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8. TESTAMENTARY SUCCESSION
8.1 Introduction and terminology; purpose of testate succession
8.2 Delegation of testamentary power
• Textbook pp 128- 130
8.3 Limitations on freedom of testation: common law and statutory
8.3.1 Constitutionality of testamentary provisions:
• Aronson v Estate Hart
• Minister of Education v Syfrets Trust Ltd NO
• Ex Parte BOE Trust Ltd
• Curators, Emma Smith Educational Fund v University of KZN
• Textbook pp 117- 123
8.3.2 Other statutes limiting freedom of testation:
• Immovable Property Act 94 of 1965
• Trust Property Control Act 57 of 1988
• Section 37C of Pension Fund Act 24 of 1956
• Textbook pp 116- 117
8.4 Possible claims against the estate
8.4.1 Maintenance of children and grandchildren:
• Textbook p 123
8.4.2 Maintenance of surviving spouses:
• Maintenance of Surviving Spouses Act 27 of 1990
• Textbook pp 123- 127
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8.1 Introduction and terminology; purpose of testate succession
What is testate succession? Succession by means of a will.
The principle of freedom of testation: It is the foundational principle of SA testate succession. The testator
has the freedom to dispose of his/her property as he/she wishes. This is the general starting off point and
as far as possible we try to give effect to the wishes of the testator.
Should you be able to disinherit people who may be dependant upon you or people you were obliged to
support while you were alive?
• Legitimate portion: the notion that close relatives of the testator are entitled to a fixed minimum
portion of the estate which they cannot be deprived of except with a good reason. Thus, some
countries adopt the approach that children and spouses are entitled to a fixed portion of the estate
and it is only in certain circumstances that they would be disqualified from inheriting e.g. a spouse
who failed to support the testator, deserted the testator or committed a crime against the testator.
Thus, SP = certain people have a right to claim from your estate.
• Freedom of testation: the notion that the testator may dispose of his property as his/she wishes. This
is the current position in SA. It gives effect to personal autonomy – testator is believed to be in the
best position to know what to do with his/her property. The social concerns of dependants are
addressed with maintenance claims.
How is the freedom of testation protected?
- A person cannot contractual limit one’s freedom of testation
- A will remains revocable until the testator’s death
- Rules on the interpretation and rectification of wills promote freedom of testation
- There is a prohibition against undue influence
- There is a rule that a person cannot delegate one’s testamentary power
* It is also argued that the right to freely dispose of one’s property is integral to the right to property
protected by s 25 of the Constitution. Thus, freedom of testation is indirectly protected by the Constitution.
8.2 Delegation of testamentary power
General rule:
• General rule: A testator must make his/her own will. He/she cannot delegate his/her will making
powers to another.
• Therefore, delegations of power are not generally allowed. This is to protect one’s freedom of
testation. A testator must him/herself make his/her will and cannot commit the discretion as to who
shall be beneficiaries under his/her will to others.
E.g. On my death, my daughter A will determine my beneficiaries and in what proportions they will inherit à
INVALID – it goes against the general rule that you must exercise your will making powers yourself.
8. TESTAMENTARY SUCCESSION
8.1 Introduction and terminology; purpose of testate succession
8.2 Delegation of testamentary power
• Textbook pp 128- 130
8.3 Limitations on freedom of testation: common law and statutory
8.3.1 Constitutionality of testamentary provisions:
• Aronson v Estate Hart
• Minister of Education v Syfrets Trust Ltd NO
• Ex Parte BOE Trust Ltd
• Curators, Emma Smith Educational Fund v University of KZN
• Textbook pp 117- 123
8.3.2 Other statutes limiting freedom of testation:
• Immovable Property Act 94 of 1965
• Trust Property Control Act 57 of 1988
• Section 37C of Pension Fund Act 24 of 1956
• Textbook pp 116- 117
8.4 Possible claims against the estate
8.4.1 Maintenance of children and grandchildren:
• Textbook p 123
8.4.2 Maintenance of surviving spouses:
• Maintenance of Surviving Spouses Act 27 of 1990
• Textbook pp 123- 127
, 2
8.1 Introduction and terminology; purpose of testate succession
What is testate succession? Succession by means of a will.
The principle of freedom of testation: It is the foundational principle of SA testate succession. The testator
has the freedom to dispose of his/her property as he/she wishes. This is the general starting off point and
as far as possible we try to give effect to the wishes of the testator.
Should you be able to disinherit people who may be dependant upon you or people you were obliged to
support while you were alive?
• Legitimate portion: the notion that close relatives of the testator are entitled to a fixed minimum
portion of the estate which they cannot be deprived of except with a good reason. Thus, some
countries adopt the approach that children and spouses are entitled to a fixed portion of the estate
and it is only in certain circumstances that they would be disqualified from inheriting e.g. a spouse
who failed to support the testator, deserted the testator or committed a crime against the testator.
Thus, SP = certain people have a right to claim from your estate.
• Freedom of testation: the notion that the testator may dispose of his property as his/she wishes. This
is the current position in SA. It gives effect to personal autonomy – testator is believed to be in the
best position to know what to do with his/her property. The social concerns of dependants are
addressed with maintenance claims.
How is the freedom of testation protected?
- A person cannot contractual limit one’s freedom of testation
- A will remains revocable until the testator’s death
- Rules on the interpretation and rectification of wills promote freedom of testation
- There is a prohibition against undue influence
- There is a rule that a person cannot delegate one’s testamentary power
* It is also argued that the right to freely dispose of one’s property is integral to the right to property
protected by s 25 of the Constitution. Thus, freedom of testation is indirectly protected by the Constitution.
8.2 Delegation of testamentary power
General rule:
• General rule: A testator must make his/her own will. He/she cannot delegate his/her will making
powers to another.
• Therefore, delegations of power are not generally allowed. This is to protect one’s freedom of
testation. A testator must him/herself make his/her will and cannot commit the discretion as to who
shall be beneficiaries under his/her will to others.
E.g. On my death, my daughter A will determine my beneficiaries and in what proportions they will inherit à
INVALID – it goes against the general rule that you must exercise your will making powers yourself.
