Freedom of testation is a right as old as time but what does it mean exactly. Does one really have the right to do with one’s assets as you please? The answer is yes and no.

You can bequeath your assets to any person you wish – nobody has a right to inherit. To inherit from someone is a privilege, not an entitlement. Therefore children who are not dependent on the deceased have no right to inherit from their parents. Even a spouse married in community of property can bequeath his or her undivided half share of the estate to a person other than his/her spouse.

There are however certain limitations as stipulated in legislation. These include, but are not limited to the following:

• Agricultural land – land used for agricultural purposes cannot be bequeathed to more than one beneficiary unless the Minister’s permission has been obtained to subdivide the land provided the particular piece of land can be divided into economical portions. This limitation is contained in the Subdivision of Agricultural Land Act, No 70 of 1970 which prohibits the joint ownership of such property. 

• Surviving spouse – Maintenance of Surviving Spouses Act 27 of 1990 makes provision for the surviving spouse to institute a claim against the deceased estate if the will of the deceased doesn’t make adequate provision for the maintenance and well-being of the surviving spouse.

• Fideicommissum – this is a structure in which a particular asset is bequeathed to a beneficiary subject to the condition that upon that beneficiary’s demise, the asset will vest in a following beneficiary. For example Grandpa bequeath his farm to his son John and stipulate that upon his son John’s demise, the farm will go to his grandson Peter and upon his death to his great-grandson William. This is a structure familiar to our Common Law but is limited in the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 to only two consecutive substitutions. Thereafter the last person to inherit the limited right will become the full owner of the property.

• Pensions – the trustees of the Pension Fund of which the deceased was a member have, in terms of the Pension Funds Act 24 of 1956 the discretion to determine who the beneficiaries of the pension will be regardless of the fact whether the deceased has nominated a beneficiary on a beneficiary nomination form or provided therefore in his will. 

• Constitution of South Africa – bequests to public institutions (such as universities) subject to conditions that discriminate on grounds of religion, race, gender, etc. has been found contra bonos mores (against public policy) and therefore unconstitutional.  Whether this will also apply with regards to bequests to private individuals is still to be decided by our courts.

When drafting your will, it is important to consult with a professional advisor in this regard, especially in the light of the above mentioned legislative limitations. With proper holistic estate planning, these and other limitations can be overcome.