Abstract

Freedom of testation remains one of the cornerstones of the South African law of succession. Nobody irrespective of his/her relationship to the deceased, can in principle lay claim to benefit from the estate of a deceased in contravention of the validly executed last will of the testator. There is no claim to a legitimate portion. Although South African law does recognise a dualistic approach to some aspects of private law, eg by recognising a polygenic marriage if the couple adhere to the particular customary principles, no alternative set of principles for the law of succession is recognised. If the deceased has preferred to dispose of his/her assets according to his/her last will, the will must comply with all the requirements of the Wills Act 7 of 1953 and not be in conflict with the rich heritage of principles governing the law of testate succession. No separate set of rules to govern the administration of the estate of a deceased who belonged to a particular religious belief, cultural grouping or sports club is recognised. To the extent that a deceased has not disposed validly of all his/her assets in a last will, the default principles of the uniform law of intestate succession will govern the disposition of the uncovered assets. If a deceased has felt compelled by religious belief or for any other reason to benefit his sons more liberally than his daughters, then this is an exercise of freedom of testation and not of unfair discrimination. The testator is not unfairly discriminating against anybody not mentioned as a beneficiary for whatever portion of the estate for the same reason that John is not unfairly discriminating against June by proposing marriage to her sister, Mary, and not June. Such discrimination is fair in a legal system valuing the individual integrity of its citizens as legal personalities. In similar vein, the fact that the rest of the milliards of peoples in the world have not been mentioned as beneficiaries in the last will of the testator does not translate to those milliards being unfairly disinherited – nemo damnum sentire debet per alterius lucrum – no one ought to be prejudiced through benefiting another. Disinheritance is neither defined in the Wills Act nor carries a defined content in common law. The emphasis is on the positive exercise of freedom of testation to identify the chosen beneficiaries and not on motivating why the rest of the milliards of the world are not named as beneficiaries. Disinheritance is not to be confused with qualifying to become a potential beneficiary with unfair conditions, eg my daughter will be my sole beneficiary on condition that she divorces her current husband, John. Such a condition is contra bonos mores and should be treated as pro non scripto. In addition to the rich heritage of principles governing succession to assets of a deceased received from the Roman-Dutch and common law, the legislature has incorporated new rules into the law of succession. Apart from the well-known received principles governing the disqualification of certain persons from benefiting from the estate of a deceased, irrespective of whether the testate or intestate norms govern the particular dispositions, eg the bloedige-hand rule disqualifies the person responsible for the demise of the deceased from any form of benefiting from his/her involvement with the demise of the deceased, the act also disqualifies the witness, amanuensis or executor involved with the execution of the last will from benefiting from that will. Whenever any person is consequently disqualified as beneficiary for any of these reasons, he/she is not disinherited as such, but disqualified. In these cases, the named potential beneficiaries do not qualify as potential beneficiaries because of their involvement with the execution of the last will and the perceived possibility of undue influence on the exercise by the testator of his/her freedom of testation. The additional statutory conditional disqualification of the erstwhile spouse of the testator, who was divorced from the testator less than three months before the demise of the latter, belongs to the same type of disqualification; it is not an example of statutory disinheritance either. In JW v Williams-Ashman NO ((823/2020) 2023 ZASCA 44 (31 March 2023)) the supreme court of appeal upheld the correct decision in the court a quo and dismissed the appeal of the appellant as erstwhile husband of the deceased because the couple had been divorced less than three months before her demise. Although mentioned as sole beneficiary in her last will executed before their marriage, the erstwhile husband is disqualified from benefiting from anything in her last will. Because no potential beneficiary acquires any patrimonial right owing to the spes of being a potential beneficiary of the testator  before delatio and dies cedit, the effect of section 2B of the Wills Act is not to dispossess the hopeful potential beneficiary of any patrimonial benefit – even if all patrimonial rights are to be included under the term “property” in section 25 of the constitution. Contrary to the formulation used in the decision of the supreme court of appeal, this is not an instance of disinheritance at all: “Section 2B thus disinherits the previous spouse, by operation of law, should the testatrix die within the 3 months period” (par 19). This statutory disqualification in section 2B of the Wills Act of the potential competency of the erstwhile husband as divorcee is in harmony with the best practice encountered in comparable legal systems: “that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage”. If any amendment to this section is to be considered in future, it should then be to expand the amendment to all forms of living arrangements, not limiting its effect to legally married people only; the time limitation of three months after divorce should also be deleted. Any beneficiary named as such in a will of an erstwhile spouse executed under seriously different circumstances than those which prevail after a divorce, should automatically be disqualified from benefiting under a clause in the testator’s will unless, after the divorce, the erstwhile spouse was again named a testamentary beneficiary in a newly executed testamentary writing that complies with all the requirements for the execution of a valid will. For example where the will, as in this case, was executed before the marriage and when the couple were still contemplating to be married “till death us do part”. The statutory disqualification contained in section 2B of the Wills Act does not fall foul of the provision contained in the bill of rights against unfair discrimination merely because it centres on marital status, gender or sexual orientation: “Discrimination on one or more of the grounds listed in subsection (3) [ie including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth] is unfair unless it is established that the discrimination is fair” (s 9(5)). It would be a pity if the constitutional court should in future consider following its unconvincing judgment in King NNO v De Jager (2021 4 SA 1 (CC)) and also judge this clause in section 2B to be an exercise of unfair discrimination. It remains to be seen how the apex court is going to apply its reasoning in the King case to a validly executed will by a deceased who, as a devoted Muslim, exercised his freedom of testation to abide by the rule in the Holy Qur’an (4: 11) that obliges him regarding his children’s inheritance: to bequeath to every male child, a portion equal to that of two females because these fixed shares are ordained by Allâh.