Deceased Estates

Limitation on Freedom of Testation

Posted 17 October 2023

Tebogo Seforo (Candidate Attorney)

Testators are given freedom to direct how their estate should devolve and the freedom to dispose of their assets as they deem fit. This has resulted in the notion that effect must be given to the expressed wishes of the testator.

However, certain statutes place some restrictions and limitations on a testator’s freedom to execute a Will. Prior to 1994, such freedom could be limited by the common law or statutory law. However, more recently such freedom has come to be tested against the Constitution of South Africa.

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. Having regard to the unfair discrimination provisions contained in section 9(3) of the Constitution, a court will not enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability.

In Minister of Education and Another v Syfrets Trust Ltd and Another, 2006, the testamentary trust which provided for bursaries for students of European descent excluding Jews and females, the court found that the current public policy and not that which prevailed in 1920 when the will was executed was relevant and that the limiting provisions constituted discrimination based on race and gender and was unfair to public policy.

In addition, certain statutes also place some restrictions and limitations on a testator’s freedom to execute a will, for example:

  • Agricultural (Farm) Property:

The provisions of the Sub-Division of Agricultural Land Act, 70 of 1970, limit the transferability of agricultural (farm) property to more than one person without the consent of the Minister of Agriculture. Therefore, agricultural property devolving by way of a will on two or more beneficiaries cannot be shared without the consent of the minister. A redistribution agreement may therefore need to be concluded or the property may need to be sold.

  • Proceeds from pension funds (Government pension funds included):

Section 37C of the Pensions Fund Act, 24 of 1956, provides that any benefit payable by a pension fund, provident fund or retirement annuity fund in respect of a deceased member does not form part of the member’s estate. All pre-retirement products, including pension, provident, preservation and retirement annuity funds are regulated by the Pension Funds Act, which includes the provisions of Section 37C. The main purpose of this section is to ensure that those people who were financially dependent on the deceased member are provided for financially, regardless of whether a legal duty of support existed or not.

  • Government Employee Pension Law, 1996:

The proceeds of Government Pension Funds are similarly excluded. In Greyling v GEPF AO the court ruled that a self-supporting parent is interpreted as being included in the definition of dependant.

  • Maintenance of Surviving Spouses Act No.27 of 1990:

According to this Act surviving spouses of a marriage dissolved by death after the commencement of this Act have a claim against the estate of the deceased spouse for their reasonable maintenance needs until their death or remarriage insofar as they are unable to provide for such need from their own means.

In conclusion and according above principles, testators in South Africa are free to dispose of their assets in a will in any manner they deem fit. Freedom of testation is not, however, completely unfettered under our law. The restriction of this freedom is based on the social and economic considerations as highlighted above.