Restrictions on the contents of your will

01 April 2021 627

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. 

 

Tags: Will
Share: