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Friday, November 24, 2006

Same-sex partners can inherit - Concourt
© 2006 Independent Online

Gay life partners are entitled to inherit from the intestate estates of their partners just as spouses do, the Constitutional Court (Concourt) ruled on Thursday.

The Concourt upheld the March ruling by the Pretoria high court that section 1(1) of the Intestate Succession Act 81 of 1987 was unconstitutional because it excluded gay life partners.

It ordered the reading in after the word "spouse", wherever it appears in that section of the Act, of the words "or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support".

This ruling was made retrospective to April 27, 1994, when the interim Constitution took effect.

The Concourt said that this amendment should in the main operate retrospectively, but would not affect cases where transfer of ownership had taken place unless there had been a legal challenge at the time on the same grounds as Gory's.

The disputed section did not provide for a permanent same-sex life partner to inherit automatically, as a spouse would, when the other partner dies without a will.

"As these partners are not legally entitled to marry, this amounts to discrimination on the listed ground of sexual orientation in terms of section 9(3) of the Constitution," wrote Judge Belinda van Heerden, in a judgment agreed to by nine other Concourt judges.

The ruling was in the case of Mark Gory vs Daniel Kolver, and arose from the death of Gory's life partner, Henry Harrison Brooks, in April 2005.

Brooks died without leaving a will and his parents appointed Kolver as the executor and claimed his estate. Gory disputed this and won an initial ruling the Pretoria high court.

The Concourt ruled that Gory was Brooks' sole intestate heir.

The Concourt order cancelled the sale of Gory and Brooks' joint home in Bezuidenhout Valley in Johannesburg, which had been registered in Brooks' name, and ordered the return of Brooks' personal property to Gory.

The Concourt ordered Kolver's removal as executor but said he should be paid for the work he had done...

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