Law of person summary: What is the legal position of an unborn baby?

(nasciturus) Page 11 The interest of an unborn baby

: Nasciturus fiction

*Legal personality starts at birth therefore an unborn baby is not deemed a legal subject and does not have right s, duties and capacities. (Not conceived/no first breath). *Law has taken into account that in normal course of events unborn child will eventually become legal subject + a situation may arise before childs birth which would have benefited him/her E.g. qualifying as a beneficiary under a will *Law therefore protects potential interest nasciturus. *Employing the fiction unborn baby is regarded as having been born at time of his/her conception whenever it is to his/he advantage. *Nasciturus fiction protects rights of unborn baby. *Legal position is kept in abeyance until he/she is born + acquires legal personality + or is certain that he/she will not become a legal subject. E.g. miscarried, terminated pregnancy or stillborn Requirements for nasciturus fiction to come into operation: 1. Conceived at time that benefit would have accrued to him/her. 2. Child must be born alive.

NB# fiction must be to the advantage of the nasciturus.

The field of application of the nasciturus fiction: Applied field of succession (S.A law): Intestate succession: No will. *Can only be inherited if he/she is alive at the time state falls open (person dies- delatio). -Therefore unborn child could not qualify for intestate inheritance. *Nasciturus fiction is employed to protect rights of unborn child. With aid of fictiondistribution of deceased will be postponed. (Abeyance) *Baby born alive= inherits as if he/she was born at time of deceased death.

*Baby not born alive= does not obtain rights=not considered when estate is divided. Testate succession: Will *Testate intention regarding whether unborn child should inherit is clear= testator intention are therefore carried out. E.g. 1. Testator leaves property to children or (grandchildren) who are born or still to be born = any such child born after testators death will inherit regardless of time conceived. E.g. 2. Testator leaves property to A, B, C while D has been conceived at time of testator death, but has not been born yet results in- D Will not benefit. E.g. 3 Testator does not appoint new beneficiaries by name but as members of a class (grandchildren) who was already conceived at time of testators death but was only born after testators death can also inherit.

STATUS
Law of persons: Term status: Latin: stare (to stand) -Concerned with person standing in the law -This standing is determined by all those attributes a person has+ *Condition in which he/she finds himself/herself to which the law attaches consequences. Private law= most NB attributes or factors which determine a person (Legal subject) status = -Domcile -Birth outside marriage -Youth -Physical illness -Mental illness -Intoxication -Prodigality-InsolvencyTo grasp the concept status+ implications 1. Have to understand what capacities legal subject can have. 3 most NB capacities = *Legal capacity *Capacity to act *Capacity to litigate * *Capacity to be held accountable for crimes and delicts. (Status determined by what capacities you have.) 1. Legal capacity- capacity to have rights and duties. All humans= capacity irrespective of their personal qualities. E.g mentally ill person = legal capacity.