06/06/2025
It’s important to let your Last Will and Testament be done by an attorney familiar with the administration of an estate.
Rejected Will in the Constitutional Court
A key Constitutional Court case in South Africa dealing with a last will and testament that was not accepted is Bekker and Another v Naudé and Others (2003 (5) SA 173 (SCA) ), followed by related constitutional questions in other cases as * King v De Jager and Others (2021). Here’s a brief outline referring to the principles established in these types of cases, especially regarding freedom of testation vs public policy and constitutional values”
Brief Outline of a Rejected Will (Contextual Overview)
1. Case Context:
The Will or testamentary provision was challenged because it contained discriminatory or unconstitutional terms, such as racial exclusion clauses or unfair conditions.
2. Key Legal Issue:
Whether freedom of testation (the right to dispose of one’s property upon death as one wishes) is absolute, or whether it must be limited where it constitutional values, such as equality and non-discrimination.
3. Constitutional Court Findings:
• The Court found that certain clauses in the will were against
public policy as informed by the Constitution.
• Discriminatory conditions in a will (e.g., “only white
beneficiaries”, “no women allowed”. etc.) violate the right to
equality and cannot be enforced, even if they reflect the
deceased’s wishes.
4. Outcome:
• The will or the offending parts of the will were declared invalid
or severed.
• The estate was to be administered without enforcing
unconstitutional provisions.
5. Broader Impact:
• The Judgment reaffirmed that testamentary freedom is subject
to the Constitution.
• Wills must align with public policy and constitutional values,
especially in a democratic society..
Short summary of the King- and Bekker cases.
Case name: King N.O and Others v De Jager and Others [2021] ZACC 4 addressed in the Constitutional Court of South Africa’s of gender-discriminatory clause in a will.
Background:
The case centered on a 1902 joint will by Carel Johannes Cornelius de Jager and Catherine Dorothea De Jager, which established a fideicommissum – a legal arrangement where property is passed down through generations. Clause 7 of this will stipulated that after the death of their children, the property would devolve exclusively to their male descendants, thereby excluding female descendants beyond the first generation.
In 2015, a dispute arose when a grandson of the testators died without male heirs. His five daughters contested their exclusion from inheriting under Clause 7, arguing that it was discriminatory. The High Court acknowledged the discriminatory nature of the clause but upheld it, citing the testators’ freedom of testation. The Supreme Court of Appeal dismissed the subsequent appeal without providing reasons.
Constitutional Court Ruling:
On 19 February 2021, the Constitutional Court unanimously declared Clause 7 unconstitutional and unenforceable, determining that it unfairly discriminated against female descendants. The Court’s reasoning was presented through three separate judgments:
1. Majority Judgment (Jafta J): This judgment held that the
clause was invalid under existing common law principles,
which render provisions contrary to public policy
unenforceable. It emphasized that the Constitution reinforces
this principle and any testamentary provision that unfairly
discriminates based on gender is invalid.
2. Concurring Judgment (Mhlantla J): While agreeing with the
outcome, this judgment argued for the development of
common law to align with constitutional values, particularly
emphasizing the need to address systemiv gender
discrimination in inheritance laws.
3. Concurring Judgment (Victor AJ): This judgment concurred
with the majority but highlighted the importance of the
Promotion of Equality and Prevention of Unfair Discrimination
Act (Equality Act) in addressing such discrimination,
advocating for a statutory approach grounded in
constitutional subsidiarity.
Significance:
This landmark decision underscores that while individuals have the freedom to distribute their estates as they wish, this freedom is not absolute and must align with constitutional principles of equality and non-discrimination. The ruling sets a precedent that discriminatory clauses in wills, particularly those based on gender, are subject to constitutional scrutiny and can be invalidated if found to be unfairly discriminatory.
Case Name: Bekker and Another v Naudé and Others (2003 (5) SA 173 (SCA) )
Court: Supreme Court of Appeal (South Africa)
Summary:
This case concerned the validity of a will that had been signed only on some of its pages, not all.
The deceased, Mr Naudé, had executed a last will and testament that was typed and consisted of multiple pages. However, he had only signed the last page, not each page of the document. His relatives challenged the will, claiming it did not comply with the formalities required by the Wills Act 7 of 1953, specifically the requirement that each page of the will be signed by the testator.
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Legal Issue: Whether a will is valid if the testator has not signed
every page of the document, as required under
South African law.
Judgment: The Supreme Court of Appeal ruled that the will was
invalid because it did not comply with the strict
formal requirements of the Wills Act. The Act
mandates that every page of the will must be signed
by the testator to ensure authenticity and prevent
fraud.
Key Principle: South African succession law requires strict
compliance with formalities for the validity of a will.
A testator must sign each page of the document;
failure to do so renders the will invalid invalid.
Outcome: The Court upheld the invalidity of the will. The
deceased was therefore, deemed to have died
intestate (without a valid will), and his estate had to
be distributed according to the laws of intestate
succession.
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The contents of this- or any one of our newsletters are for general information purposes only and not purpose of providing legal advice. No liability can be accepted for any errors or omissions. For more information on a topic please contact Jaco Du Plessis.
