Testamentary freedom versus testamentary duty: in search of a better balance
| Jurisdiction | South Africa |
| Pages | 9-40 |
| Author | Karin Lehmann |
| Published date | 15 August 2019 |
| Date | 15 August 2019 |
Testamentary freedom versus testamentary
duty: in search of a better balance
KARIN LEHMANN*
This article has three objectives. The first is to demonstrate how restricted
freedom of testation is in South Africa. The second is to provide a brief
historical account of changing attitudes to freedom of testation in Roman,
Roman-Dutch and English law, both in order to explain, and to serve as a
counterpoint to, modern South African law. The third objective is to show
that despite perceptions to the contrary, freedom of testation is in some senses
arguably more restricted in South Africa than it is in our sister jurisdictions.
These objectives have a common purpose. That purpose is to remind readers
of the values that underpin freedom of testation and of the fact that it is difficult
to design restrictions that promote the public interest in the ways intended,
without also giving rise to unintended and undesirable consequences. The
article sounds the caution that the existing and proposed restrictions may not
be as reasonable, in an open and democratic society based on respect for
human dignity, freedom and equality, as they first appear to be.
I INTRODUCTION
The foundational principle of the law of succession is that property
owners have a right to choose to whom to leave their property when they
die. This simple proposition, that individuals enjoy freedom of testation,
is the lynchpin of the whole of the law of succession. Even the default
rules of intestate succession are best understood as a ‘tacit’ exercise of
freedom of testation, since the rules are premised on the presumed
intention of the deceased.
1
The concepts of private property and freedom
of testation are conjoined. Private property presupposes that individuals
can acquire property. Since property is finite, this in turn requires that
individuals be able to dispose of property. Freedom of property is
meaningless if it does not include the freedom to dispose of property,
* Senior Lecturer, Faculty of Law,University of Cape Town.
1
For a helpful discussion on general theories underpinning the law of intestate succession,
see RJ Scalise ‘Honor thy father and mother?: how intestacy law goes too far in protecting
parents’ (2006–2007) 37 Seton Hall Law Review 171. The preferences of the majority continue
to play a role in shaping intestacy laws, but they are not determinative of intestacy laws. For
different insights into the continued role played by the majority’s preferences, see for example
S van Erp ‘The new Dutch law of succession’ in KGC Reid, MJ de Waal & R Zimmermann
(eds) Exploring the Law of Succession – Studies National, Historical and Comparative (2007) 207 and
JC Sonnekus ‘Freedom of testation and the ageing testator’ in Reid, De Waal& Zimmermann
(above) 81.
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which must include the power to dispose both in life and on death.
2
Simply as an incident of the right to property, the rationale for freedom of
testation is a powerful one. Amongst its justifications is that it incentivises
intergenerational savings and equity. Those who know that the fruits of
their industry or thrift will ‘survive’ their deaths, and benefit someone
they wish to advantage, have a reason to want to save.
3
Those who know
that property will not survive their deaths, or who know that they have
no control over who the ultimate recipients will be, have no similar
incentive.
The justification extends beyond the right to property, however. It
goes to the dignity of the testator, by acknowledging that the relationships
that mattered to the testator in life, and which informed her testamentary
choices, are worthy of respect. To override an individual’s testamentary
choices is to criticise those choices, and the criticism is not only of the
testator’s proprietary choices, but also of her personal choices. It says of
the testator that her subjective world view, her personal loyalties and
attachments and sense of duty, were so unreasonable for being contrary to
society’s expectations as to warrant being overridden. At its worst,
legislative or judicial intervention may dictate to the testator whom she
may and may not love, and may sanction the testator’s preferred heirs by
denying them the testator’s property and the freedoms that accompany
it.
4
2
Restrictions that apply only on death, to property transfers via inheritance, can be avoided
by inter vivos transfers or the use of trusts, which only the wealthy can readily afford. This is a
point critics of inheritance seem not to appreciate. See for example M Orgain ‘Death comes to
us all, but through inheritance the rich can get richer: inheritance and the Federal Estate Tax’
(2011) 4 Estate Planning and Community PropertyLJ 173.
