The Limits on Freedom of Testation

By 19th October 2023Estate Planning, Family Law
Limits on Freedom of Testation

While testators are free to draft their Wills how they desire and are able to decide who gets what in the estate, for the most part, there are some basic things to bear in mind. The right to the freedom of testation, the disposal of property by will, is balanced against factors such as public policy (race, gender, sex, or other arbitrary grounds may see a provision which offends the mores of society as being invalid). Immoral and vague provisions may suffer the same consequence of invalidity. It is important to bear in mind some of the fundamental limitations on the freedom of testation while you are still alive and can rectify any offending provisions.

The limits on freedom of testation are not just related to society’s views, there can be legislative rules to bear in mind as well, some of which are listed below:

Firstly, should you want to bequeath your farm or agricultural land the following is relevant: you require the Minister of Agriculture’s consent to transfer a farm to more than one beneficiary (the Subdivision of Agricultural Land Act 70 of 1970).

Secondly, if you are a government worker, it is worth noting that pension benefits received from governmental pension funds are excluded from the administration of estates.

Thirdly, a common occurrence is the surviving spouse: in terms of the Maintenance of Surviving Spouses Act 27 of 1990, if the death of the deceased was after 1990, the surviving spouse is able to claim maintenance from the deceased estate until his / her remarriage or death in so far as that surviving spouse is not able to maintain his / herself. Various factors can be looked at to determine this, some of which are as follows:

  • The amount in the deceased estate which is available for maintenance to the surviving spouse;
  • The means of the surviving spouse;
  • The earning capacity of the surviving spouse;
  • The subsistence/duration of the marriage;
  • The standard of living the surviving spouse had before the death of their spouse; and
  • The age of the surviving spouse.


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