This article analyses critically the impact of constitutionalism on freedom of testation and its limitation in South African law. It proposes the judicial utilisation of a 'constitutionally-founded boni mores criterion' in addressing particularly testamentary forfeiture clauses and charitable testamentary bequests.
Sloth-Nielsen, Julia; Wakefield, Lorenzo; Murungi, Nkatha L.(Cambridge University Press, 2011)
[more]
[less]
Abstract:
The right to non-discrimination for all children is established in international human
rights law. International children’s rights law further provides for the common
responsibility of parents for the maintenance of their children. African customary
law and common law have always made a distinction between children born in
and out of wedlock so far as the duty to maintain them is concerned. The resilience
of this customary and common law approach is evident in statutory provisions of the
countries discussed in this article. This is despite international obligations under children’s
rights treaties ratified by these countries. On the face of it, the distinction of
responsibility based on marital status seems harmless. However, in view of gender
inequities and resource distribution between men and women in society, such a distinction
has serious implications for the rights of affected children.