2.

TESTAMENTARY SUCCESSION
2.1. Introduction to freedom of testation.
Freedom of testation is limited:
1. Bequests that are illegal or against public policy,
2. Bequests that are too vague or uncertain to be enforced.

Legislation that restricts testation:

1. The Immovable Property (Removal or Modification of Restrictions) Act,
2. Maintenance of Surviving Spouses Act,
3. The Constitution of South Africa.

Limitations on freedom of testation:

The Latin maxim ‘voluntas testatoris servanda est’ provides that the wishes of the testator must be implement.
 The High Court must enforce the provisions and has no general authority to consent to alternations to a Will
which can be seen to be against the intention of the testator expressed in their Will.
 However, in specific cases, the court may amend a Will.

The most significant limitation on freedom of testation is ‘contrary to public policy’.

- Public policy is shaped by the Constitution, particularly section 9.

Cases:
1. Minister of Education v Syfrets Trust Ltd (2006),
2. Curators, Emma Smith Educational Fund v University of KwaZulu-Natal (2010),
3. Ex Parte BOE Trust Ltd [WCC] (2009),
4. Ex Parte BOE Trust Ltd [SCA] (2013),
5. King NO and Others v De Jager and Others 2021 (4) SA 1 (CC).

2.2.1 Contra bones mores conditions

1. Conditions that interfere with a beneficiary’s marital relationship,
2. Conditions limiting a beneficiary’s freedom of movement.

Conditions that interfere with a beneficiary’s marital relationship:

 The common law provides that a testator cannot leave a benefit to a beneficiary who has never been married
on the condition that the beneficiary never gets married i.e., cannot prevent someone from getting married.
 However, you can place a condition regarding whom the beneficiary may marry or of which religion the
partner must be. This is in line with public policy (Aronson v Estate Hart).
 Point of argument – would this decision stand in the Constitutional Court today? Bear in mind that Aronson
was decided in 1950. Has our society changed?

Conditions limiting a beneficiary’s freedom of movement:

 The common law provides that provisions which determine where beneficiary must live is regarded as valid
and enforceable.
 However, what about s 21 (the right to freedom of movement and residence)?

Statutes limiting freedom of testation:

1. Immovable Property Act:
 Sections 6, 7 and 8 provide that such long-term provisions are restrict to two fideicommissaries:
Testator ⇨ Fiduciary ⇨ Fideicommissary 1 ⇨ Fideicommissary 2
 Therefore, testator is limited in how many people take on ownership of property in terms of this Act.
  If more than two, when transfer to fideicommissary two occurs, it is transferred free of the fideicommissum.
 Sections 2 and 3 provide that a restriction on immovable property can be removed if it will be to the
advantage of the person who is entitled to the property.

2. Pension Funds Act:

Section 37c provides that pensionable benefits do not form part of the assets of an estate.
 This restricts freedom of testation i.e., what you can do with your pension,
 It also changes the idea of who can receive a benefit because the Board can decide how to distribute your
pension; upon investigation, the trustees may give parts of the whole pension to whomever they believe needs
it most.

3. Trust Property Control Act:

Section 13: the power of the court to vary trust provisions (Ex Parte BOE).
If a trust instrument contains any provision which brings about consequences which, in the opinion of the
court, the founder of a trust did not contemplate or foresee and which—
(a) hampers the achievement of the objects of the founder; or
(b) prejudices the interests of beneficiaries; or
(c) is in conflict with the public interest,
the court may, on application of the trustee or any person who in the opinion of the court has a sufficient
interest in the trust property, delete or vary any such provision or make in respect thereof any order which
such court deems just, including an order whereby particular trust property is substituted for particular other
property, or an order terminating the trust.

2.3. Possible claims against the State.

The two possible claims against the State which we will focus on are:
1. Maintenance of children and grandchildren,
2. Maintenance of surviving spouse.