3
Cockburn CJ in Banks v Goodfellow (1870) 5 LR QB 549 at 564 put it thus: ‘[T]here can be
no doubt that it operates as a useful incentive to industry in the acquisition of wealth, and to
thrift and frugality in the enjoyment of it.’ Cf J Gold ‘Freedom of testation: the Inheritance
(Family Provision) Bill (1938) 1 Modern Law Review 296, whose criticisms include that it has
been the ‘dominant’ factor in the emergenceof extreme wealth inequalities in society, and that
it encourages ‘idleness’amongst beneficiaries (at 296).
4
An infamous example of this is the American case of Hinds v Brazealle 3 Miss. 837 (1838),
in which the intestate heirs of an American slave owner successfully challenged the terms of his
will. The testator fathered a child with a slave. He wished to emancipate mother and son and to
institute his son as his testamentary heir. He was not permitted to emancipate them without
legislative approval under the law of his home state (Mississippi). He consequently took them to
Ohio to effect the emancipation, and on their return to Mississippi he confirmed the
emancipation in his will and nominated his son as his sole testamentary heir. On his death his
intestate heirs contested the will, and both the emancipation and his son’s institution as heir
were overturned. The court held that the emancipation was ineffective and that mother and son
were consequently still slaves incapable of owning property in their own right. Instead they
themselves were held to constitute ‘property’and as such to form part of the estate inherited by
his intestate heirs.
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Freedom of testation thus implicates the right to property and the right
to dignity, the latter in a particularly fundamental way.
5
Legislatures
should be slow to limit these rights by too readily interfering with an
individual’s testamentary freedom. When they do, the case for interven-
tion should be compelling.
6
These arguments for freedom of testation notwithstanding, lawmakers
through the ages have felt compelled to limit it. The South African
legislature is no exception, although it has done so far more recently, or
belatedly, than its sister jurisdictions. Freedom of testation has been
considerably circumscribed, by the Maintenance of Surviving Spouses
Act and the Pension Funds Act in particular.
7
The extent to which these
Acts limit freedom of testation is not, I believe, widely appreciated. For
the majority of South Africans, freedom of testation is today more illusory
than it is real.
This article has three objectives. The first objective is to demonstrate
how restricted freedom of testation has in fact become. The second is to
provide a brief historical account of changing attitudes to freedom of
testation in Roman, Roman-Dutch and English law, both in order to
explain, and to serve as a counterpoint to, modern South African law.
8
The third objective is to show that despite perceptions to the contrary,
freedom of testation is in some senses arguably more restricted in South
Africa than it is in our sister jurisdictions. These objectives have a
common purpose. That purpose is to remind readers of the values that
underpin freedom of testation and that it is difficult to design restrictions
that promote the public interest in the ways intended, without also giving
rise to unintended and undesirable consequences.
9
The article sounds
the caution that the existing and proposed restrictions may not be as
5
See In Re BoE Trust Limited and Others NNO 2013 (3) SA236 (SCA) para 27: ‘Indeed, not
to give due recognition to freedom of testation will, to my mind, also fly in the face of the
founding constitutional principle of human dignity. The right to dignity allows the living, and
the dying, the peace of mind of knowing that their last wishes would be respected after they
have passed away.’
6
For a discussion of the role of dignity as a right and a fundamental value in our
constitutional order, see in particular Dawood and Another v Minister of Home Affairs and Others;
Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home
Affairs and Others 2000 (3) SA 936 (CC), especially paras 35 and 36.
7
Act 27 of 1990 andAct 24 of 1956.
8
Other articles charting its history include MJ de Waal‘Law, society and the individual: the
limits of testation’in D Visser (ed) Essays on the History of Law (1989) 300; F du Toit ‘The impact
of social and economic factors on freedom of testation in Roman law and Roman Dutch law’
(1999) 10 Stellenbosch LR 232; F du Toit ‘Succession law in South Africa – a historical
perspective’in Reid, De Waal & Zimmermann (n 1) 67.
9
The danger of policy choices giving rise to undesirable consequences has been most
famously recognised and analysed by Nobel laureate Ronald Coase in his seminal work ‘The
problem of social cost’(1960) 3 Journal of Law and Economics 1.
11TESTAMENTARY FREEDOM VERSUS TESTAMENTARY DUTY
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