THE CURRENT POSITION OF FREEDOM OF TESTATION IN SOUTH AFRICA.
BY:
Submitted in partial fulfillment of the requirements of the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
RRLLB81 ASSIGNMENT02
MR LC COETZEE
(DUE DATE)
,ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone, to copy my work to pass it off
as his or her work.
4. I did not make use of another student’s work and submit it as my own.
NAME:………………………………………..
SIGNATURE…………………………………..
STUDENT NUMBER:…………………………………………….
MODULE CODE: RRLLB81
DATE:
TOPIC SELECTED:
MARK RECEIVED FOR ASSIGNMENT 01: ………%
MARK RECEIVED FOR ASSIGNMENT 02: ………%
, ABSTRACT
Freedom of testation is considered to be one of the founding principles of the
South African law of testate succession. The testator is given the freedom to
direct how their estate should devolve and free rein to dispose of their assets
as they deem fit. That is the testator may leave his or her estate to his or her
family, may disinherit them entirely in favour of his or her romantic partner or a
stranger, or may leave the estate to a charity or welfare organisation of his or
her choice before 1994, such freedom could be limited only by common law or
statutory law, more recently, such freedom has been tested against the
Constitution of the Republic of South Africa, 1996. This means that a
provision in a will cannot be enforced by the courts if it is contra bonos mores,
impossible or too vague, in conflict with the law, or is deemed to be
unconstitutional.
Giving fair consideration to the unfair discrimination provision of section 9(3)
of the Constitution of the Republic, can a court enforce a will or a trust deed
that discriminates against potential beneficiaries on account of their race,
gender, religion, or disability? Will such clauses in a will pass the
constitutional scrutiny, be justified or considered to achieve a legitimate
objective? Can potential beneficiaries or anyone who has locus standi
challenge the freedom of testation by relying on the freedoms and rights
entrenched in the Bill of Rights? It is against this backdrop that this paper
attempts to answer these questions and explore to which the court has an
impact on freedom of testation. The crux of this research is to determine
whether clauses in wills or trust instruments that differentiate between
different classes of the beneficiary can be deemed to be valid. This is done by
looking at several more recent cases that have appeared before our courts of
law.
KEYWORDS: Freedom of testation; trust deed; Constitution of the Republic of South
Africa; Maintenance of Surviving Spouses Act, Heirs, and legatees.
, LIST OF ABBREVIATIONS AND ACRONYMS
Abbreviation/Acronym meaning
HC High Court
SCA Supreme Court of Appeal
CC Constitutional Court
BCLR Butterworths Constitutional Law Reports
SALJ South African Law Journal
BY:
Submitted in partial fulfillment of the requirements of the LLB degree
BACHELOR OF LAWS
In the
SCHOOL OF LAW
UNIVERSITY OF SOUTH AFRICA
RRLLB81 ASSIGNMENT02
MR LC COETZEE
(DUE DATE)
,ACADEMIC HONESTY DECLARATION
1. I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
2. I declare that this assignment is my own, original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing. Every contribution to, and quotation in, this assignment from the
work or works of other people has been referenced according to the
prescribed style.
3. I have not allowed, and will not allow, anyone, to copy my work to pass it off
as his or her work.
4. I did not make use of another student’s work and submit it as my own.
NAME:………………………………………..
SIGNATURE…………………………………..
STUDENT NUMBER:…………………………………………….
MODULE CODE: RRLLB81
DATE:
TOPIC SELECTED:
MARK RECEIVED FOR ASSIGNMENT 01: ………%
MARK RECEIVED FOR ASSIGNMENT 02: ………%
, ABSTRACT
Freedom of testation is considered to be one of the founding principles of the
South African law of testate succession. The testator is given the freedom to
direct how their estate should devolve and free rein to dispose of their assets
as they deem fit. That is the testator may leave his or her estate to his or her
family, may disinherit them entirely in favour of his or her romantic partner or a
stranger, or may leave the estate to a charity or welfare organisation of his or
her choice before 1994, such freedom could be limited only by common law or
statutory law, more recently, such freedom has been tested against the
Constitution of the Republic of South Africa, 1996. This means that a
provision in a will cannot be enforced by the courts if it is contra bonos mores,
impossible or too vague, in conflict with the law, or is deemed to be
unconstitutional.
Giving fair consideration to the unfair discrimination provision of section 9(3)
of the Constitution of the Republic, can a court enforce a will or a trust deed
that discriminates against potential beneficiaries on account of their race,
gender, religion, or disability? Will such clauses in a will pass the
constitutional scrutiny, be justified or considered to achieve a legitimate
objective? Can potential beneficiaries or anyone who has locus standi
challenge the freedom of testation by relying on the freedoms and rights
entrenched in the Bill of Rights? It is against this backdrop that this paper
attempts to answer these questions and explore to which the court has an
impact on freedom of testation. The crux of this research is to determine
whether clauses in wills or trust instruments that differentiate between
different classes of the beneficiary can be deemed to be valid. This is done by
looking at several more recent cases that have appeared before our courts of
law.
KEYWORDS: Freedom of testation; trust deed; Constitution of the Republic of South
Africa; Maintenance of Surviving Spouses Act, Heirs, and legatees.
, LIST OF ABBREVIATIONS AND ACRONYMS
Abbreviation/Acronym meaning
HC High Court
SCA Supreme Court of Appeal
CC Constitutional Court
BCLR Butterworths Constitutional Law Reports
SALJ South African Law Journal
