The Limitations on Freedom of Testation

Abstract

The freedom of testation principle in the law of succession ensures that effect is given to a testator’s wishes to dispose of his or her property as he or she pleases. The freedom of testation however has never been unfettered and has been limited by certain legislation, and the courts have also refused to give effect to a testator’s directions in his will if they were found to be illegal, against public policy or too vague or uncertain to enforce. Against the backdrop of public policy, the freedom of testation is limited by various values enshrined in the Constitution of South Africa. The anti-discriminatory provisions in the Bill of Rights have been applied to various charitable trusts in case law. This led to effectively removing provisions in the charitable trusts that only provided for certain privileged racial or gender groups that excluded the previously disadvantaged groups. This would give all races and genders the opportunity to apply for the benefits of charitable trusts. These limitations of unfair discrimination on institutions in the public domain have also found a wider application to private wills with out-and-out disinheritance in 2021. The concern that the weight of the freedom of testation has been found wanting and will cause your wishes not to be carried out warrants an exploration into possible solutions to ensure that a will is not unconstitutional or against public policy.