by | May 1, 2022

When drafting a Last Will & Testament for clients, I am often asked to include certain clauses into a Will which could be seen as “Ruling from the Grave”, and many times, because it does try to dictate how a person is to treat their inheritance after they have received it, unfortunately it will not hold water if ever challenged in a Court of Law because once a person receives an inheritance, they are free to bequeath the assets as they choose when their time comes. On the contrary, if a person includes in their Will a clause which must be met or achieved before a person may inherit their share of the estate, this is very much possible, and would simply mean that any inheritance may need to be held in Trust for the benefit of the heir until such time as the requirement is met.

One of the cornerstones of the law of succession in South Africa is the principle of freedom of testation. The basic principle is that the testator / testatrix should be free to distribute the assets they collected over their lifetime to their surviving family members in order to care for them and ensure that they are provided for after death. But freedom of testation goes beyond that in that the testator / testatrix is free to determine that these assets can be distributed to whosoever the testator wishes. Our courts have also confirmed this position where it has been affirmed that a person’s wishes must be followed and that our section 25 of the Constitution protects a person’s right to dispose of their assets as they wish upon their death. This means it is extremely difficult to contest a will successfully and have its provisions challenged. But this doesn’t mean that a person has free discretion to do as they please. There are two broad areas in terms of which the principle of freedom of testation is limited, these are as follows:

Statutory Claims – In terms of the South African common law, minor children have to be cared for and have a claim against a deceased estate of their parents. Claims of this nature also extend to a surviving spouse and the Maintenance of Surviving Spouses Act 27 of 1990 allows for claims to be instituted by a surviving spouse against the deceased estate. Accordingly, if a Last Will and Testament excludes these dependents from an estate, they could be reinstated as beneficiaries. This is very similar to the Pension Funds Act 24 of 1956 where the Trustees of Pre-Retirement products are mandated to ensure that before proceeds from a Pre-Retirement Investment vehicle pays to the listed beneficiaries, they ensure that any and all dependents of the deceased have been taken into consideration, regardless of who the listed beneficiaries are, or what is stipulated in the deceased’s Will.

Public policy and constitutional rights – A second limitation is where the wishes in the last will and Testament of the deceased are contrary to public policy or the public morals – in other words, harmful to the welfare of society. An example hereof is found in Emma Smith Educational Fund v the University of KwaZulu-Natal and Others (2010), where the Last Will and Testament of the deceased stated that only European girls born of British South African or Dutch South African parents could benefit from an educational fund set up in terms of the will. This case confirmed that the principle of freedom of testation when weighed up against the right to racial and gender equality afforded to an individual by the Constitution, will always come second if challenged in a court of law.

Section 13 of the Trust Property Control Act 57 of 1988 can also be used to negate discriminatory exclusions in testamentary charitable trusts. This Act empowers the High Court to change the provisions of trust instruments and Wills.

A testator / testatrix can therefore rule quite extensively from beyond the grave, but not completely unfettered.