Freedom of testation is a basic right in terms of the South African law of succession and enables a testator (or testatrix) to bequeath assets in a Will as they please. In South Africa, a person can leave his or her assets to whoever they like, this is called “freedom of testation “. If a person dies with a valid Will, he or she dies “testate”, and without a valid Will, he or she dies “intestate”. However, this freedom is not completely unrestricted. Limitations are based on social justice, public policy and economic considerations and are found in statutory and common law principles.

This article will look at how these limitations are viewed in terms of common law, South African legislation and case law.

Limitations in terms of South African Legislation

Even though freedom of testation allows an individual to freely express his/her wishes in their Will, it can however impact other Acts in South African law. The following Acts need to be taken into consideration when setting up your Will:

Sub-Division of Agricultural Land Act 70 of 1970

Section 3 of the Act limits the transferability of agricultural (farm) property to more than one person without the consent of the Minister of Agriculture. This Act stipulates that agricultural property devolving to two or more beneficiaries cannot be transferred to the beneficiaries jointly or in undivided shares without the consent of the Minister. 

Maintenance of Surviving Spouse Act 27 of 1990

The Act stipulates that the surviving spouse of a marriage dissolved by death has a claim against the estate of the deceased spouse for his/her reasonable maintenance needs, insofar as he/she is unable to provide for such needs from his/her own means or earnings. The survivor’s own means and earnings have to be exhausted before any valid claim may be entertained against the deceased estate of the spouse. In addition, section 3 of the Act sets out the requirements that needs to be considered when determining the extent of “reasonable maintenance needs”:

  • the amount in the deceased estate available for distribution to heirs and legatees
  • the existing and expected means, earning capacity, financial needs and obligations of the survivor
  • the existence and life span of the marriage
  • the standard of living of the survivor during the existence of the marriage
  • the survivor’s age at date of death

See Kruger v Gross and another (603/08) [2009] ZASCA 105

The Matrimonial Property Act 88 of 1984

This Act directs that if a testator/testatrix is married out of community of property with the application of the accrual system, then the surviving spouse may have a claim for half of the difference between the accruals (if his/her estate is the smaller of the two).

The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965

Section 6 of the Act limits the number of Fideicommisa (gifts of property) that may be created in respect of immovable property, only two successive fideicommissaries are permitted in terms of the Act, i.e. the property will be transferred to the third beneficiary who will then acquire full ownership notwithstanding the creation of subsequent fideicommissa in the Will. The prohibition only applies to immovable property. This limitation basically empowers the court to alter or amend restrictions placed by a Will on immovable property.

The Pension Funds Act 24 of 1956

Section 37 C of the Act provides that any benefit payable by a Pension, Provident or Retirement Annuity Fund in respect of a deceased member does not form part of the member’s estate. The Act stipulates that the trustees of the fund must follow the requirements for the payment of a death benefit and cannot merely follow the beneficiary nomination made by the deceased member.

Limitations in terms of Common Law

Some of the limitations to the freedom of testation are placed on the testator/testatrix in accordance with the common law, for example, a provision in a Will shall not be executed if:

  • -it is generally unlawful
  • against public policy
  • immoral, or
  • impossible.

See Oosthuizen v Bank Windhoek Ltd NO 1991 (1) SA 849 (NHC)

The common law limitations were also enforced in Minister of Education and Another v Syfrets Trust Ltd NO and Another (2544/04) [2006] ZAWCHC 65. This case removed the discriminating provisions of the Trust. The Testamentary Trust provided for bursaries to students of European descent excluding Jews and females. The Court determined that public policy was infringed and that the limiting provisions constituted discrimination based on race and gender and was unfair to public policy. Furthermore, the Court held that it was empowered, in terms of the existing principles of the Common Law, to order the amendment of the Trust Deed by deleting the offending provisions from the Will.

The limitations listed above do not mean that the principle of freedom of testation is being negated or ignored. Only in certain circumstances will the law override the freedom of testation enjoyed by the testator/testatrix. Clauses that seek to circumvent the provisions of the various statutes or discriminate unfairly on the grounds of race, gender and religion are unenforceable. When drafting your Will, we would recommend that you take cognizance of the above in framing your bequests.

Sivenathi Nyangane

Legal Advisor & Trust Administrator, Johannesburg

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