Freedom Of Testation

Can I choose who to benefit in my will?

In South Africa, a person can leave his or her assets to whoever he likes, with few limitations. This is called “freedom of testation“. If a person dies with a valid will, he or she dies “testate”, and without a valid will, he or she  dies “intestate”.

Testate succession

An executor (the person appointed to wind up the estate) must carry out the wishes of the testator (the person making the will) as far as legally possible. The freedom of testation is limited by the common law in these situations:

• A provision in a will shall not be executed if (a) it is generally unlawful, (b) against public policy, (c) impracticably vague, or (d) impossible; and

• The estate is obliged to support any minor and financially dependent children.

There are certain acts that limit the testator’s freedom to choose his beneficiaries in his will, e.g.

• In terms of the Pension Funds Act, the deceased can’t choose who to benefit. The decision will be up to the pension fund administrators;

• A surviving spouse (who has been excluded from the will) may have a claim against the estate for maintenance in terms of The Maintenance of Surviving Spouses Act;

• If the testator disinherits his wife, and they are married with the accrual system, the wife has a claim against his estate for ½ the difference between the accruals (if her estate is the smaller of the two).

Intestate Succession

If a person dies without a will, his or her estate is wound up in accordance with the Intestate Succession Act.

This is not a detailed exposition of the law but a mere synopsis. Contact your lawyer for comprehensive advice.