A person who causes the death of another is not entitled to inherit from the estate of the person he has killed. This rule finds application in the Roman-Dutch maxim, de bloedige hand neemt geen erf [the bloody hand cannot inherit].
A question arises whether the bloody hand maxim can be extended to matrimonial property law in cases where spouses are married in community of property. Where spouses are married in community of property, the surviving spouse is automatically entitled to a half-share of the joint estate – this is because the spouses are co-owners of the joint estate, and not because of the rules of succession. A problem arises where one spouse is unworthy to inherit, but still entitled to a half-share of the joint estate.
Examining case law does not provide a satisfactory answer.
In the case of Ex Parte Vonzell 1953 1 SA (C), the Court held that the principle that prevented a murderer to benefit from the estate of his victim does not mean that he cannot receive his share of the property which accrued to him at the time of marriage. The Court goes on to say that there is no rule in our law which deprives a person who had murdered his spouse of his share of the joint estate since the murderer does not receive the benefit from the estate of the deceased, but rather because of the marriage in community of property.
In the matter of Nell v Nell 1976 2 SA (T) the wife murdered her husband. The couple were married in community of property. The Court had to decide whether the wife would be entitled to her half-share of the estate by virtue of their marriage in community of property. The Court found in favor of the wife and held that she is entitled to receive her half-share of the joint estate. The Court did however exclude the proceeds of life policies on the life of her late husband.
Severe criticism was levied against the Vonzell and Nell decisions, especially since a spouse in divorce proceedings can obtain a forfeiture order of matrimonial benefits, but once murdered he or she cannot. The conflict between the existing matrimonial property system and the unworthy principle remains unsolved. Perhaps the time has come for reasonableness, fairness and public policy to be considered as factors when determining whether a spouse should be declared unworthy to receive his or her half-share of the estate as a result of his or her own wrongdoing.
