Gory v Kolver NO and Others

Mark Gory and the late Henry Harrison Brooks were partners in a permanent same-sex life partnership in which they had undertaken reciprocal duties of support. Brooks died intestate in April 2005. His parents claimed to be his intestate heirs and nominated an executor, while Gory claimed to be the sole intestate heir. Section 1(1) of the Intestate Succession Act 81 of 1987 recognised only ‘spouses’, thereby excluding permanent same-sex life partners from inheriting intestate. Gory challenged the constitutionality of this omission in the Pretoria High Court, which declared the provision unconstitutional and read words into the Act to include permanent same-sex life partners. The matter came before the Constitutional Court for confirmation of the declaration of invalidity and determination of the appropriate remedy.

The Constitutional Court confirmed the declaration of constitutional invalidity of section 1(1) of the Intestate Succession Act to the extent that it excluded permanent same-sex life partners. The Act was ordered to be read as including ‘or partner in a permanent same-sex life partnership in which the partners have undertaken reciprocal duties of support’ after the word ‘spouse’. The declaration operated retrospectively, except in respect of estates already finally wound up.

This case extended intestate succession rights to permanent same-sex life partners and closed a significant gap in South African succession law prior to the legal recognition of same-sex marriage. It reinforced the Constitutional Court’s equality jurisprudence protecting same-sex relationships and clarified the use of reading-in and retrospective relief as constitutional remedies.