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Limitations on your freedom to test


Although freedom of will remains a fundamental principle of our constitutionally guaranteed inheritance right, this right is not without limitations. Although you can generally bequeath your assets to anyone, there are several legal and common law restrictions on this right. In this article, we will tell testators what limitations they may face when making a will.

Common law limitations

In terms of our common law, a person making a will must satisfy himself that no provision of his will is illegal, contrary to public policy, impractically vague or unenforceable, and if found to be of that nature, cannot be performed. For example, if a testator bequeaths property to his daughter on the condition that she divorces her husband, such a provision would be considered contrary to public policy. Another important limitation of the general right to testamentary freedom is the right of a child to claim maintenance from the parents’ property to the extent that the deceased parent did not provide for it in accordance with his will. Remember that the obligation to support your child is an obligation that falls on both parents depending on their means – it starts automatically when the child is born and continues until the child is financially independent. This duty of support does not terminate with the parents, and therefore the parents have a duty to provide for the proper maintenance of the child in accordance with their will. If the deceased parent fails to do so, the minor child may file a claim for child support from the deceased’s estate, which claim is superior to all other claims against the deceased’s estate. A child over the age of 18 who was not supported by a deceased parent has the right to file a claim for alimony, but it is necessary to prove that he is in need of alimony. An important thing to bear in mind when making a will is that any maintenance orders in place at the time of your death will be binding on your deceased estate, so you need to take this into account when calculating the liquidity of the estate.

Law on wills

Another restriction on wills can be found in section 2B of the Wills Act, which effectively provides a three-month period for divorcees to update their wills following a divorce decree. This section provides that if a divorced person dies within three months of the divorce, any will that was made before the date of the divorce must be executed as if the former spouse had died before it. After this three-month period, if the divorcee has not yet renewed his will, he will be deemed to have intended to inherit his ex-wife accordingly.

Marriage in community of property

Cohabiting couples share their joint property in equal indivisible shares, which imposes restrictions on probate. This is because after the death of the first spouse, only 50% of the joint property remains to be bequeathed, and therefore each spouse must keep this in mind when making their wills. Practically speaking, upon the death of the first spouse, the executor terminates the joint estate, in respect of which the surviving spouse has a claim to 50% of the value of the net estate.

The accrual system

Similarly, couples who enter into an accrual marriage must understand how this marital status affects their freedom to test. In such marriages, the surviving spouse may claim a 50% accrual of the deceased spouse’s estate if the deceased’s estate is the larger of the two, and this should be considered in the estate planning process. Remember that an accrual claim is a privileged claim, and the decedent’s estate is obligated to pay the survivor her share before distributing any assets to the decedent’s heirs.

Maintenance of surviving spouse

The Surviving Spouse Maintenance Act imposes a legal restriction on the testator’s freedom by giving the surviving spouse the right to claim reasonable maintenance from the deceased spouse’s estate in circumstances where it has not been adequately provided for, a right that extends not only to all matrimonial contracts, but which was extended to heterosexual and same-sex permanent life partners. In determining the reasonable support needs of a surviving spouse or common-law partner, consideration is given to the amount of the deceased’s estate to be distributed among his or her heirs, the surviving spouse’s standard of living during the marriage, and her ability to provide for herself going forward.

Pension Fund Assistance

Another statutory limitation on testamentary freedom is found in section 37C of the Pension Funds Act, which provides that any death benefit paid by a pension fund, provident fund or pension annuity fund shall not form part of the estate of the deceased and that such benefit must be distributed to compliance with the law. In terms of this section, the trustees of the pension fund have a duty to determine who is financially dependent on the deceased and to distribute benefits in accordance with their determination. This means that although you may have named beneficiaries on the pension fund forms, this will only be used by the trustees as a guide in determining who is financially – wholly or partly – dependent on you, bearing in mind that this may include people who you are not legally required to support such elderly parents, siblings or stepchildren. Therefore, when making a will it is best not to mention pension fund payments in your will as they are not part of your estate and will not be managed by your appointed executor.

Division of agricultural land

An important restriction that farmers and landowners should be aware of is the provisions of the Division of Agricultural Land Act 1970. According to this Act, a farm owner cannot bequeath agricultural land to two or more beneficiaries without obtaining approval for such division from the Minister of Agriculture. farms – and if such consent is not obtained, the wishes of the testator cannot be fulfilled, which can cause immeasurable problems for the heirs. There are several ways for farm owners to get around this restriction, and if the land is to be transferred to two or more beneficiaries, careful estate planning is advisable. A practical way to handle such a situation would be to place the farm in a company where the heirs are shareholders, or to transfer the farm to an inter vivos trust with the intended heirs as designated beneficiaries. However, this process can be complex and have huge tax implications for the estate planner, so our advice is to seek advice from a competent advisor.

Limitation of trustees

A fideicommissum is a limited right that usually attaches to immovable property where, for example, certain property is bequeathed to a person (the fiduciary) under a will, with the condition that on the occurrence of a certain event (usually the death of the fiduciary person), the property must pass to the next generation of heirs – and after their death to the next generation of heirs. However, in terms of section 6 of the Real Property Act, trustees created after the Act comes into force are limited to two consecutive transfers, after which the property will be transferred without payment to the trustee.

As can be seen from the above, estate planning and drafting a valid and enforceable will can be complex and multi-faceted and should therefore be undertaken with the help of an estate planning expert to ensure that your goals are achievable.

Have a wonderful day.


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