NEW LAW OF SUCCESSION CASES 2022

Chapter 8: Freedom of testation

King v De Jager 2021 (4) SA 1 (CC)

In King v De Jager1 a will executed in 1902 provided that certain property should only
pass to male descendants of the testators by way of a fideicommissum. 2 One of the
fiduciaries had only left female descendants and they claimed that the provision was
discriminatory and unconstitutional. The court summed the legal issue up in a very
appropriate manner:3

At its core, this application concerns a novel issue whether and to

what extent a court may encroach on freedom of testation, through
the vehicle of public policy, in the context of private wills with unfair
discriminatory bequests against unknown descendants on the sole
basis of immutable characteristics. This matter calls on this court to
grapple with the perplexing question of how to reconcile the
fundamental right to equality and the primacy of freedom of
testation in the context of private wills. This question must be
answered through the lens of public policy against the backdrop of
our constitutional democracy.

The court held that section 39(2) of the Constitution obliges courts to develop the
common law to 'promote the spirit, purport and objects of the Bill of Rights' 4 and also
referred to section 173 of the Constitution which gives the court the power to develop
the common law in the interests of justice. The court further discussed freedom of
testation and its protection by the Constitution as alluded to in the Syfrets case and
endorses the view held in that case, that limiting freedom of testation by not
enforcing discriminatory testamentary provisions based on public policy, is not
arbitrary deprivation of freedom of testation. The court emphasises that freedom of
testation is protected by the Constitution and that public policy forms an integral part
of this freedom.5

As a result, the court found that it was common cause that the provision in the will
was discriminatory, but it also amounted to unfair discrimination as the testators had

1
2021 (4) SA 1 (CC).
2
The litigants complied with the Immovable Property (Removal or Modification of Restrictions) Act
94 of 1965 in that they were the last generation allowed in a fideicommissum according to this act.
3
2021 (4) SA 1 (CC) at par [1].
4
2021 (4) SA 1 (CC) at par [42]
5
2021 (4) SA 1 (CC) at par [69-70]
excluded further generations of beneficiaries that were unknown to them, simply
because they were women:

It is the 'unknown lineal descendants' element of this bequest,

along with other elements discussed above, that weighs in the
direction of favouring the right to non-discrimination over absolute
freedom of testation in cases like these. It can never accord with
public policy for a testator, even in the private sphere, to
discriminate against lineal descendants unknown to her or him
purely on the ground of gender. No privacy or property right
considerations can ever trump that; that is simply the sort of
discrimination that our present-day public policy cannot
countenance.6

The offending provision was consequently declared to be against public policy and
regarded as never having been written. The court, however, declared that the
judgement should not be of retrospective effect as it would serve no purpose to a
generation of women who had already passed on.

Wilkinson v Crawford NO 2021 (4) SA 323 (CC)

In Wilkinson v Crawford7 certain words in a trust deed had to be interpreted in order

to decide whether the adopted children of the trust founder’s daughter could share
in the trust capital upon the daughter’s death. These words were: 'children',
'descendants', 'issue' and 'legal descendants' and the question was whether these
words excluded adopted children.

With reference to the King case above, the Court held that while freedom of
testation was central to testate succession, it was limited to the extent that any
clause of a testamentary instrument that was contrary to public policy was
unenforceable.8 As a result, it is not necessary to develop the common law once it
has been found that a provision in a will is unfairly discriminatory. 9

The Court reiterates that freedom of testation itself is constitutionally protected as it

implicates the rights to property, dignity and privacy. This means that a testator
may decide to exclude some of his or her children from inheriting their property.
The Court quotes from the King case:10

6
2021 (4) SA 1 (CC) at par [84]
7
2021 (4) SA 323 (CC).
8
2021 (4) SA 323 (CC) at par [69].
9
2021 (4) SA 323 (CC) at par [75].
10
2021 (4) SA 323 (CC) at par [75].
 [This] does not, without more, amount to a breach of the
Constitution or public policy. Nor does the fact that she may have
bequeathed the property to them in unequal shares or had decided
to disinherit all her children. The Constitution does not oblige
testators to treat their children equally. So long as what she had
done, in disposing of her property by a will, does not constitute
unfair discrimination, it is permitted by freedom of testation if she
had acted within the law.11

The majority decision of the Court held that the words in the trust deed which
excluded adopted children, unfairly discriminated against the adopted children on
the basis of their birth, or alternatively on the analogous ground of adoption status
and were therefore against public policy and unenforceable. 12

The Court further held that although a private trust was subject to lesser scrutiny
than a public one, private trusts were nonetheless subject to the limitation that any
clauses thereof which were contrary to public policy were unenforceable. 13

The Court consequently held that it is unfair to discriminate against adopted

children by virtue of their adopted status and their exclusion from the interpretation
of the words ‘children’, ‘issue’, ‘descendants’ and ‘legal descendants’ in a will
constituted unfair discrimination, was contrary to public policy and unenforceable.

