South Africa: The Restrictions On A Testator’s Freedom Of Testation

Last Updated: 21 October 2013
Article by Deon Beachen

Most Read Contributor in South Africa, September 2018

It is necessary to make a distinction between two scenarios in South Africa i.e. where the deceased died with a valid will (testate) and where the deceased died without a valid will (intestate).

1.  Testate succession

South African law places a very high importance on the principle of freedom of testation. This means that a testator's wishes must be carried out as far as legally possible and a court will not lightly interfere with a testator's wishes. In general, a testator has almost unfettered freedom in the disposal of his assets and may also impose various, unreasonable conditions. This freedom is so strong in South Africa that it may even extend to the disinheritance of children and spouses (in certain circumstances).

A testator's freedom of testation, however, is not absolute and may be limited under the following scenarios:

1.1. Common Law limitations 

  • Some of the limitations to the freedom of testation are placed on the testator in accordance with the common law, for example, a provision in a will shall not be executed if (a) it is generally unlawful, (b) against public policy, (c) impracticably vague, or (d) impossible.
  • A testator also has the common law duty to support his minor and financially dependent children.  

1.2. Legislative limitations 

  • The Pension Funds Act 24 of 1956, in terms of which certain benefits payable by a pension fund are excluded from the estate of a deceased member of such a fund. In terms of section 37C of the Act, 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;
  • The Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965, that empowers the court to alter or amend restrictions placed by a will on immovable property;
  • The Trust Property Control Act 57 of 1988 which authorises the court to amend the provisions of a trust or even terminate the trust;
  • The Maintenance of Surviving Spouses Act 27 of 1990 that determines that a surviving spouse may under certain circumstances claim an advance for maintenance from the estate of a deceased spouse;
  • The Matrimonial Property Act 88 of 1984 which directs that if a testator is married out of community of property with application of the accrual system, then the surviving spouse may have a claim for ½ the difference between the accruals (if her estate is the smaller of the two).
  • The Constitution of the Republic of South Africa 108 of 1996. This is the supreme law of the land and any provision in a will that contradicts the spirit and object of the Constitution will be struck down as far as possible.

In Board of Executors v Benjamin Godlieb Heydenrych Testamentary Trust and Others 2012 (4) SA 103 (WCC) (6 December 2011) the Western Cape High Court held that the provision of scholarships by the testamentary trust to European boys who are members of the white population group, amounted to unfair discrimination on grounds of gender and race and in conflict with section 9(4) of the Constitution and public interest. The Court found that because the wills were executed before the advent of our democracy, the testators did not foresee that the scholarships would be rendered unconstitutional and unlawful. Furthermore, they did not foresee that the charitable purpose of the trust would be hampered by the discriminatory conditions imposed. The Court ordered that the offending provisions be struck out.

In Minister of Education and Another v Syfrets Trust Ltd NO and Another 2006 (4) SA 205 (C), a charitable trust, known as the "Scarbrow Bursary Fund Testamentary Trust" was established in terms of the will of the late Dr. Edmund William Scarbrow (the testator), who died in 1921. The trust awards bursaries to 'deserving students with limited or no means' of the University of Cape Town. However, in terms of the will, eligibility for the bursaries was restricted to persons who were of European descent, not Jewish, and not female. The validity of these provisions was challenged in the application.

The court considered the limitation of bursaries to candidates of "European descent" and found that it constituted indirect discrimination based on race and colour. The court held that where a provision in the trust infringes a constitutionally protected right to equality and freedom the offending provision may be deleted or varied by the court. Further, the court held that, 'The principle that the courts will refuse to give effect to a testator's directions which are contrary to public policy is a well -recognized common law ground limiting the principle of freedom of testation'. The court deleted the offending words on the basis of common law.

In Curators Emma Smith Educational Fund v University of Kwa-Zulu Natal and Others 2010 (6) SA 518 (SCA) in which trust income was to be applied towards the higher education of European girls born of British South African parents, the Supreme Court of Appeal confirmed the deletion of the terms "European" and "British" from the Trust instrument.

2.  Intestate Succession

South African law does not provide for statutory shares in favour of the deceased's next of kin unless the deceased died intestate. In the case where the deceased died intestate, his estate will devolve in accordance with strict, confined rules contained in the Intestate Succession Act 81 of 1987.

Pactum Successorium

The policy of our law is that persons are not permitted to regulate the succession of their assets on death by means of contract. If a person, by way of contract, seeks to dispose of his property upon death, such arrangement is invalid and unenforceable and will not be entertained by our courts.

There are only two exceptions to this rule:

a) a donatio mortis causa (a donation in contemplation of the death of the donor); and

b) pacta successoria in an antenuptial contract.

The preparation of a will has profound implications and requires the advisor to not only have expert knowledge on the subject matter but on an extensive array of legislation. It is of paramount importance to consult with a wills and estate planning expert today to ensure that your will is drafted correctly and does not fall into any category that might render it open to attack. As I always maintain, a correctly drafted will is not one that will stand up in court but one that will never find its way to court in the first place.

In the case of Raubenheimer v Raubenheimer and Others 2012 (5) SA 290 (SCA) (1 June 2012), the Supreme Court of Appeal stated that it is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills which is one of the most important documents they are ever likely to sign. The Supreme Court further stated that courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. Unfortunately, this case was yet another example.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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