My Will; My Wish; My Way

06 May 2020 , Allan Lesesa 3650

On executing a will, one of the elements that testators make use of is the fideicommissum.

A fideicommissum is a gift of property (through a will) to be held on behalf of another who cannot recieve it then– in essence, it is something committed to someones trust. A testator gives property to another one of is heirs, on condition that the heir will transfer it to another specific person (decendant) at a later stage.

On face value, this may appear to be quite thoughtful, especially considering the future decendants and their economic or social security.

A typical example of a fideicommissum would be; a parent who bequeaths his house to his only son on condition that that son must pass such property (house) to his son, and this later son should also pass the property to the next decendant in line and so forth..

People make use of a fideicommissum for a number of reasons, some practical and others purely subjective. One reason could be to create generegional wealth and ensure that your future decendats will surely be well taken care of. Another economic reason would be: Once a said testator had toiled and successfully acquired riches, there may be one of those dependants who may well squander the hard earned wealth to the detriment of the other decendants and for this reason, a testator may want to subject certain property to a fideicommissum.

Some testators bequeath certain property to a specific gender of decendants whilst it is subjected to a fideicommissum.

Fortunately our Constitution honours and protects the freedom of testation– wishes of the dead. As a testator, you can rule from the grave to the greatest extent legally permissible– that is to say, one may bequeath their property/asets however they want, desire and please, but be careful such freedom is not absolute, it is subject to limitations and constitutional rights of other people.

Let us now consider the balance of a fideicommissum bequeathed to a specific gender of decendants under the constitutional dispensation.

A case regarding this recently went up to the Constitutional court and caused a huge spark, abstactly, the facts of the case are as follows: arouond 1902, a couple executed a joint will and subsequently bequeathed a number of properties comprising of farms to their chilren subject to a fideicommissum. The fideicommissum had a clause which stated that the fideicommissary limitted the first and second beneficiary (second and third generations) substitutions to only the descendants of the male gender. One of the initial fiduciaries died without any male decendants, but only daughters, this means that, the daughters could not inherit because the fideicommissum expressely excluded female descendants from inheriting. Agrieved by the exclusion, the daughters along with the executor went to court on the basis that the fideicommissum “unfairly discriminates” against them.

Against this backround, it is worth mentioning that, as much as the Constitution protects the freedom of testation, section 9(3) of the said Constitution also precludes anyone and on whatever grounds from unfairly discriminating others based on gender.

The High Court was called upon to determine two main issues: first, to reconcile a potential conflict between the right to freedom of testation and the right to equality; and, second, the correct interpretation of the words “sons” and “male descendants”. The High Court held that the discrimination was not unreasonable and offensive to the extent that it could be rendered contrary to public policy. The Court drew the distinction between public and private testamentary instruments. Since this matter dealt with a private will, the High Court was of the view that it did not have a public character nor indefinite life, and its provisions did not discriminate against one or more sectors of society but, rather, against certain descendants. Thus, the High Court found the fideicommissum constitutional. The Supreme Court of Appeal also endorsed the reasoning of the High Court.

The High Court and Supreme Court echoes this: for the sake of freedom of testation, a testator can discriminate (private will) if the will is not a public instrument because then, it will be against the general public policy.

Previously, both Courts have invalidated some testaments based on unfair gender discrimination. Quite precisely, in one of the decided cases that invalidated a discriminatory will, it was held: “This conclusion does not, of course, mean that the principle of freedom of testation is being negated or ignored; it simply enforces a limitation on the testator’s freedom of testation that has existed since time immemorial. It also does not mean that all clauses in wills or trust deeds that differentiate between different groups of people are invalid; simply that the present conditions - which discriminate unfairly on the grounds of race, gender and religion - are invalid.”

So with the current decision, it may seem as though the law is somewhat unclear and provides no certainty for those who wish to make use of their freedom of testation in a way they find fit, the good thing is that the matter is still sub judice before the Constitutional Court– we thus await its clarity on the matter.

In the meantime, we may continue executing wills and making the best use of our freedom of testation as wide as is legally viable. However, it may prove wise to recall these sensible words of Sun Tzu when one makes use of their freedom to make a will: “A wise general in his deliberations must consider both favourable and unfavourable factors. By taking into account the favourable factors, he makes his plans feasible; by taking into account the unfavourable, he may avoid possible disasters.”

As a law firm, we are here and ever ready to provide you with the most recent and legally sound advice when you execute a will, always NvR law.

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