Freedom of testation is one of the founding principles of the South African law of testate succession. Freedom of testation is defined by some scholars as the right of an individual to dispose of his or her property on death as he or she pleases. However, a provision in a Will cannot be enforced by the courts if it is contra bonos mores (harmful to the moral welfare of society) impossible or too vague, in conflict with the law, or is deemed to be unconstitutional.
Limitations on freedom of testation
Freedom of testation is a basic right in terms of the South African law of succession. 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. 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:
a) 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 must be exhausted before any valid claim may be entertained against the deceased estate of the spouse.
b) The Matrimonial Property Act 88 of 1984
This Act points out that if a testator 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).
c) The Pension Funds Act 24 of 1956
Section 37C 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.
d) Limitations in terms of Common Law
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:
· it is generally unlawful;
· against public policy;
· immoral, or
The common law limitations were also enforced in Minister of Education and Another v Syfrets Trust Ltd NO and Another (2544/04)  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. Clauses that discriminate unfairly on the grounds of race, gender and religion are unenforceable.
In conclusion, freedom of testation remains a fundamental principle of the South African law of wills and is constitutionally guaranteed. Any limitation of freedom of testation must align with the directives of s 36 of the Constitution, 1996. Here at Rudolf Buys and Associates Attorneys we discuss fully the legal implications (and potential complications) of testamentary bequests with clients and alert clients to the dangers associated with attempts to ‘rule from the grave’, particularly where testators seek to influence testamentary beneficiaries’ intimate life choices through the impositions of conditions on testamentary benefits. We also alert clients to the fact that charitable bequests or bequests of a ‘public’ nature are open to judicial scrutiny to determine whether they pass constitutional muster. If such bequests give rise to unfair discrimination, the constitutional right to equality will likely outweigh freedom of testation in any constitutional balancing exercise.