaintiff was the adopted daughter of the testator, his holograph will, although not duly attested, is valid in so far as it confers benefits on her.
The declaration further prays that the last leaf of the will be declared to be the testator’s last will. That leaf was duly signed and attested, but non constat that the bequests thereon appearing would have been made if the testator had known that the provisions on the previous leaves would have no effect. These provisions form an integral portion of the instrument and therefore, on the principle laid down in In re Lloyd (12 S.C.R. p. 117), the will must stand or fall as a whole. The exception must be allowed but the costs may fairly come out of the estate.
BUCHANAN, J., and MAASDORP, J., concurred.[Plaintiff’s Attorneys, FINDLAY & TAIT.]
[Defendant’s Attorneys, FAIRBRIDGE, ARDERNE & LAWTON.]
