One of the cornerstones of the law of succession in South Africa is the principle of freedom of testation. The basic principle is that the testator should be free to distribute the assets he or she collected in life to his or her surviving family members in order to care for them and ensure that they are provided for after his or her death. But freedom of testation goes beyond that in that the testator is free to determine that these assets can be distributed to whosoever the testator wishes. Our courts have also confirmed this position where it has been affirmed that a person’s wishes must be followed and that our section 25 of the Constitution protects a person’s right to dispose of their assets as they wish upon their death.
This means it is extremely difficult to contest a will successfully and have its provisions challenged. But this doesn’t mean that a testator has a totally unfettered discretion. There are in essence two broad areas in terms of which the principle of freedom of testation is limited:
1. Statutory claims
In terms of the South African common law, minor children have to be cared for and have a claim against a deceased estate of their parents. Claims of this nature also extend to a surviving spouse and the Maintenance of Surviving Spouses Act 27 of 1990 allows for claims to be instituted by a surviving spouse against the deceased estate. Accordingly, if a last will and testament excludes these dependants from an estate, they could be reinstated as beneficiaries.
Furthermore, the Pension Funds Act 24 of 1956 stipulates that the trustees of the Pension Fund must identify all possible dependants who might have a claim to a pension benefit before distributing the deceased’s share of the fund, irrespective of what the fund member states in his or her will.
2. Public policy and constitutional rights
A second limitation is where the wishes in the last will and testament of the deceased are contrary to public policy or the public morals – in other words, harmful to the welfare of society. An example hereof is found in Emma Smith Educational Fund v the University of KwaZulu-Natal and Others (2010), where the last will and testament of the deceased stated that only European girls born of British South African or Dutch South African parents could benefit from an educational fund set up in terms of the will. This case confirmed that the principle of freedom of testation when weighed up against the right to racial and gender equality afforded to an individual by the Constitution, will always come second if challenged in a court of law.
Section 13 of the Trust Property Control Act 57 of 1988 can also be used to negate discriminatory exclusions in testamentary charitable trusts. This Act empowers the High Court to change the provisions of trust instruments and wills.
A testator can therefore rule quite extensively from beyond the grave, but not completely unfettered. As executor you would be well advised to discuss any provisions that may limit the testator’s right of testation with a specialist to ensure you apply the provisions of the will correctly.