Understanding freedom of testation

FREEDOM of testation allows you to do what you like with your worldly possessions, as long as you do it legally.

However, there are a few important exceptions to keep in mind.

Freedom of testation effectively means that you have full discretion when it comes to choosing who you want to leave your assets to in your will.

This is in stark contrast to some European jurisdictions, where civil law forms the basis of succession law and imposes forced heirship.

In South Africa, you are allowed to disinherit any person, including a spouse or a child.

However, there are certain important exceptions to this rule, such as if claims are:

1. For the maintenance of dependants.

2. By a surviving spouse (in terms of the Maintenance of Surviving Spouses Act).

3. In terms of the accrual system created by the Matrimonial Property Act.

Another limitation to freedom of testation is that all wills must comply with the provisions of the Constitution of South Africa.

Any provision that is contrary to these requirements will be invalid. Maintenance obligations

Your obligation to maintain and support a child or spouse will be determined by considering their circumstances.

The Children’s Act provides for the maintenance of minor children and states that it is obligatory to pay maintenance for children until they reach the age of 18.

After this, the child can approach the court to extend maintenance payments if they can show with good reason that the need still exists. Different marital regimes

Your marital regime can have a significant effect on your estate and your spouse’s right to institute a claim for maintenance.

There are three marital regimes recognised in South Africa, namely: 1. In community of property. 2. Out of community of property, with the accrual system.

3. Out of community of property, without the accrual system.

The default marital regime in South African law is in community of property. This means that each spouse has an equal (half) share in the joint estate.

Practically, even if a spouse is disinherited, the surviving spouse will not be left destitute as they already own half of the joint estate.

However, if a marriage is out of community of property without the accrual system and the person wishes to disinherit his or her spouse, it could leave the spouse destitute if he or she has no alternate source of income.

To mitigate this, the government enacted the Matrimonial Property Act in 1984. In doing so, it introduced the accrual system.

Understanding the accrual system

This means that assets acquired before the marriage remain those of the individual spouses, but gains made during the marriage are equally shared when the marriage dissolves (either due to divorce or the death of a spouse).