The Possible Impact of the Wilsnach V M [2021] 1 All SA 600 (GP) Judgment on the Right of an Absent Muslim Parent to Inherit in Terms of an Islamic Will

Abstract

The Gauteng Division of the High Court, Pretoria handed down a judgment in Wilsnach v M [2021] 1 All SA 600 (GP) (Wilsnach) during 2020, where it held that a biological father could not inherit “in the capacity of a parent” due to absence, in terms of the Intestate Succession Act 81 of 1987 on the basis he inter alia lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005 (hereafter absent parent). This article analyses the potential impact that the Wilsnach judgment could have on the right of a Muslim father to inherit in terms of an Islamic will in the event where he too has lost his rights and obligations in terms of s 18 of the Children’s Act 38 of 2005.1 An overview of the Wilsnach judgment is analysed by way of introduction. The right of a Muslim parent to inherit from their child in terms of “Islamic law” is then explored. The possible impact that the Wilsnach judgment could have on the right of a father to inherit in terms of the “Islamic will” is then investigated. The article concludes with an overall analysis of the findings and makes a recommendation as to how Islamic law consequences can be accommodated.