The freedom to decide how your assets will be distributed after death—known as freedom of testation—is a cornerstone of South Africa’s law of succession and enjoys protection under the Constitution. Yet, it’s important to know that this right is not absolute. A testator’s wishes are subject to a range of statutory, common law, and public policy limitations designed to protect dependants, surviving spouses, and other affected parties – and understanding these boundaries is essential to drafting a valid and enforceable Will.
Common law limitations
Under our common law, it’s essential that the contents of a Will comply with legal and moral principles. As such, a bequest that is unlawful, against public policy, too vague, or impossible to execute may be declared invalid. For instance, leaving property to a child on condition that they divorce their spouse or renounce their faith would be unenforceable as contrary to public policy. Similarly, an instruction that is impossible to fulfil—such as gifting property that the testator does not own—will have no effect.
Another common law limitation arises from the duty of support. A parent’s obligation to maintain their minor children does not end with their death – meaning that if a parent’s Will fails to make adequate provision for a dependent child, that child (through their guardian) can lodge a claim for maintenance against the estate. This claim enjoys preference over those of heirs and legatees. While adult children may also claim maintenance, they will need to prove financial dependency. Likewise, any court-ordered maintenance obligations in effect at the time of death—such as spousal or child maintenance—remain binding on the estate and must be considered when determining estate liquidity.
The Wills Act: Divorce and delayed updates
Section 2B of the Wills Act 7 of 1953 limits the inheritance rights of a former spouse immediately following a divorce. If a testator dies within three months of a divorce, any bequest to their former spouse will be treated as though the spouse had predeceased them—unless the Will expressly states otherwise. After this three-month window, if the testator has not updated their Will, the law presumes they intended their former spouse to inherit. In practice, this means that failure to review your Will promptly after a divorce could result in unintended consequences, particularly where blended families or minor children are involved.
Marriage in community of property
Couples married in community of property share a joint estate in equal, undivided halves. This means that when the first spouse dies, only 50% of the joint estate belongs to the deceased and can be disposed of in terms of their Will. The surviving spouse automatically owns the other half, and the executor must account for this division when winding up the estate. In essence, a spouse cannot bequeath more than their share of the joint estate—an important consideration when planning bequests, especially if the estate’s liquidity is limited.
Marriages with the Accrual System
Where spouses are married out of community of property with the inclusion of accrual, the value of each spouse’s estate growth during the marriage is compared when the marriage ends through death or divorce. If the deceased’s estate shows the greater accrual, the surviving spouse may have a claim against the estate for 50% of the difference. It’s important to know that this accrual claim is a preferent claim and must be settled before any assets are distributed to heirs. As such, estate planners should always calculate potential accrual claims when assessing liquidity and deciding how assets are to be divided.
Maintenance of surviving spouses and life partners
The Maintenance of Surviving Spouses Act 27 of 1990 further limits testamentary freedom by granting a surviving spouse the right to claim reasonable maintenance from the deceased estate if they have not been adequately provided for. This claim applies regardless of the marital property regime and takes into account the surviving spouse’s living standard, their ability to provide for themselves, and the value of the estate available for distribution.
Recent case law has extended this right to qualifying life partners in both same-sex and opposite-sex relationships. In 2022, the Constitutional Court confirmed in Bwanya v The Master of the High Court that a surviving permanent life partner in a heterosexual relationship who was financially dependent on the deceased has the same right to claim maintenance as a surviving spouse. This landmark judgment significantly expanded the protection available to surviving partners who were not married in law but shared a life akin to marriage.
Retirement fund benefits
A crucial statutory restriction on freedom of testation is found in Section 37C of the Pension Funds Act 24 of 1956, which governs the distribution of retirement fund death benefits. These benefits do not form part of the deceased’s estate and therefore cannot be disposed of in terms of a Will. Instead, the fund trustees are legally obliged to identify and allocate benefits to the deceased’s financial dependants and nominees, based on their level of dependency. This may include people who were not legally dependent—such as ageing parents or a cohabiting partner—but who relied on the deceased financially.
The trustees’ decision-making process can take up to 12 months, during which they must balance fairness, dependency, and the deceased’s wishes as reflected in the nomination form. For this reason, testators should avoid referring to retirement fund benefits in their Wills, as these assets fall outside the executor’s jurisdiction.
Subdivision of agricultural land
Owners of agricultural property face another notable limitation under the Subdivision of Agricultural Land Act 70 of 1970, with the Act prohibiting the subdivision of agricultural land without ministerial consent. As such, a farmer cannot bequeath portions of the same farm to multiple beneficiaries unless prior subdivision approval has been granted – and failure to comply may render the relevant provisions of the Will unenforceable. To avoid this, farmers often transfer ownership of the land into a company or inter vivos trust, allowing heirs to inherit shares or beneficial interests rather than the physical land. However, such restructuring can have significant tax and estate-planning implications, making professional advice essential.
Limitation on fideicommissary bequests
A fideicommissum—a mechanism allowing property to pass successively through generations—was historically used to preserve family estates. However, Section 6 of the Immovable Property (Removal or Modification of Restrictions) Act 94 of 1965 limits fideicommissary substitutions to two successive transfers. After this, the property passes to the next heir free of restriction. While still used in some family estate structures, fideicommissa have become less common due to their administrative complexity and the rigidity they impose on heirs.
Other modern considerations
Modern estate planning must also take into account digital assets, such as online banking profiles, cryptocurrency wallets, and social media accounts, which can hold both monetary and sentimental value. While these are not yet comprehensively legislated in South Africa, testators are encouraged to record access details securely and specify how they wish such assets to be handled. Similarly, testators should consider foreign assets, as different jurisdictions apply different succession laws that can override South African Wills.
While South Africans enjoy extensive freedom of testation, this right is circumscribed by public policy, statutory duties, and equitable considerations. A Will that ignores these constraints risks partial invalidity, legal disputes, or unintended hardship for dependants. Effective estate planning, therefore, requires more than a template—it requires legal insight, liquidity analysis, and an understanding of how personal wishes intersect with the law. Working with a qualified estate planner ensures that your Will is not only a reflection of your wishes but also a document that can stand the test of law and life.
Have a fabulous day.
Sue
