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

ERF 222 : LAW OF SUCCESSION CHAPTER EIGHT : FREEDOM OF TESTATION 1. Freedom of Testation : An individual's right to make provisions in a valid will and decide how their estate is divided. 2. Voluntas Testatoris Servanda Est Principle : Th...

ERF 222 : LAW OF SUCCESSION CHAPTER EIGHT : FREEDOM OF TESTATION 1. Freedom of Testation : An individual's right to make provisions in a valid will and decide how their estate is divided. 2. Voluntas Testatoris Servanda Est Principle : The wishes of the testator in their will must be honoured. The High Court cannot alter a testator's will against their express intentions, even with a beneficiary agreement, as the court may only rectify a will under specific conditions. Schnetler v Die Meester - There are limitations on freedom of testation, including illegal bequests, public policy restrictions, and vague provisions, as the Immovable Property Act restricts a testator's power to prohibit the transfer of immovable property and the Constitution prohibits discriminatory clauses in wills. - Claims for maintenance can indirectly restrict a testator's freedom, with disinherited children and surviving spouses eligible for maintenance claims. - Generally, a testator must personally exercise their freedom of testation and cannot delegate this power, except in specific circumstances such as charitable bequests or allowing an interim rights holder to nominate beneficiaries. Limitations on Freedom of Testation Statutory Limitations Statutory provisions limit a testator's freedom of testation, with the Immovable Property (Removal or Modification of Restrictions) Act , which prohibits testators from preventing the alienation of land through long-term fideicommissa or similar provisions in their wills, and Sections 6, 7, and 8 restrict long-term provisions to two fideicommissaries, and Sections 2 and 3 allow courts to remove restrictions on immovable property if it benefits the person entitled to the property. Section 33(1) of the General Law Amendment Act : Empowers the court to authorise the alienation or mortgage of restricted immovable property for unborn beneficiaries, treating them as if they were living minors. Common Law Limitations Generally, the Courts do not enforce conditions in wills that are contrary to public policy, however, as public policy evolves over time; what was considered immoral may become acceptable, furthermore public policy is now part of the Constitution, influencing court decisions. The Minister of Education sought to remove discriminatory provisions based on the Trust Property Control Act’s authority to vary provisions conflicting with public interest, common law prohibiting illegal or immoral bequests and Constitutional provisions against discrimination. 1. The court noted that freedom of testation is not absolute; restrictions exist. 2. Discriminatory provisions based on race, gender, or religion are deemed against public policy. 3. The court recognised that provisions limiting eligibility based on race constituted unfair discrimination.  4. The court balanced freedom of testation with the right to equality under the Constitution. 5. Exceptions exist for conditions preventing remarriage for surviving spouses to protect children’s interests. 6. The principle of freedom of testation is subject to limitations based on public policy. 7. Conditions intended to dissolve existing marriages are contra bonos mores. 8. Conditions in wills that interfere with marital relationships are typically void for being contra bonos mores. Minister of Education v Syfrets Trust Ltd : A testator’s will restricted bursaries to white, non-Jewish male students. De Wayer v SPCA Johannesburg : A condition preventing marriage was ruled as contra bonos mores. King v De Jager : A will specified that property only passes to male descendants, which was challenged for being discriminatory. Ex parte Gitelson : A condition requiring security for an inheritance if the widow remarried was upheld. Levy v Schwartz : A provision requiring marriage dissolution for inheritance was ruled against public policy. Ex parte Swanevelder : The court found that conditions causing discord without intent to dissolve marriage were valid. Barclays Bank DC & O v Anderson : Provisions requiring personal occupation of land were upheld despite potential marital strain. Constitutional Limitations Section 9(3) of the Constitution : Outlines factors that cannot be used for unfair discrimination. Section 9(4) of the Constitution : Prohibits unfair discrimination based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth and applies horizontally between all natural and juristic persons. Sections 18 and 21 of the Constitution : Guarantee freedom of association, movement, and residence. Provisions that prohibit marrying based on race or faith or require a beneficiary to reside in a certain location may be deemed against public policy and invalid. Indirect Limitations Maintenance of Children 1. Testators can disinherit their children, but the duty to maintain and educate minor children remains an obligation on the estate, however, this obligation does not cease upon the testator's death and is based on the needs of the children. 