Your Will and the Law: The Limits of Freedom of Testation

September is Wills Month in South Africa. This reminds us of the importance of having a valid Will in place. A valid Will allows you to determine how and to who your assets will be distributed to upon your death.

Freedom of Testation

Our Constitution is founded on fundamental values such as human dignity, equality and freedom. From these, the  freedom of testation is provided: “a person’s right to dispose of their assets upon their death, as they wish.” However, this freedom is not absolute, it is limited and must be exercised within the confines of the law.

What Happens When the Freedom of Testation Clashes with the Law?

This raises an important question: “What happens if the deceased’s freedom of testation clashes with the Constitution or includes unlawful provisions,  will the courts still uphold and enforce the wishes of the deceased?”  This question was addressed in the Constitutional Court case King and Others NNO v De Jager and Others 2021 (4) SA 1 (CC).

The case involved a testamentary provision in a joint will executed by Mr & Mrs De Jager in 1902 which stipulated that their properties will be inherited by their children and on the death of their children, those properties could only be inherited by male descendants.

This continued until 2015 on the death of one of the grandsons who died with no male descendants and his daughters were unable to inherit his share of the properties. This prompted a legal dispute over the enforceability of this testamentary provision.

The Constitutional Court was tasked with determining whether such a testamentary provision violated constitutional principles, particularly the right to equality. The Court held that freedom of testation is not unlimited and must yield where it conflicts with constitutional values, such as equality and human dignity. Consequently, the Court declared that the clause excluding female heirs based on their gender was unconstitutional and unenforceable.

This case emphasised two key points:

• Freedom of testation important as it is must be exercised lawfully.

• Heirs do not have an automatic right to inherit unless a valid Will or the law entitles them to do so.

Why this case is important

This case highlights that you may leave your assets to anyone you choose but cannot include discriminatory or terms that violate the law.

This Wills month, we welcome you to consult our offices. We will assist you by drafting a Will that reflects both your wishes and our constitutional democracy. That way on your death, your wishes will not only be respected but will also be enforceable.

Written by: Mpho Molapo
Moderated and approved by: Rohula Kgabu

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