n Journal of South African Law / Tydskrif vir die Suid-Afrikaanse Reg - Onterwing van ’n bloedverwant en tog ’n regterlike diskresie om die testateur se laaste wilsuiting te minag?

Volume 2019 Number 4
  • ISSN : 0257-7747


Since Roman law the entitlement of a testator to dispose of his estate freely has been recognised and safeguarded in the same manner that a fully capacitated legal subject may dispose of his assets during his lifetime – ius abutendi is part of the entitlements of the holder of the property right and includes the entitlement to dispose of even all his assets by way of an endowment to another.

The default norms of intestate succession function merely as a fall-back position in case the testator’s last will was found to be invalid, but the rule nemo pro parte testatus pro parte intestatus decedere potest ensured that prominence was always given to the validly executed last will of the deceased. Even where the last will did not dispose of all the assets contained in the estate, the residue was deemed to accede to the dispositions made, to the absolute exclusion of the norms of intestate succession that do not reflect the last will of the deceased. The nemo pro parte rule was not received in Roman-Dutch law and it may happen that the norms of intestate succession are applied alongside a testamentary disposition, but as far as possible priority will always be given to the testamentary disposition.

The principle of testamentary freedom also underlies the premise in modern English and South African law. This freedom of testation is seen as a logical consequence of the freedom of every legal subject to dispose of his assets during his lifetime provided that he does not deliberately act to the prejudice of another with a vested right as his creditor when the actio Pauliana may apply. Freedom of testation not merely entails the freedom to appoint legatees or heirs but also entails the freedom to disinherit.

Notwithstanding the so-called presumptions to help interpret the will of the deceased to determine the true intention of the testator whenever the words used in the last will leave room for some uncertainty in this regard, nobody derives any personal right to inherit from any deceased from eg the presumption that the testator probably meant to treat all his descendants equally. If the testator clearly formulated his last will and indicated that he does mean to differentiate between his children, no court may interfere with that determination under the pretext of the equality principle contained in the constitution or with reference to reasonable fairness. This is the position even where the differentiation is along sexual or religious lines or where the testator clearly indicated that his estate is only to be divided amongst his legitimate offspring to the exclusion of any illegitimate offspring or adopted offspring, be they of himself or any of his descendants. Although for the sake of intestate succession those norms of the objective law exclude discrimination based on the legitimacy or sexual orientation of claimants and adopted children are treated on par with blood related children, these norms of objective law do not override the apex principle of freedom of testation.

Loading full text...

Full text loading...


Article metrics loading...


This is a required field
Please enter a valid email address
Approval was a Success
Invalid data
An Error Occurred
Approval was partially successful, following selected items could not be processed due to error