Thesis (LLD)--University of Stellenbosch, 2000. / ENGLISH ABSTRACT: Freedom of testation is one of the underlying principles of the South African law of testate succession. South African testators may therefore dispose of their assets by way of will in any manner they deem fit. This freedom is however not absolute and is indeed restricted in accordance with certain social and economic considerations - some of the restrictions on free testamentary disposition originated at common law while others are couched in the form of statute. The boni mores or legal convictions of the community is one of the socially founded mechanisms which operate to limit freedom of testation in South African law. The South African legislature as well as the South African courts have however been somewhat remiss in attending to (and rejuvinating) the legal position regarding the restriction of freedom of testation in terms of the boni mores. The need for legal development in this area is all the more acute in view of South Africa's new constitutional dispensation - the interpretation and application of South Africa's final Constitution has rendered the influence of constitutional rights and principles on private law (and therefore also on freedom of testation) a pertinent legal issue. In view of the above-mentioned considerations, this work entails a general study of freedom of testation with specific reference to the application of a constitutionally founded boni morescriterion on the restriction of free testamentary disposition. This study proceeds with due cognisance of relevant juridical, social and economic considerations which provide a basis for both freedom of testation and its limitation. In this regard a historical perspective is obtained at the outset through an analysis of the approach to freedom of testation in Roman and Roman-Dutch law. The position with regard to South African law is thereafter investigated. The "traditional" approach to freedom of testation (and its restriction) is examined first, whereafter the possible impact of relevant provisions of the South African Bill of Rights on free testamentary disposition is considered from a theoretical perspective. A comparative study then follows. In this regard the approach to freedom of testation in both common law and continental or civil law legal systems is investigated. English and Australian law are considered as examples of the former while Dutch, Belgian and German law are considered as examples of the latter. The investigation into all the legal systems mentioned above has a dual focus. On the one hand the support which is rendered to freedom of testation in each legal system is considered. This support is readily founded on the acknowledgement in each system of private ownership and hence private succession, the latter which in turn acknowledges testamentary freedom. Other elements of the law of testate succession which render support to freedom of testation in each system are also examined. The restriction of free testamentary disposition in each legal system is investigated on the other hand. This investigation is principally focused on the impact of the boni mores, legal convictions of the community, public interest, public policy (the last-mentioned consideration is of particular importance in common law legal systems) and the good morals (particularly relevant in civil law legal systems) on the restriction of freedom of testation. Proposals for a future approach to the restriction of freedom of testation in South African law in accordance with a constitutionally founded boni mores-criterion are advanced in the closing chapter. The principal proposal in this regard is couched in the form of a new statutory provision which would best address the legal problem under discussion. This proposal is then illustrated with reference to practical examples. / AFRIKAANSE OPSOMMING: Testeervryheid vorm een van die grondslae van die Suid-Afrikaanse testate erfreg. Suid- Afrikaanse testateurs kan dientengevolge na goeddunke by wyse van testament oor hul bates beskik. Hierdie vryheid is egter nie absoluut nie en word ooreenkomstig bepaalde sosiale en ekonomiese oorwegings beperk - sommige beperkings is gemeenregtelik van aard terwyl andere in wetgewing beslag kry. Die boni mores of regsgevoel van die gemeenskap is een van die sosiaal-gefundeerde meganismes aan die hand waarvan testeervryheid in die Suid- Afrikaanse reg beperk word. Sowel die Suid-Afrikaanse wetgewer as die Suid-Afrikaanse howe het egter in onlangse tye in gebreke gebly om die regsposisie ten opsigte van die beperking van testeervryheid ingevolge die boni mores te vernuwe. Regsontwikkeling op hierdie gebied is des te meer noodsaaklik in die lig van Suid-Afrika se nuwe grondwetlike bedeling - die invloed van grondwetlike regte en beginsels op die privaatreg (en derhalwe ook op testeervryheid) word geredelik deur die interpretasie en toepassing van Suid-Afrika se finale Grondwet aan die orde gestel. In die lig van bogenoemde oorwegings word 'n studie van testeervryheid in die algemeen en die aanwending van 'n grondwetlik-gefundeerde boni mores-maatstaf ter beperking van testeervryheid in die besonder in hierdie werk onderneem. Die studie geskied deurgaans aan die hand van tersaaklike juridiese, sosiale en ekonomiese oorwegings wat sowel testeervryheid as die beperking van dié vryheid fundeer. In hierdie verband word 'n historiese perspektief ter aanvang verkry deurdat die benadering tot testeervryheid in die Romeinse en Romeins- Hollandse reg ontleed word. Die posisie in die Suid-Afrikaanse reg word daarna op tweeledige wyse ondersoek. Die "tradisionele" benadering tot testeervryheid (en die beperking daarvan) word enersyds onder die loep geneem waarna 'n teoretiese perspektief op die moontlike invloed van tersaaklike bepalings van die Suid-Afrikaanse Handves van Regte op testeervryheid andersyds verkry word. 'n Regsvergelykende studie word daarna onderneem. In hierdie verband word die benadering tot testeervryheid in sowel "common law"- as kontinentale of "civil law "-regstelsels beskou. Die Engelse en Australiese reg word as voorbeelde van eersgenoemde ontleed terwyl die Nederlandse, Belgiese en Duitse reg as voorbeelde van laasgenoemde beskou word. Die fokus van die ondersoek na al die regstelsels hierbo vermeld, val enersyds op die onderskraging wat in elke regstelsel aan testeervryheid verleen word. Sodanige onderskraging spruit geredelik uit die erkenning in die onderskeie regstelsels van private eiendomsreg en derhalwe private erfopvolging, laasgenoemde wat weer op die erkenning van testeervryheid dui. Ook ander elemente van die testate erfreg wat in elke van die genoemde regstelsels ter onderskraging van testeervryheid funksioneer, word beskou. Die beperking van testeervryheid in elk van die regstelsels word andersyds ondersoek. Die fokus val in hierdie verband veralop die invloed van die boni mores, regsgevoel van die gemeenskap, openbare belang, openbare beleid (laasgenoemde veral relevant in "common law"-regstelsels) en die goeie sedes (veral relevant in kontinentale regstelsels) op die beperking van testeervryheid. In die slothoofstuk word voorstelle omtrent 'n toekomstige benadering tot die beperking van testeervryheid in die Suid-Afrikaanse reg aan die hand van 'n grondwetlik-gefundeerde boni mores-maatstaf gemaak. Die vernaamste voorstel in hierdie verband vind beslag in 'n nuwe statutêre bepaling wat die onderhawige regsprobleem ten beste sal aanspreek. Hierdie voorstel word ten slotte aan die hand van praktiese voorbeelde toegelig.

