Freedom of testation is the liberty of a testator to choose how to bequeath his/her estate, and govern how his/her property is transmitted after his/her death. The law of succession then, is at least in part concerned with the preservation of a testator’s wishes, even if it additionally serves a social function related to the family and economic structures of society. In principle South Africa propagates total freedom of testation.
The general approach in South African law is that agreements or clauses which attempt to limit freedom of testation are not enforceable. Further, once the testator’s wishes have been ascertained, a court is ordinarily bound to give effect to these wishes. Our baseline is allowing for much liberty and autonomy in the law of succession.
However, freedom of testation has never been unfettered. Both the common law and statutes, such as the Maintenance of Surviving Spouses Act 27 of 1990, impose restrictions on the testator. Bequests which are manifestly illegal or contra bonos mores (against good morals) will be regarded as invalid. Further, spouses and children may be disinherited in terms of the will but they may still have a legitimate claim for maintenance against a testator’s estate which cannot be disregarded.
There is furthermore a presumption against disinheritance, and courts will usually prefer a softer construction of a testator’s will in this respect. This is based on an assumption that a parent is not likely to disinherit a child. However, it is important to note that if it is explicit or clear in a testator’s will that a child is disinherited, then this will not constitute an impermissible exercise of freedom of testation; rather, a testator is given the liberty to lawfully do so.
South Africa gives fairly broad freedom to testators. Testators can generally dispose of their estates as they desire, subject only to certain restrictions mentioned above. Further, testators are not required to give reasons for their decisions in this regard, and are not accountable to their families for testamentary choices.
Nonetheless, the parental duty to maintain children will pass to the estate upon death, as confirmed in Carelse v Estate De Vries (1906) 23 SC 532. The minor child’s claim for maintenance is endorsed as settled law and a common law restriction on freedom of testation.
It should be noted that the child’s claim for maintenance and education is not to be confused with a legitimate portion as it does not entitle a minor to a set portion of the estate or, put differently, does not presumptively limit the testator’s ability to divide her estate as she or he desires. As such a testator could potentially disinherit a child without this impacting the common law claim the child will have against the estate.
Currently, South African law also provides for the surviving spouse to exercise a claim for maintenance against the deceased’s estate. The parental (and spousal) duty then does not merely extinguish upon death. The provision of maintenance for children gives effect to children’s rights as provided for by the Constitution, and affording this maintenance claim to protect dependants is wholly justifiable. This does not however entail that children should be entitled to a legitimate portion or forced heirship generally, as this would constitute an overly extensive constriction on freedom of testation.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)