Freedom of testation and our Constitution

A will drafted in 1902 created a fideicommissum for three generations. The first generation of heirs included the testator’s children, both sons and daughters.  However, the fiduciaries and eventual fideicommissaries were limited to the male descendants in each generation from the second generation. 

In King v De Jager; 2021 (4) SA 1 (CC), the Constitutional Court was called upon to decide whether the exclusion of female grandchildren fell within the definition of freedom of testation or fell foul of section 9 of the Constitution.

After their father died in 2015, female great-grandchildren of the testator went to Court to argue that the terms of the fideicommissum were discriminating based on gender and offended section 9 of the Constitution. This section guarantees equality before the law and freedom from discrimination by private persons.

In our law, a testator can leave his property to anyone he likes. Van den Heever JA stated in Bydawell v Chapman 1953 (3) SA 514 (A) 521E-F: ‘Roman-Dutch law recognises as a matter of public interest, transcending the private interests of beneficiaries under a will, that effect should be given to the wishes of a testator … the “interests” of the testator and the public interest demand that effect should be given to a testator’s last wishes.’

However, a testamentary provision may not contradict the boni mores / public policy.

The Court reiterated that there is no obligation to bequeath anything to anyone, and testators are free to disinherit any family member. However, the Court found that the condition that upon the death of the last fideicommissaries, the inheritance must go to the male descendants of the testator, was invalid as it discriminated unfairly against the female grandchildren.