Freedom of Testation and Its Limitations
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Questions and Answers

Which principle mandates that a testator's wishes in their will must be honored?

  • Freedom of Testation Principle
  • Immovable Property Principle
  • General Law Amendment Principle
  • Voluntas Testatoris Servanda Est Principle (correct)

    • The court can alter a testator's will even if it violates their express intentions if all beneficiaries agree.

    False

    What must a testator generally do to exercise their freedom of testation?

    Personally exercise their rights

    Conditions in wills that are contrary to _____ will generally not be enforced by the courts.

    <p>public policy</p> Signup and view all the answers

    Match the following concepts with their corresponding descriptions:

    <p>Freedom of Testation = Right to determine estate division Immovable Property Act = Restrictions on property transfer in wills General Law Amendment Act = Court powers regarding immovable property Disinheritance = Claims for maintenance by family members</p> Signup and view all the answers

    What can indirectly restrict a testator's freedom?

    <p>Claims for maintenance</p> Signup and view all the answers

    A testator can delegate their power of testation to any beneficiary.

    <p>False</p> Signup and view all the answers

    Section 33(1) of the General Law Amendment Act empowers the court to authorize the _____ of restricted immovable property for unborn beneficiaries.

    <p>alienation or mortgage</p> Signup and view all the answers

    Which of the following statements about freedom of testation is correct?

    <p>It can be limited by public policy.</p> Signup and view all the answers

    Discriminatory provisions based on gender are permissible under the principle of freedom of testation.

    <p>False</p> Signup and view all the answers

    What limit does the Constitution impose regarding unfair discrimination?

    <p>It prohibits unfair discrimination based on various factors including race, gender, and religion.</p> Signup and view all the answers

    Provisions that attempt to limit eligibility based on _____ are considered as unfair discrimination.

    <p>race</p> Signup and view all the answers

    Match the following cases with their outcomes:

    <p>Minister of Education v Syfrets Trust Ltd = Restricted bursaries to white, non-Jewish male students De Wayer v SPCA Johannesburg = Condition preventing marriage ruled as contra bonos mores King v De Jager = Property only passes to male descendants Ex parte Gitelson = Condition requiring security for inheritance upheld</p> Signup and view all the answers

    Which of the following is considered a contra bonos mores condition?

    <p>Conditions requiring marriage dissolution for inheritance.</p> Signup and view all the answers

    Conditions that interfere with marital relationships are typically considered valid.

    <p>False</p> Signup and view all the answers

    What does Section 9(4) of the Constitution prohibit?

    <p>Unfair discrimination based on various factors.</p> Signup and view all the answers

    Which of the following acts recognizes voluntary unions of two persons of any gender?

    <p>Civil Union Act</p> Signup and view all the answers

    The Non-delegation Rule allows testators to delegate decision-making regarding beneficiaries to others.

    <p>False</p> Signup and view all the answers

    What is recognized as a substitute wife under the Recognition of Customary Law of Succession Act?

    <p>A woman providing children for her spouse's household</p> Signup and view all the answers

    In South African law, testamentary power allows testators to appoint __________ directly.

    <p>beneficiaries</p> Signup and view all the answers

    Match the following legal cases with their respective contexts:

    <p>Daniels v Campbell = Monogamous Islamic law spouse Hassam v Jacobs = Polygynous Islamic law spouse Estate Orpen v Estate Atkinson = Fiduciary's death preventing power of appointment Braun v Blann and Botha = Trustees can have appointment powers</p> Signup and view all the answers

    What is the primary obligation for the maintenance of minor children after a testator's death?

    <p>The living parent or relatives</p> Signup and view all the answers

    Which act specifically deals with partners in permanent life partnerships?

    <p>Maintenance of Surviving Spouses Act</p> Signup and view all the answers

    A surviving spouse's maintenance claim is prioritized equally with that of a dependent child.

    <p>True</p> Signup and view all the answers

    The Civil Union Act permits polygamous unions.

    <p>False</p> Signup and view all the answers

    In what scenario can a major child claim support from their deceased parent's estate?

    <p>If they cannot support themselves.</p> Signup and view all the answers

    What is the primary limitation set by the Non-delegation Rule for testators?

    <p>Testators cannot delegate decision-making concerning beneficiaries.</p> Signup and view all the answers

    A child’s maintenance claim ranks after __________ but is prioritised over legatees and heirs.

    <p>creditors</p> Signup and view all the answers

    Which case extended the definition of 'spouse' to include polygamous Muslim marriages?

    <p>Hassam v Jacobs</p> Signup and view all the answers

    What factors are considered in assessing reasonable maintenance needs for a surviving spouse?

    <p>Existing and expected means, earning capacity, and financial obligations</p> Signup and view all the answers

    Match the following cases with their outcomes related to maintenance and inheritance:

    <p>Daniels v Campbell = Monogamous Muslim marriage qualifies a partner as 'spouse' Hassam v Jacobs = Extended spouse to include polygamous Muslim marriages Volks v Robinson = Exclusion of permanent life partners not unconstitutional Ex parte Jacobs = Maintenance claim directed to husband first</p> Signup and view all the answers

    Maintenance obligations for minor children are based on the child's standard of __________.

    <p>living</p> Signup and view all the answers

    Study Notes

    Freedom of Testation

    • Testators (those making a will) have the right to determine how their estate is divided.
    • This right is based on the principle of Voluntas Testatoris Servanda Est - the testator's wishes must be upheld.
    • Courts cannot alter a will against the testator's clear intentions, even with beneficiary agreements.

    Limitations on Freedom of Testation

    • Statutory Limitations: The Immovable Property (Removal or Modification of Restrictions) Act restricts how property can be bequeathed. Courts can remove restrictions on immovable property if it benefits the entitled person.
    • Common Law Limitations: Provisions in a will against public policy will not be enforced, and discriminatory provisions are considered against public policy.
    • Constitutional Limitations: The Constitution prohibits unfair discrimination based on race, gender, sex, etc. Provisions that restrict marriage based on race or faith or require a specific location for residence are likely invalid.

    Indirect Limitations

    • Maintenance of Children: Testators can disinherit children, but the estate remains obligated to ensure their maintenance and education, which continues until adulthood.
    • Maintenance of the Surviving Spouse: The Maintenance of Surviving Spouses Act provides a claim for reasonable maintenance to a surviving spouse unable to support themselves. This claim is considered equal to that of a dependent child.

    Recognition of Marriage and Partnerships for Inheritance and Maintenance

    • Civil Union Act: Recognizes voluntary unions of two persons of any gender, with the same legal consequences as marriage, allowing partners to claim maintenance and inherit.
    • RCLSA (Recognition of Customary Law of Succession Act): Recognizes "woman-to-woman spouse" and "substitute spouse" in customary marriages, granting them inheritable and maintenance rights.

    Power of Appointment

    • While testators have significant freedom to appoint beneficiaries, they cannot delegate this decision to others.
    • Exceptions to Non-Delegation:
      • Bequests for Charitable Purposes: Testators can authorize beneficiaries or executors to appoint specific beneficiaries for charitable purposes.
      • Delegation to Bearers of Interim Rights: Interim right-holders have limited rights to the testator's assets and must transfer them to others.

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    Related Documents

    ERF 222: Law of Succession Chapter Eight: Freedom of Testation PDF

    Description

    This quiz explores the principles of freedom of testation, focusing on the testator's rights and the limitations imposed by statutory, common law, and constitutional factors. Understand how the law upholds or restricts the distribution of an estate based on various regulations.

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