You have worked and accumulated assets throughout your lifetime, but what do you do to keep them safe and make sure that your chil
dren and the generations after them, don’t squander them away for whatever reason. Easy, you create a fideicommissum in your Last Will and Testament.
Now you ask, what on earth is a fideicommissum? A fideicommissum is a testamentary provision in terms of which a fiduciary heir (fideicommissary beneficiary) is allowed to possess, use and enjoy the property but is not permitted to dispose of it.
However, the wording that you use in a fideicommissum may upset generations to come, as was the case in King and Others NNO v De Jager and Others 2017 (6) SA 527 (WCC); [2017] All SA 57 (WCC).
In this matter a joint will executed in the year 1902 created fideicommissa over several properties, including commercial farms in Oudtshoorn in the Western Cape. The properties were bequeathed to the testators’ children, both male and female. However, a clause of the will limited the second and third generation fideicommissary beneficiaries to grandsons and great grandsons only, excluding granddaughters and great granddaughters. Furthermore, at the termination of fideicommissa after the third generation of great grandsons, only their male descendants would inherit the properties free of fideicommissa.
The first applicant, an executor together with other co-executors, sought an order amending the will so that all the male and female descendants of the testators could inherit. The executors felt that that by discriminating against female descendants the will was against public policy and contrary to equality provisions of the Constitution.
The application was dismissed with no order as to costs.
Bozalek J held that freedom of testation, according to which testators were free to dispose of their assets in a will in any manner they saw fit, was a basic principle of the law of succession. The principle of freedom of testation was not completely unrestricted since the law allowed for limitations based on social and economic considerations. One of these restrictions is that the courts would not give effect to testamentary provisions if they were against public policy.
In this regard, the general principle is that courts would not authorise the variation of the provisions of a will, save in exceptional circumstances or under statutory authority.
In this matter the court had to choose between perpetuating gender discrimination or undue interference with the right to freedom of testation. Although the fideicommissa discriminated against the female descendants purely on their gender, allowing the right to equality to trump the right to freedom of testation in the present case would produce an arbitrary result.
Even if it was assumed that the female descendant had a right to be treated equally with the male descendants in the exercise by the testators of their freedom of testation, the discrimination against them in terms of the will was reasonable and justifiable, particularly given the importance accorded to the right to freedom of testation.
The disputed provisions of the clause were not contrary to public policy. The general public would not regard the testators’ decision to impose the fideicommissary condition discriminating against female descendants as so unreasonable and offensive that the provisions should be considered as offending against public policy.
Do you agree with the findings of court? Should the freedom of testation outweigh the right to not be discriminated against based on gender?
If you need assistance in protecting your assets for future generations, feel free to contact us.
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