The limits imposed upon freedom of testation by the boni mores: Lessons from Common Law and Civil Law continental) legal systems

• Jurisdiction: South Africa
• Author: François du Toit
• Date: 30 May 2019
• Published date: 30 May 2019
• Pages: 358-384

The limits imposed upon freedom of testation by the boni

mores: Lessons from Common Law and Civil Law

(continental) legal systems

2000 Stell LR 358

François Du Toit 1

BA LLM

Lecturer in Private Law, University of the Western Cape

1. Introduction

Freedom of testation is recognised as one of the founding principles of the South

African law of testate succession. According to this principle, testators are free to

dispose of their assets in a will in any manner they deem fi t. 2 Freedom of testation

is not, however, completely unfette red — South African law allows for t he restriction

of this freedom on the basis of relevant social and economic considerati ons. 3 Some

of these restrictions are of a statutory nature, while others are founded upon

common law principles. 4 In South African law as in Roman and Roman-Dutch law,

an important restriction based upon social considerations dictates, that effect will

not be given to testamentary provisions if compliance with such provisions will be

contra bonos mores or against public policy. 5

A disconcerting feature of the South African legal position with regard to the

limits imposed upon freedom of testation by the b oni mores is the comparative

juridical inactivity which has characterised this area of the law in recent years —

neither our courts nor the legislature has devoted much att ention to freedom of

testation in general and more particularly to the limiting effect of the boni mores on

this freedom. Indicative of this lack of judicial and legislative rejuvenation is the fact

that authoritative decisions by the appellate division (now the supreme court of

appeal) on this i ssue dates back to the 1950s. 6 It stands to reason that the role

attributed in such decisions to the boni m ores for the purpose of limiting freedom of

testation may no longer hold true in a (more)

2000 Stell LR 359

modern legal environment. 7 The paucity of legal development in the above regard

becomes even more acute when constitutional development in South Africa since

1994 is considered. This development has raised a pertinent question with regard to

the impact of constitutional principles upon the entire body of South African private

law. It is, for example, accepted that some o f the rights contained in the Bill of

Rights of the South African Consti tution 8 has a definite bearing on the relationship

1 I would like to thank the University of the Western Cape for facilitating the research for part of this

article through their exchange programme with the Catholic University of Leuven in Belgium.

2 Van der Merwe & Rowland Die Suid-Afrikaanse Erfreg (1987) 251; De Waal & Schoeman Law of

Succession (1996) 87.

3 De Waal “The Social and Economic Foundations of the Law of Succession” 1997 Stell LR 162.

4 Du Toit “The Impact of Social and Economic Factors on Freedom of Testation in Roman and Roman-

Dutch Law” 1999 Stell LR 232 236 240; De Waal 1997 Stell LR 162 170.

5 Corbett, Hahlo & Hofmeyr The Law of Succession in South Africa (1980) 118; De Waal & Schoeman Law

of Succession 92. For purposes of this discussion the terms “boni mores” and “public policy” will be used

as synonyms. See Trust Bank van Afrika Bpk v President Versekeringsmaatskappy 1988 (1) SA 546 (W)

552G in support of this proposition and Rylands v Edros 1997 (1) BCLR 77 (C) 92A for a contrary view.

6 Aronson v Estate Hart 1950 (1) SA 539 (A) on testamentary faith and race clauses.

7 In the famous words of Hahlo “Jewish Faith and Race Clauses in Wills — A Note on Aronson v Estate

Hart 1950 (1) SA 539 (A)” 1950 South African Law Journal 231 240: “Times change and conceptions of

public policy change with them.”

8 Act 108 of 1996.

(2000) 11 Stell LR 358

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between private individual s, be it by way of either di rect 9 or indirect 10 horizontal

application of such ri ghts. It is furthermore a ccepted that the effect of constitutional

principles (as embodied i n the rights contained in the Bill of Rights) will, with regard

to the limitation of freedom of testation, primarily occur through the application of

the boni mores criterion. 11 There is, however, as yet little indication as to the

precise manner in whi ch such a constitutionally-founded boni mores criterion will

operate in order to limit freedom of testation in the South Afri can law. 12

In view of the se consi derations, i t i s suggested that a proper evaluation of the

limits imposed upon freedom of testation through the application of a

constitutionally-founded boni mores criterion is indeed appropriate. 13 In order to

facilitate such an evaluati on, this articl e investigates, by way of comparative

research, the role of the boni mores for the pu rpose of limiting freedom of testation

in selected common law an d civil law (continental) legal systems. The insight gained

from such an investigation will undoubtedly provide valuable direction when this

issue is considered in a South African context.

As far as common law legal systems are concerned, the limits i mposed by public

policy upon freedom of testation in English and Australian law will be considered

first. Then Dutch and German law will be similarly investigated as two examples of

civil law or conti nental legal systems. In each of the latter two cases, the limits

imposed upon freedom of testation by good morals (goede zeden in Dutch law and

guten Sitten in German law) will be considered. The investigation of the issue in

each of the above-mentioned legal systems will focus p rimarily on the approach (in

terms of public policy or good morals) to prescriptive testamentary provisions

whereby it is attempted to control the conduct of beneficiaries or to regulate the

exploitation of assets in a manner which infringes the

2000 Stell LR 360

fundamental rights of (instituted and/or potential) benefici aries. To thi s end

particular emphasis wil l be placed on testamentary provisions based on race,

nationality and religion.

2. Freedom of testation and its limitation in common law

legal systems

2.1 English law

2.1.1 Freedom of testation in English Law

Testate succession during the Anglo-Saxon period in England was comparatively

undeveloped and imperfect. 14 The Norman conqu est (1066) did not expedite

development in thi s area of the l aw as the eccl esiastical courts and th e King’s Court

soon gained st rict control over deceased estates. 15 As the i nfluence of these courts

waned, English testators enjoyed greater f reedom (within certain broad limits) to

dispose of their assets by way of will. This freedom was later enhanced by various

9 Woolman in Chaskalson, Kentridge, Klassren, Marcus, Spitz & Woolman Constitutional Law of South

Africa (1996) 10–57; Woolman & Davis “The Last Laugh: Du Plessis v De Klerk, Classical Liberalism,

Creole Liberalism and the Application of Fundamental Rights under the Interim and Final Constitutions”

1996 South African Journal on Human Rights 361 380.

10 Sprigman & Osborne “Du Plessis is not Dead South Africa’s 1996 Constitution and the Application of the

Bill of Rights to Private Disputes” 1999 SAJHR 25.

11 De Waal in Rautenbach et al Bill of Rights Compendium (1998) 3G25.

12 The only substantial consideration of the issue to date is by De Waal in Rautenbach et al Bill of Rights

Compendium 3G1. De Waal’s discussion is, however, confined to the limiting effect of the equality clause

of the Bill of Rights upon freedom of testation.

13 I shall undertake this task in a forthcoming article.

14 Potter A Short Outline of English Legal History (1933) 252; Pollock & Maitland The History of English

Law Vol 2 (1968) 320–321; Miller The Machinery of Succession (1996) 3.

15 Potter English Legal History 252–253; Pollock & Maitland History of English Law 332–333; Miller The

Machinery of Succession 3.

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