Part of habilitation - Universität, Regensburg, 2001.

Thesis (doctoral)--Passau, Universiẗat, 2007/2008. / Includes bibliographical references (p. [125]-130) and index.

Freedom of testation is distinct from the right of a testator to nominate the executor of his choosing. Regulation 910 allows for the administration of deceased estates by the surviving spouse, person related by consanguinity to the deceased, or persons nominated as executor in a will. It will be purely incidental if such person has any idea how to administer an estate. Chief Master’s Directive 20 of 2015 further provides that the Master may not insist on the appointment of an agent to assist the executor where a person was nominated as such in a will, consequently leaving the estate to be administered by a layperson. The Courts have hinted towards the need for a figure such as the independent executor. An independent executor is a person who has no conflict between his own interests and his interests as an executor. Although a testator has the freedom to nominate an executor in terms of the Administration of Estates Act, such a nomination is distinct from the right to freedom of testation. If the legislator were to intervene by amending the law to only permit for independent outsiders to administer deceased estates, this will not be a limitation on the right to freedom of testation. Furthermore, an independent outsider as trustee in family trusts is a requirement. It is argued that the same should be implemented with appointing executors. The Master has enacted forms that must be lodged by trustees to determine whether a trustee is an independent outsider. Similar forms do not exist for the appointment of executors, but should be required. This dissertation works toward the recommendation that the legislator needs to intervene to permit only independent outsiders as executors. The Master must be put in a position whereby he can proactively determine whether a person is an independent outsider, rather than having to remove an executor after receiving a complaint by an aggrieved party. Such an independent executor must then be assisted by a professional person with the necessary skills and knowledge to administer an estate, thereby protecting the interests of the estate. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Private Law / LLM / Unrestricted