2. Maintenance is determined by the child's standard of living and may continue until the child reaches adulthood, and major children who cannot support themselves are entitled to claim support from their deceased parent's estate.  3. The primary obligation to provide maintenance falls on the living parent or relatives before the deceased parent's estate is liable. 4. A child’s maintenance claim ranks after creditors but is prioritised over legatees and heirs. Ex parte Jacobs : A major daughter’s claim for maintenance was first directed to her husband; the father’s estate was only liable if the husband could not fulfil this obligation. Maintenance of the Surviving Spouse Under the Maintenance of Surviving Spouses Act, a surviving spouse has a claim against the deceased spouse’s estate for reasonable maintenance if unable to provide for themselves. Reasonable maintenance needs are assessed based on: 1. Existing and expected means, earning capacity, and financial obligations of the surviving spouse. 2. The standard of living during the marriage and the age of the surviving spouse at the time of death. The maintenance claim from a surviving spouse holds the same priority as that of a dependent child. If claims from the survivor and a dependent child compete, they are reduced proportionately. Executors can make agreements regarding the settlement of maintenance claims, including creating trusts or transferring assets. 1. Daniels v Campbell : The court ruled that a monogamous Muslim marriage qualifies a partner as a 'spouse' for inheritance and maintenance claims. 2. Hassam v Jacobs : Extended spouse to include polygamous Muslim marriages, affirming that surviving partners can inherit and claim maintenance. 3. Volks v Robinson : The court ruled that the exclusion of permanent life partners from the Maintenance of Surviving Spouses Act was not unconstitutional. 4. Bwanya v Master of the High Court : The court revised the Maintenance of Surviving Spouses Act to include partners in permanent life partnerships. Recognition of Customary Law of Succession Act : Spouse in a customary marriage recognised as a woman providing children for her spouse's household (substitute wife) and a woman married to another woman for the same purpose (woman-to-woman marriage). Civil Union Act : Recognises voluntary unions of two persons of any gender, and legal consequences of a civil union mirror those of a marriage. References to marriage in other laws also apply to civil unions, allowing civil union partners to claim maintenance and inherit under the Intestate Succession Act. 1. Marriage Act : Monogamous heterosexual spouse. 2. Civil Union Act : Monogamous heterosexual or homosexual spouse. 3. RCMA : Monogamous or polygynous customary law spouse. 4. RCLSA : Woman-to-woman spouse and substitute spouse. 5. Daniels v Campbell : Monogamous Islamic law spouse. 6. Hassam v Jacobs : Polygynous Islamic law spouse. Power of Appointment Testators have significant freedom to appoint beneficiaries in South African law, known as testamentary power, which must be exercised by the testator personally; they cannot delegate the decision-making regarding beneficiaries to others and may not allow beneficiaries to decide if they will keep property or pass it on to others. Non-delegation Rule : Testators may not delegate decision-making concerning beneficiaries to other persons. Exceptions to Non-delegation Rule 1. Bequests for Charitable Purposes : Testators can authorise beneficiaries or executors to appoint specific beneficiaries for charitable purposes. 2. Delegation to Bearers of Interim Rights : Interim right-bearers have limited rights to the testator's assets and must transfer them to others. Estate Orpen v Estate Atkinson : A fiduciary's death before the testator prevents them from exercising their power of appointment. Power of appointment was only conferred in the context of a fideicommissum, but can now also be granted to usufructuaries and trustees. Braun v Blann and Botha : The Appellate Division affirmed that trustees can have appointment powers but must select beneficiaries from a specified group. 1. If a will restricts beneficiaries to lawful issue only, extramarital children may argue such restrictions are discriminatory and invalid, thus, the courts balance the testator's freedom of testation against potential human rights infringements of beneficiaries. 2. The Constitutional protection for freedom of testation includes rights to property, dignity, and privacy, allowing testators to act within the law without necessarily treating beneficiaries equally.