Abstract

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.

In this contribution some attention is devoted to the indications observed in English law lately where the courts have shown an inclination to tamper with the clear intention of the testator to disinherit some blood relations. In these cases, the courts used their powers to allocate part of the estate to disinherited descendants because of the pleaded harsh circumstances that had befallen the claimants as descendants or so-called dependants of the deceased. It is submitted that this tendency in English decisions lately is not to be seen as an example that should be followed by South African courts to disregard the unambiguous last will of the testator. In contrast to English common law, under South African common law all dependants of the deceased have a personal right for maintenance against the estate if proven dependent. This is not to be confused with a right to an inheritance.

Courts should not be enticed to deem all examples of perceived unreasonable differentiation between descendants or potential beneficiaries in the last will of the deceased as an indication that the testator lost his/her capacity to testate and consequently deem the court empowered to rewrite a new last will for the deceased that is deemed to be more in line with the current flavour of the day as far as the social norms of the day are concerned. Unpopular differentiation by the deceased as testator between potential beneficiaries that results in the disinheritance of some does not equal loss of sound will to dispose freely of his/her assets.

In contrast to the troublesome tendency in some English decisions lately, in some continental legal systems where formally some offspring are still entitled to claim their so-called legitimate portion of the estate of a forebear, the legislature lately opened the door slightly by way of an amendment to the civil code to enable a testator the opportunity to disinherit expressly even a descendant from the applicable legitimate portion where the claimant misbehaved in a manner that is against public policy. Behaviour of a claimant in conflict with the expected reverence to be displayed towards the testator suffices to uphold the expressly formulated will of the testator to disinherit the descendant who acted disrespectfully. This is the trend to be followed by South African courts in future, and courts should not be enticed under the presumed all-surpassing principles of the bill of rights contained in the constitution to allow inroads into the fundamental principle of absolute freedom of testation.