It is surmised that the Maintenance of Surviving Spouses Act 27 of 1990 can be classified as a very profound, yet acceptable limitation on a married person’s right to freedom of testation. This research provides an exposition as to the background of the Act, the promulgation thereof, as well an exposition of provisions of the said Act and a critical analysis of these provisions. At common law, before the promulgation of the Maintenance of Surviving Spouses Act, a surviving spouse had no right to claim maintenance from the estate of the first dying spouse. This research shows that the main proponents for the disallowance of a claim for maintenance by the surviving spouse, can be attributed to two prominent features, namely, a person’s right to freedom of testation and due to the fact that there was no duty of support on the first dying spouse’s estate. The aim of this dissertation is to give an analysis as to the accessibility to a claim for maintenance in terms of the Maintenance of Surviving Spouses Act, as well as to outline certain issues that have been experienced thus far. As a point of departure, an exposition is given as to the reasoning and the purpose for the promulgation of the Act. An examination is further made as to what denotes a “spouse” in order to be eligible to qualify for a claim, as the Act has failed in giving a concise definition in this regard. This aspect is investigated from a traditional standpoint, as well from the standpoint based on constitutional principles. The research furthermore focuses on the determination of the claim itself, the factors that must be taken into consideration to ascertain if a claim is allowable against the estate of the first dying spouse and how the executor is to deal with the said claim. In conclusion, this research provides certain recommendations that could assist in striking a balance between the allowance of a claim against the estate of the first dying spouse, as well as the ultimate beneficiaries who would have benefitted in terms of the will, or in terms of the law of intestate succession. / Mini Dissertation (LLM)--University of Pretoria, 2019. / Private Law / LLM / Unrestricted

The concept of testamentary freedom has traditionally been associated with the law of succession in jurisdictions with legal regimes based on the common-law system. This concept became subject to abuse and dependents of deceased testators were sometimes left to the mercy of the community for their support. New Zealand was the first jurisdiction to counteract this abuse by introducing in its law, dependents' relief legislation which, essentially, acted as a flexible restraint on testamentary freedom. This concept retained the traditional testamentary freedom, yet, the courts were given the authority to remedy any abuses of such freedom. The Canadian common-law provinces through a period of sixty-four years have adopted legislation similar to that enacted in New Zealand. In Canada, the concept has worked, on the whole, well. Many Canadian jurisdications have, through the years, adjusted their original legislation to meet what appears to be contemporary norms. The province of Ontario has undertaken extensive reform, and to a certain extent, has attempted to reconcile the provisions of succession law with that of matrimonial property rights. The province of Ontario appears to have achieved some degree of harmony between the two legal concepts. The province of British Columbia on the other hand, although the issue has been the subject of a study and a Report of the Law Reform Commission of British Columbia, has retained the legislation as originally enacted in 1920. The jurisprudence has, however, interpreted the statute with such inconsistency that the statute has gone beyond its remedial purpose and has been interpreted as a form of forced heirship. This interpretation cannot be supported by the wording of the statute, nor by its historical intent. This thesis surveys the various enactments commencing with the one in New Zealand, the progenitor statute, and continuing with those of the Canadian provinces and finally, the U.K. statute. There is also a general comparison of contemporary legislations. The jurisprudence in British Columbia is analysed from the enactment of the legislation and the shifts that the courts have undertaken over the past sixty-eight years are considered. In addition to the philosophical defect of the B.C. legislation, certain technical deficiencies are also considered. The present law of Ontario, which has been the subject of extensive reform, is analysed and compared with that Province's previous legislation as well as that of the province of British Columbia. The effect of the present state of law interpreting the British Columbia legislation is such that it can be said that as it stands, it has outlived its social utility and requires review to meet contemporary social norms. The general recommendation is that dependency be a condition precedent to an application for relief, and that the spouse be entitled as of right, in any event, to half of the family assets. The investigation for this thesis consisted, primarily, of analysis of the legislative debates, appropriate statutes and the applicable jurisprudence interpreting such statutes. / Law, Peter A. Allard School of / Graduate

