Corporate Control – Fundamental Transactions
August 31, 2018
Die beperkings op ’n testateur se testeervryheid
October 1, 2018

The restrictions on a testator’s freedom of testation

In South Africa the distribution of a person’s estate when he dies is determined according to the rules of the law of succession. Subject to certain limitations, the South African law of succession is supported by the principle of freedom of testation in terms of which a person is given considerable freedom and discretion as to how his estate should be distributed on death. 

It is important to make a distinction between a person who died with a valid will (testate) as opposed to a person who died without a will or an invalid will (intestate). 

A will is the expression of the instructions of a living person as to how assets in his estate must be distributed after his death. The written document (“the will”) must comply with the formalities as set out in the Wills Act, 7 of 1953 if it is to be approved and accepted by the Master of the High Court. If your will fails to comply with the formalities set out in the Wills Act it will be rejected by the Master of the High Court and your estate shall devolve according to the Intestate Succession Act, 81 of 1997 

The idea of freedom of testation is one of the core values of South African law and enjoys wide protection. This entails that a testator’s wish must be carried out as far as legally possible and that no High Court in South Africa will interfere without just cause. 

However, as mentioned, in certain instances a testator’s freedom is limited by the Common Law and Statutory Legislation.  

Common Law   

The courts will not enforce conditions in a will that are seen as contra bonos mores or against public policy (generally unlawful, impracticably vague or impossible provisions). 

Public policy and that which the community sees as immoral does, however, change with the times and it is therefore possible that what we saw as contra bonos mores 50 years ago is now seen as acceptable. In South Africa today, public policy is rooted in the Constitution and the fundamental values it protects. 

Statutory Limitations 

  1. In terms of The Immovable Property (Removal or Modification of Restrictions) Act, 94 of 1965, a testator cannot prevent the alienation of land by means of a long-term fideicommissa or other long-term provisions in his will.  
  2. The Maintenance of Surviving Spouse Act, 27 of 1990, determines that a surviving spouse may under certain circumstances claim for reasonable maintenance needs from the estate of a deceased spouse.   
  3. The Trust Property Control Act, 57 of 1988, authorises the High Court to alter the provisions of a testamentary trust or even terminate a testamentary trust. 
  4. In terms of The Pension Fund Act, 24 of 1956, certain benefits payable to a pension fund are excluded from the estate of a deceased member of such a fund. In terms of section 37C of the Act, 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. 

It is therefore very important to ensure that your will is up to date and valid according to our common law and statutory provisions. 

For more information on the subject or should you want to have your will drafted or revised, you are welcome to contact your relationship director or Inge Heath at inge@asl.co.za.