The Application of Freedom of Testation in the Current Constitutional Dispensation

Abstract

The idea of disposing of property by testamentary bequest has been an enjoyed practice for many years. This mechanism ensured that the wishes of the testator are respected and gave beneficiaries hope and security that after the death of their loved one they would still be taken care of through the bequest, or the estate left by the testator. This was made feasible through a Will which expressed the testator’s last wishes for the dissolution of their property after their death. Today this form of disposition is known as freedom of testation which emanates from the law of succession. However, due to developments in South Africa’s legal system, particularly, the influence of the final Constitution of 1996, freedom of testation was affected. In light of South Africa's constitutional dispensation, this study shall analyse how the Constitution of the Republic of South Africa, common law and legislation have changed and reshaped how the courts interpret the provisions of testamentary instruments and freedom of testation.