TESTATE

SUCCESSION
Freedom of Testation
FREEDOM OF TESTATION
 The freedom of a testator to dispose of an estate in the manner they please
 The will and the wishes of the testator must be complied with.
 This is subject to certain limitations :
 Common law
 Statutes
 Constitution
 Indirect limitations
COMMON LAW LIMITATIONS
 Courts will not enforce conditions that are contra bonos mores (against public policy)
 Public policy does change over time (now determined by the Constitution): Minister of Education v
Syfrets Trust 2006 (4) SA 205 (C)
 Provisions interfering with marital relationship :Conditions that require a beneficiary not to get
married are contra bonos mores
 Exception: not considered contra bonos mores prohibiting someone that was married from getting remarried
 If intention is to use bequest to destroy an existing marriage: Contra bonos mores (See case discussion in
textbook) In principle possible to place a restriction on who a beneficiary is allowed to marry (see case
discussion)
 Provisions interfering with freedom of movement :
 Testator may provide that a beneficiary live in a certain place or on a certain property. If clear and
unambiguous, under the common law, courts are obliged to give effect (valid and enforceable) If vague, no
effect given to it
 Ex Parte Higgs: In re Estate Rangasami
MINISTER OF EDUCATION V
SYFRETS TRUST 2006 (4) SA 205
(C)
 Mr S in a will from 1920 and later codicil created a trust that after his death would create a fund for "deserving
white, non-Jewish, male students" who wished to study overseas. 2002: Minister or Education brings application to
delete the discriminatory provisions. 3 grounds: Trust Property Control ActThe Common Law The Constitution
Offending provisions deleted through the court's common law power to delete provisions
 Courts will not give effect to a testator's direction if contrary to public policy
 Public policy changes over time and as social conditions change
 Rooted in the Constitution
 No unfair discrimination directly or indirectly on any of the listed grounds
 Court does not apply directly to facts, indirect application based on common law powers to remove provisions that
are contrary to public policy
 The provisions were unfair discrimination and therefore against public policy
 Mr S's will limited eligibility to white males of European descent and this was unfair discrimination on the grounds
of race and colour. The provision that excluded Jewish people and women is direct discrimination on grounds of
religion and gender.
STATUTORY LIMITATIONS
 Immovable Property (Removals or Modification of Restrictions) Act 94 of 1965
 Subdivision of Agricultural Land Act 70 of 1970
 Mineral and Petroleum Resources Development Act 28 of 2002
 Section 33(1) General Law Amendment Act 62 of 1955
CONSTITUTIONAL
LIMITATIONS
Constitution: embodies the changes in public policy and what would be considered contra bonos
mores
Possible for provisions in a will to be declared invalid in terms of the Constitution. Sections 9(3)
and 9(4) - horizontal application
INDIRECT LIMITATIONS
 Maintenance of Children
 Testator may disinherit their children, but their maintenance and education (minors) remains an obligation on
the estate and does not die with the testator
 Common law obligation that ends once child can support themselves Maintenance determined by standard of
living
 Possible for a major child who cannot support themselves adequately to claim support from the deceased
parent's estate
 Maintenance of surviving spouse
 Maintenance of Surviving Spouses Act 1990 - surviving spouse has a claim against the estate for provision of
reasonable maintenance until their death or remarriage insofar as the spouse is unable to provide from own
means and earnings .
 Factors: 1) amount in estate available for distribution 2) the existing and expected means, earning capacity,
financial needs and obligations of the surviving spouse 3) The standard of living of the surviving spouse
during the marriage
 Meaning of spouse is wide: Family Law
POWER OF APPOINTMENT
 The exercise of testamentary power : to appoint whoever as beneficiaries "The testator must
themselves make their will and cannot commit the discretion as to who shall be beneficiaries
under their will to others" - Special power of appointment : Beneficiaries chosen from a
certain class of persons - General power of appointment: confers on beneficiary freedom to
choose the beneficiaries
 Exceptions:
 Bequests for charitable purposes: a beneficiary, executor or administrator may be authorised to
appoint specific beneficiaries. (Trustee)
 Delegation to the bearer of an interim right: Delegation of an interim right: beneficiaries who have
limited rights to assets in estate of testator – fiduciary in a fideicommissum or usufructuary in a
usufruct.