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Law of succession - freedom of testation and its limits

Law of succession  freedom of testation and its limits

In South Africa, the principle of freedom of testation, grants you, as an individual, the right to bequeath your estate as you see fit. However, it is important to remember that there are lawful limitations on what the testator can dictate in his/her will in relation to disposing of his/her assets.

Such limitations are usually in accordance with common law. Provisions in a Will will not be executed if one or more of the following is present:
(a) The Will in general is unlawful;
(b) Against good morals (contra bonos mores);
(c) Impracticably vague; or
(d) Impossible.

Therefore, the above can be regarded as the limitations of a person’s freedom of testation.

The Constitution on freedom of testation
Section 25(1) of the Constitution refers to the property clause. It is suggested that Section 25 guarantees the right to private property. This right to private property also includes the right to dispose of one’s property during one’s lifetime as well at the time of death.

In terms of the above interpretation, Section 25(1) would also guarantee the institution of succession as well as the principle of freedom of testation.

Furthermore, there are also testamentary institutions which govern a Will when a testator disposes of his/her assets. These include but are not limited to: legacy and the inheritance, direct and fideicommissary substitution as well as usufruct.

Revocation and amendment of Wills
The importance of the principle of freedom of testation is that the testator can at any point revoke or alter his/her Will before death. This is, however, limited in the case of a beneficiary accepting a benefit in terms of a joint or mutual Will where a massing of estates has occurred.

An individual may dispose of his/her assets in terms of his/her last Will and testament provided that it is in accordance with the laws and regulations of South Africa. Should you require assistance in determining whether your Will is in order or not, please contact an expert at SchoemanLaw today.

© Beata Warnich - Schoemanlaw Inc. - 2018

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