The South African concept of freedom of testation is one of the most absolute concepts of freedom of testation in westernised legal systems. It is suggested that the South African concept of freedom of testation is a memento of capitalist patriarchy. As the South African legal system practices a nearly absolute concept of freedom of testation, capitalist patriarchy has maintained masculine control of property in South Africa and perpetuated the systems of male dominance prevalent in South Africa. Freedom of testation allows for wealth to pass from one male to another. It also allows entrenched gender roles to continue by excluding women from inheriting. Thus the South African law of testate succession and its central concept of freedom of testation allows for discrimination on the ground of gender. / Jurisprudence / LL.M

The South African concept of freedom of testation is one of the most absolute concepts of freedom of testation in westernised legal systems. It is suggested that the South African concept of freedom of testation is a memento of capitalist patriarchy. As the South African legal system practices a nearly absolute concept of freedom of testation, capitalist patriarchy has maintained masculine control of property in South Africa and perpetuated the systems of male dominance prevalent in South Africa. Freedom of testation allows for wealth to pass from one male to another. It also allows entrenched gender roles to continue by excluding women from inheriting. Thus the South African law of testate succession and its central concept of freedom of testation allows for discrimination on the ground of gender. / Jurisprudence / LL.M

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2022 / We live in a Fourth Industrial Revolution(4IR) era where people exchange goods and services through the internet. Such transactions and communications are regulated by the Electronic Communications and Transactions Act (ECTA) 25 of 2002. The ECTA however amongst others, excludes the execution of testamentary wills from its application thus leaving no room for electronic wills. The execution of a valid will in South Africa is governed by the Wills Act 7 of 1953. Against this background, the study investigates whether the presence of enhanced 4IR innovations and methods have the potential to render the Wills Act obsolete and how the exclusion in the ECTA will contribute towards the formation of legal gaps in the law of succession. In confronting these questions, the study seeks to create a synergy between the two abovementioned statutes. The formalities of a valid will are contained in section 2(1) of the Wills Act, it can be deduced from them that a will should be in writing and signed by the testator and two witnesses. Any will not complying with the formalities is dependent upon the discretion of the High Court for validity as per section 2(3) of the Wills Act. The cases of MacDonald v The Master 2002 5 SA 64 (N) and Van der Merwe v The Master 2010 6 SA 546 (SCA) have confronted issues that relate to wills executed in electronic formats. The study interrogates the meaning of ‘writing’ and ‘signature’ and their significance and probes whether they can be fulfilled using electronic means. A comparative approach is adopted to establish the status of electronic wills in the USA and UK. The USA has promulgated legislation to deal with electronic wills and the UK has initiated the process of adopting their own electronic wills legislation in response to the 4IR. With the lessons learned from these jurisdictions the study makes recommendations on how synergy can be created between the Wills Act and the ECTA.

The study commences with a brief overview of the history of marriage and specifically of marriage in community of property with reference to marital power. The unique ex lege consequences of marriage in community of property is comprehensively discussed. The Constitutional Court decision in Harksen v Lane determined the test for unconstitutionality. The test for unconstitutionality is discussed with specific reference to the Bill of Rights. The Constitutional Court's decision in Volks v Robinson is critically evaluated as the Court propounded the so-called "choice argument" in terms of which people purposefully decide to marry instead of cohabiting and therefore the law may accord certain benefits to married people which are not available to unmarried life partners. The Constitutional Court decisions in Van der Merwe v RAF as well as its consequences are discussed. It concluded that section 18(b) of the Matrimonial Property Act constituted unjustifiable discrimination between spouses married in community of property and those married out of community of property and the said section was therefore declared unconstitutional. The law of insolvency in respect of the joint estate of spouses married in community of property is investigated. Freedom of testation and case law relating thereto is considered briefly. The study concludes with the submission that the common law provision that separate assets of a spouse in a marriage in community of property form part of the joint insolvent estate even if a testator expressly determined in his will that a bequest will not form part of the joint estate of a beneficiary, amounts to unfair discrimination and is unconstitutional. t is submitted that the principle unfairly discriminates between spouses married in community of property and those married out of community of property on the ground of marital status. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015