LIMITING THE RIGHT OF FREEDOM OF TESTATION IN MODERN SOUTH
AFRICAN LAW
By
Submitted in partial fulfilment of the requirements for the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
RRLLB81 ASSIGNMENT 03
PORTFOLIO EXAMINATION
MR LC COETZEE
2021
ACADEMIC HONESTY DECLARATION
1
,ABSTRACT
In South African law, a last will and testament is executed in a manner prescribed by
the law by a person, called a testator, regarding the disposition of property within
their power to become operational after his or her death. However, common law and
statutory law like the Constitution of the Republic of South Africa, 1996 has placed a
limitation on the freedom of testation. The limitation may not violate public policies,
be contra bonos mores, impossible to carry out or too vague, be unlawful or
unconstitutional. In terms of Section 13 of the Property Act 57 of 1988, a court has
the power to vary or delete a provision in a will if it is in conflict with the public’s
interest, prejudices the beneficiaries, cannot be fulfilled based upon the objectives of
the founder, it is in violation of the common law principles or contains anti-
discriminatory provisions. The question which arises from these lawful principles is
whether it is possible for the courts to infringe a testator’s last testament.
KEYWORDS
Freedom of testation
Principles of common law
Limitation on freedom of testation
Discriminatory bequests
Fundamental rights
2
, LIST OF ABBREVIATIONS AND ACRONYMS
Stell LR- Stellenbosch Law Review
SCA- Supreme Court of Appeal
WCC- Western Cape, Cape Town
PELJ- Potchefstroom Electronic Law Journal
C- Chancellor
ZACC- Constitutional Court of South Africa
ZAWCHC- Western Cape High Court of South Africa
3
AFRICAN LAW
By
Submitted in partial fulfilment of the requirements for the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
RRLLB81 ASSIGNMENT 03
PORTFOLIO EXAMINATION
MR LC COETZEE
2021
ACADEMIC HONESTY DECLARATION
1
,ABSTRACT
In South African law, a last will and testament is executed in a manner prescribed by
the law by a person, called a testator, regarding the disposition of property within
their power to become operational after his or her death. However, common law and
statutory law like the Constitution of the Republic of South Africa, 1996 has placed a
limitation on the freedom of testation. The limitation may not violate public policies,
be contra bonos mores, impossible to carry out or too vague, be unlawful or
unconstitutional. In terms of Section 13 of the Property Act 57 of 1988, a court has
the power to vary or delete a provision in a will if it is in conflict with the public’s
interest, prejudices the beneficiaries, cannot be fulfilled based upon the objectives of
the founder, it is in violation of the common law principles or contains anti-
discriminatory provisions. The question which arises from these lawful principles is
whether it is possible for the courts to infringe a testator’s last testament.
KEYWORDS
Freedom of testation
Principles of common law
Limitation on freedom of testation
Discriminatory bequests
Fundamental rights
2
, LIST OF ABBREVIATIONS AND ACRONYMS
Stell LR- Stellenbosch Law Review
SCA- Supreme Court of Appeal
WCC- Western Cape, Cape Town
PELJ- Potchefstroom Electronic Law Journal
C- Chancellor
ZACC- Constitutional Court of South Africa
ZAWCHC- Western Cape High Court of South Africa
3