Maintenance of children and grandchildren:

Roman-Dutch Law did not recognise a child’s claim to maintenance against the State – this was because a fixed
portion of the Estate was left to the minors. When the testator died, their obligation to maintain children ‘died’
too.
 In South Africa, the above has been abolished.
 The testator has complete freedom to disinherit their children, however the maintenance and education
remains and obligation of the testator’s estate. If child still requires maintenance, the Estate must provide. This
therefore affects their freedom of testation.
 This is a common law obligation which looks at the needs of the child; it ends when the child no longer needs
it and the obligation on the Estate will then come to an end.

Ranking of the child’s claim to maintenance:

 Maintenance is subordinate to the claim of creditors but preferred to legatees and heirs.

Maintenance of surviving spouses:

This is governed by the Maintenance of Surviving Spouses Act, 1990.
This applies in two situations:
1. Where a surviving spouse has been disinherited by needs maintenance,
2. Surviving spouse has been named a beneficiary, but that benefit (property or sum of money) is insufficient to
meet their needs.
What can be claimed?
 S 2(1) – if a marriage is devolved by death, then surviving spouse has a claim against the Estate for
“reasonable maintenance needs until death or remarriage”. The amount is determined by the survivor’s own
 means; court looks at inheritance, portion of joint estate, own estate – do they have sufficient funds to support
themselves? Moreover, court will also look at what is ‘reasonable’.
 S3 determines what are ‘reasonable maintenance needs’. Factors considered:
- Amount available for distribution;
- The existing and expected means, earning capacity, financial needs and obligations of the survivor and the
subsistence of the marriage;
- The standard of living of the survivor during the subsistence of the marriage and his age at the date of death of
the deceased.

Ranking of surviving spouse’s claim to maintenance:

 S 2(3)(b) – equal that to a child’s claim. If there are competing claim (child and surviving spouse), the claim is
reduced proportionately.

Can you be disqualified from claiming maintenance in the same way you are disqualified from inheriting from the
deceased?
This question is yet to come before our courts, yet existing case law and legislation is silent on the matter. Legal
scholars argue that if a disqualified person cannot inherit pension or other benefits, they should not have a claim to
maintenance.

2.4. Delegation on testamentary power.

General rule = a testator must make their own Will; they cannot delegate their will-making powers to another.
You cannot empower someone to make a Will for you, on your behalf, nor can you give a person discretion to decide
who will be the beneficiaries under a Will.

Three types of appointment:

1. Bongi provides in his Will that he leaves his estate to his daughter, Kgomotso, ‘and the division thereof is
entirely in her hands’ = power of appointment has not been validly conferred.
2. Ayesha provides in her will that her estate will be inherited by the descendants of her daughter, Dinah = this
is a valid power of appointment known as a ‘special power of appointment’. The beneficiaries must be
chosen from a certain pool of persons.
3. Simon provides in his will that his daughter, Deb, must appoint beneficiaries to Simon's estate in her will =
this power of appointment is known as a ‘general power of appointment’ is the validity thereof is not
entirely clear. The effect of any invalid power of appointment will depend on the intention of the
testator.

Two exceptions to the general rule:

1. Bequests for charitable purposes – the testator can allow a third party to identify beneficiaries when it is for
this reason,
2. Delegation to the bearer of an interim right – for instance, the fiduciary in a fideicommissum or the
usufructuary in a usufruct.

Case law:
1. Estate Orpen v Estate Atkinson:
The Court held that beneficiary could not validly exercise the power of appointment conferred on her in the
testator's will as the general rules applicable to a fideicommissum applied when she exercised her power and,
as she predeceased the testator, she had not yet been the fiduciary.
2. Braun v Blann and Botha:
The Appellate Division held that such a power may be conferred on a trustee, but with the proviso that the
testator has to indicate a specified class of persons from which the trustee should appoint the beneficiaries.
The person who receives the power of appointment exercises it in accordance with the provisions of the will
in which it is created.