STUDY UNIT 7

Question 1

FREEDOM OF TESTATION

Answer 1

freedom of testation is the freedom of a person to dispose of his or her estate as he or she wishes.

Question 2

VOLUNTAS TESTATORIS SERVANDA EST

Answer 2

the will of the testator has to be complied with.

Question 3

LIMITATIONS TO THE FREEDOM OF TESTATION

Answer 3

1. Statutory limitations
2. Common law limitations
3. Constitutional limitations
4. Indirect limitations

Question 4

STATUTORY LIMITATIONS

Answer 4

Immovable Property Act:
-the testator cannot prevent the alienation of land by means of long-term fideicommissa.

Question 5

COMMON-LAW LIMITATIONS

Answer 5

a. Conditions that interfere with the beneficiary’s marital relationship:
-in terms of common law, the testator cannot leave a benefit to a beneficiary who has never been married on the condition that they never get married.
- this condition is void.

b. Conditions limiting the beneficiary’s freedom of movement:
-under common-law, a testator may provide that a beneficiary must live in a particular place or on a specific property.
-this condition is valid and enforceable.

Question 6

CONSTITUTIONAL LIMITATIONS

Answer 6

Sections 9, 15, 18 and 21 of the constitution

Question 7

INDIRECT LIMITATIONS

Answer 7

a. Maintenance of children: the maintenance and education of minor children remains obligation on the estate and do not die with the testator.
b. Maintenance of surviving spouse: the spouse shall have a claim against the estate of the deceased spouse for the provision of his or her reasonable maintenance needs until his or her death or remarriage.

Question 8

Factors looked into:

Answer 8

1. the amount in the estate of the deceased spouse that is available for distribution to the heirs and legatees.
2. the existing and expected means, earning capacity, financial needs and obligation of the surviving spouse.
3. the surviving spouse’s standard of living during the subsistence of the marriage and his or her age at the death of the deceased spouse.

Question 9

Power of Appointment

Answer 9

testators have the power to appoint whoever they want as beneficiaries.

Question 10

Fundamental rule

Answer 10

a testator himself must make his will and cannot commit the discretion as to who shall be beneficiaries under his will to others.

Question 11

Two exceptions to the FUNDAMENTAL RULE

Answer 11

1. BEQUESTS FOR CHARITABLE PURPOSES: the testator may authorize a beneficiary or an administrator to his or her estate to appoint specific beneficiaries.
2. DELEGATION TO THE BEARERS OF INTERIM RIGHTS: bearers of interim rights are beneficiaries who only have limited rights to the assets of the testator’s estate and are obliged to hand over those rights to other beneficiaries.