Beperkings op testeervryheid

Abstract

This research report is focused on the limitations placed on the freedom of testation of a person in the broader sense. The principle of freedom of testation is the foundation of the South African testate succession. The South African concept of freedom of testation is currently of such a nature that it allows a testator to bequeath his or her assets according to his or her discretion, subject to some statutory and common law exceptions. In determining whether a particular clause can be contained in a will, such clause shall first be tested against the Constitution of the Republic of South Africa, to determine whether such a clause is a possible infringement on a constitutionally entrenched right. Further statutory limitations include the right to dispose of immovable property as regulated by the Immovable Property (Removal or Modification of Restrictions) Act, the right of a minor child to claim maintenance from the estate, the Maintenance of Surviving Spouses Act and the Pension Funds Act. Freedom of testation is directly linked to every person’s fundamental rights which are guaranteed in the Constitution of the Republic of South Africa. The principle of freedom of testation has been addressed in several court cases and these court cases are subsequently discussed. The type of matrimonial property regime under which a marriage is concluded is a further restriction on the extent to which a testator can freely dispose of his or her assets. The influence of marriages concluded in or out of community of property on freedom of testation, the Maintenance of Surviving Spouses Act as well as the maintenance obligation that arises from the marriage between spouses and in respect of their minor children will be analysed. Social security is organised in terms of section 27 of the Constitution of the Republic of South Africa and incorporates section 37C of the Pension Funds Act to ensure that a person’s pension benefits must be awarded to the financial dependants of the member to provide for their maintenance needs. The operation and the influence of section 37C and its influence on freedom of testation are discussed. The last limitation which is handled is the limitations that exist in respect of bequests of immovable property. These endowments are limited by the operation of the viii Immovable Property (Removal or Modification of Restrictions) Act and the Subdivision of Agricultural Land Act. This research report therefore does an in-depth research investigation into the limitations that arise on freedom of testation, the relevance and effectiveness thereof and it is determined whether these restrictions may be considered as reasonable or not.