Thabo, aged 40 years and a director of a company, and his wife Tracy, aged 38 and nutritionist in private practice, are on holiday in Thailand. Their 18 year-old daughter Sunitha remained in South Africa with her grandmother Marikie. Whilst on holiday, Thabo went swimming at a bay a few kilometres from the hotel where he had left Tracy sleeping. That same morning, a tsunami hit the shoreline in the vicinity of the hotel. Tracy did not survive; her body was found and identified. The post-mortem revealed that Tracy was four months pregnant with twin boys at the time of her death. Thabo, on the other hand, was nowhere to be found. His body was never recovered and there was no way of telling if he had died because of the tsunami or chose to simply disappear. Both Thabo and Tracy left valid wills. Thabo left all his estate to his wife, if she survived him. Tracy left her entire estate to her children if they were to survive her, and if not then to her surviving parents.

[Adapted from the scenario on p.131 Barratt et al Law of Persons and Family 2ed 2016]

1. The wording of Tracy's will stated: "I leave my entire estate to my children." The twins were named Dinesh and Tumelo. Explain the following:

- legal position with regards to the twins inheriting from Tracy (5 marks).

- 4whether the nasciturus fiction is applicable in this situation. (3 marks).