The Freedom of Testation

The Freedom of Testation

by Vicky Botha

The requirements for drafting and executing a valid will is set out in Section 2 of the Wills Act 7 0f 1953.  The freedom of testation forms the basis of a will and comes down to the fact that you, as the testator, have the freedom to dispose of your estate as you wish.

On the one hand you have the freedom of a testator to dispose of his or her estate subject thereto that the freedom may be limited by the principles of public policy and, on the other hand, you have the fact that a testator's wishes must be carried out as far as legally possible and a Court will not lightly interfere with a testator's wishes.  

An example where the freedom of testation of a testator will be limited by legislation is set out in the Maintenance of Surviving Spouses Act 27 of 1990 which stipulates that if a marriage is dissolved by death, the survivor will have a claim against the deceased’s spouse’s estate for maintenance until death or remarriage.  This provision is applicable irrespective of the contents and wishes of the testator in the will.

The freedom of testation is primarily limited in two ways, namely that the provisions of the will –• must not be illegal or immoral; or• impossible to carry out or implement.

As a testator you should therefore be cognizant of the ways that your freedom of testation may be limited and also of the fact that a Court will not give effect to a provision in a will if it is against the spirit and objective of the Constitution of South Africa.