Limitations on the right to freedom of testation

Abstract

Freedom of testation is a basic right in terms of the South African law of succession and enables a testator (or testatrix) to bequeath assets in a will as they please. The freedom is not completely unrestricted. Limitations are based on social and economic considerations and are found in statutory and common law principles. An example of a common law limitation is that a testator may not incorporate a provision in a will that is contrary to public policy. This article – the first in a two part series – analyses the limitations with regard to discrimination. These limitations are viewed in terms of both legislation and case law.