The freedom of testation is the most obvious manifestation of private autonomy in the law of succession. The freedom of testation is a principle in South African law which entails the idea that a person may dispose of his/her assets as he/she wishes.
This principle, however, is not absolute. There is a certain legal framework within which the contents of a will must reside. Meaning there are certain limitations to this freedom. These limitations are based on social and economic reasons.
Social restrictions:
Even if the testator/testatrix excludes their spouse from their will – the Maintenance of Surviving Spouse Act states that a surviving spouse has a claim of maintenance from a deceased spouses’ estate.
Further, testamentary conditions that are contrary to values enshrined in the Constitution are void. An example hereof would be a mother who states in her will that her son cannot inherit unless he marries a woman of a certain religion.
There is a general rule that testamentary power cannot be delegated. An example of such delegation would be: I direct that my daughter can decide what happens to my house when I die.
Economic restrictions:
The Alienation of Land Act prevents a person from subdividing agricultural land among beneficiaries.
A fideicommissum (where an asset is left to A, and thereafter must go to B) is limited to two successive generations so as to prevent a person from “reigning from the grave”.
As much as private autonomy is granted by the law of succession, it is important for people to realize that a will is not a document that can be used in a manner that is contrary to the Constitution and public policy. One must bear in mind that a will is a legal document to enforce the wishes of a person, however, it is not a document that is immune to the limitation.
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