Chapter 2: Intestate Succession and Chapter 8: Freedom of

testation

Laubscher v Duplan 2017 (2) SA 264 (CC)

In Laubscher v Duplan the question was who was entitled to inherit the estate of the
deceased who had died intestate. The parties who had contested the inheritance,
was the deceased’s brother who was his closest surviving blood relation and the
deceased’s surviving partner who had lived with the deceased until his death in a
permanent same-sex relationship in which the parties had undertaken reciprocal
duties of support. The deceased and his partner had not entered into a marriage or
partnership pursuant to the provisions of the Civil Union Act. 14

11
King v De Jager 2021 (4) SA 1 (CC) at par [154].
12
2021 (4) SA 323 (CC) at par [98].
13
2021 (4) SA 323 (CC) at par [73].
14
17 of 2006.
The court held that same-sex partners in unformalised relationships will continue to
enjoy intestate succession rights unless and until Parliament specifically amends the
Intestate Succession Act15 and thus confirmed that the word ‘spouseʼ includes a
partner in a permanent same sex life partnership where partners have undertaken a
reciprocal duty to support each other.

Bwanya v Master of the High Court, Cape Town 2022 (4) BCLR 410 (CC):

In Bwanya v The Master of the High Court, Cape Town,16 a woman involved in a
permanent life partnership with the deceased who had died intestate, brought an
application before the Western Cape High Court for declarations of constitutional
invalidity with regards to the Maintenance of Surviving Spouses Act as well as the
Intestate Succession Act.

The applicant challenged the definition of ‘survivor’ in the Maintenance of Surviving

Spouses Act in that it effectively excludes partners in a permanent heterosexual life
partnership in which the partners had undertaken reciprocal duties of support from a
claim for maintenance in terms of this Act. Section 1 of this Act simply defines a
‘survivor’ who is entitled to maintenance as a ‘surviving spouse in a marriage17
dissolved by death’.

The applicant further applied for a declaration that section 1(1) of the Intestate
Succession Act is unconstitutional because it excludes surviving partners in a
permanent heterosexual life partnership in which the partners had undertaken
reciprocal duties of support from inheriting in terms of the Intestate Succession Act.

The Western Cape High Court was bound by the Constitutional Court decision in
Volks v Robinson18 and could therefore not declare the Maintenance of Surviving
Spouses Act unconstitutional. However, with regard to the Intestate Succession Act,
the Court held that the act was unconstitutional as it violated the equality clause
(section 9) and the dignity clause (section 10) of the Bill of Rights. This Court
ordered that the following words be read into section 1(1) of the Intestate Succession
Act after the word ‘spouse’, wherever it appears in the section: ‘or a partner in a
permanent opposite-sex19 life partnership in which the partners had undertaken
reciprocal duties of support’.

The Constitutional Court20 confirmed the constitutional invalidity of section 1(1) of the
Intestate Succession Act because it discriminated against people in permanent life
15
The Court therefore confirmed the decision in Gory v Kolver 2007 (4) SA 97 (CC).
16
2021 (1) SA 138 (WCC).
17
Emphasis added.
18
2005 (5) BCLR 446 (CC). See ch 8 for a discussion of the facts of the case.
19
See the decision of the Constitutional Court below in this regard.
20
Bwanya v The Master of The High Court 2022 (3) SA 250 (CC).
partnerships on the basis of marital status. The Court held that the following words
should be read into section 1(1) of the Intestate Succession Act after the word
‘spouse’, wherever it appears in that section: ‘or partner in a permanent life
partnership in which the partners have undertaken reciprocal duties of support’. Note
that the Court here extended the application of the section by not inserting the words
‘opposite sex’ as the High Court had done. These words would have restricted the
ambit of the order.

With regard to the Maintenance of Surviving Spouses Act, the Court overturned its
former decision in Volks v Robinson and held21 that section 1 of the Act is to be
read as though it included the following at the end of the existing definition:
(a) ‘Spouse’ for the purposes of this Act shall include a person in a
permanent life partnership in which the partners undertook
reciprocal duties of support;
(b) ‘Marriage’ for the purposes of this Act shall include a permanent
life partnership in which the partners undertook reciprocal duties of
support.

21
At par [4].