What is Freedom of Testation and why is it important?

The principle of freedom of testation states that every person may legally decide what happens to their own estate after death. Practically, this means that everyone may create a will at any time throughout their life to make their wishes and instructions known when they die. A person who makes a will is known as a testator or testatrix.

Freedom of testation is highly valued in South African law. The right to property protected by our Constitution includes the right of an owner to give instructions regarding the disposal of such property upon death. This was confirmed in the ex parte case of BOE Trust Ltd NO & Others. In the related case of in re BOE Trust Ltd, it was held that not giving due recognition to freedom of testation would ‘fly in the face of the principle of human dignity which allows the living and the dying the peace of mind of knowing that their last wishes would be respected after they have passed away’. Therefore, a testator’s wishes or instructions must be carried out upon his death except where the law restricts this freedom in some way. There are a few notable limitations on the freedom of testation.

Limitations on the freedom of testation

In South Africa, there are various sources of law including, among others, the Constitution, statutes (legislation) and the common law. Each of these sources of law place limitations on the freedom of testation.

In terms of the common law, clauses in a will that are against public policy, illegal, unduly vague or ambiguous, or entirely impractical or impossible will not be upheld by a court if challenged. Where such provisions exist, they will be treated as if they had never existed. Examples of provisions that are against public policy include those that are aimed at destroying an existing marriage or that discourage a beneficiary from marrying at all.

Various statutes also place restrictions on the freedom of testation. An example includes the Trust Property Control Act 57 of 1988, which allows a court to vary the provisions of a will that acts as a trust deed and establishes a testamentary trust if certain circumstances are present. Another example is the Maintenance of Surviving Spouses Act 27 of 1990, which allows the surviving spouse of a deceased person, under certain circumstances, to claim an advance from their spouse’s estate.

The Constitution of the Republic of South Africa, 1996 is the supreme law of South Africa. This means that any other law that is inconsistent with it is unconstitutional and invalid. The Constitution and its Bill of Rights have influenced freedom of testation in South Africa.

An important section of the Bill of Rights is the equality clause. This states that no one may discriminate unfairly against anyone else based on factors such as race, gender, pregnancy, marital status, ethnic origin, sexual orientation, age, disability, religion, belief, culture or language. It is necessary to balance freedom of testation and the right to equality. This balancing of rights becomes necessary where a condition or provision in a will disinherits or disqualifies a beneficiary due to one of the grounds listed above. To balance two rights, it is necessary to distinguish between two situations, namely a complete disinheritance and a condition attached to a bequest in a will.

Complete disinheritance

Where a testator disinherits a person entirely from his will, it is unlikely that such disinheritance may be successfully challenged. This is because of the protection afforded to freedom of testation in South African law. Our courts are hesitant to interfere with a testator’s wishes as no one has an absolute right to inherit. An example is where a testator disinherits his son or daughter entirely based on the child’s sexual orientation. In the case of Harvey NO v Crawford NO, it was held that a testator conferring benefits onto his biological grandchildren, and excluding his adopted grandchildren, was entirely lawful and did not infringe upon their constitutional right to equality.

Conditions to bequests

Where a testator includes an unfairly discriminatory condition to a bequest in a will, it may be possible to challenge such condition and have it removed entirely. An example includes where a testator makes a bequest to a charity but makes the condition that only people of a particular race group may receive benefit from the bequest. Another example is a testator who creates a benefit for his or her child but on the condition that he or she marries someone of a particular religion. In the case of King NO v De Jager, a clause in a will was found to be unconstitutional in so far as it prohibited female heirs from inheriting in terms of certain fideicommissary property bequeathed to male descendants only.

Conclusion

Freedom of testation, or the right to decide what happens to your estate upon your death, is a valued and protected part of South African law. However, like all rights, it is not absolute and is subject to various limitations by statute, common law and the Constitution.

To ensure that your will and your estate is in order and that your assets and loved ones are protected in the event of your passing, contact us today at [email protected]  or visit our website at https://marshfidelity.wpenginepowered.com to find out more.