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Thou shall not discriminate from the grave

01 November 2016 Lebo Motsumi, Norton Rose Fulbright

Freedom of testation is a fundamental principle of our law. Briefly, freedom of testation provides that a person is free to dispose of the assets which form part of their estate at death in any manner that they like.

The courts are obliged to give effect to a testator’s wishes as they appear in the will. As important a principle as it is, freedom of testation is not without limitation. Courts will however not lightly interfere with a person’s freedom of testation unless the will contains a provision which is not permissible in terms of common law, legislation or the Constitution.

Going against legislation

In terms of the common law, bequests that are illegal, immoral or contrary to public policy are prohibited. The Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (the Equality Act) also prevents a testator from having a provision in their will which discriminates against people unfairly, for instance, on the basis of race, gender, ethnic or social origin, culture and religion. A court faced with a will that is illegal, contains a discriminatory provision or a provision that goes against a legislative provision may order that the offending provisions be deleted or varied.

Precedent

The case of BoE Trust Limited NO and Others (846/11) [2012] ZASCA 147 illustrates the importance of informing clients of the potential implications of having discriminatory provisions in their will. In this case, a trust was created by the will of the late Mrs de Villiers (de Villiers). In terms of her will, she made certain bequests and the residue of her estate was left to a trust. Income resulting from the amount left in trust was to be applied to provide bursaries to assist ‘white’ South African students who satisfied certain criteria stipulated in the will. The will further directed that in the event that it becomes impossible for the trustees to carry out the terms of the trust, the income generated by the trust would be used annually to provide donations to various listed charitable organisations.

De Villiers had been repeatedly advised that her wish to bequeath bursaries to ‘white’ students would possibly not be given effect to as it was discriminatory. She chose to retain the word ‘white’ in her will but provided an alternative in case it was impossible for the trustees to carry out the bequest to ‘white’ South African students. When the universities responded negatively to the bursary due to the racial selection criterion attached to it, the trustees approached the court to have the word ‘white’ deleted from the will. The court denied the application, and held that de Villiers had foreseen the possibility that the bursary bequest might prove impossible to carry out, and she had provided an alternative to which effect had to be given. The bequest to the charitable organisations was therefore enforced.

Finding an alternative

Informing your client of the potential implications of having discriminatory provisions in their will provides them with the opportunity to consider removing such provision, or to provide an alternative in the event that it is impossible for the executor to carry out the discriminatory bequest. This will ensure that your client’s property is bequeathed according to their wishes.

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