Criticism of the testamentary undue influence doctrine in the United States: lessons for South Africa?
du Toit, Francois
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This article analyzes undue influence in the South African law of wills in light of scholarly criticism of the testamentary undue influence doctrine in the United States. The Article assesses particularly whether the so-called “undue influence paradox”, identified in American scholarship, is manifest in the South African law of wills: is testamentary undue influence’s role as protector of testamentary freedom undermined in order to realize economic family protectionism? The Article proceeds, with due recognition of the differences between the American and South African legal traditions, from American scholars’ conceptualization of the paradox and their views on other complexities associated with the doctrine, to an exposition on the conceptualization, the statutory regulation, and the judicial utilization of testamentary undue influence in South Africa. The Article determines whether or not the South African legal position conforms to some or all of the assertions made in regard to the undue influence paradox and further complexities associated with the testamentary undue influence doctrine in the American context. The Article provides a mixed jurisdiction’s response to the call for the abolition of the testamentary undue influence doctrine in recent scholarship from the United States.