The principle of freedom of testation allows an individual (a testator or testatrix) to bequeath their property to whomever they choose upon their death. Simply put, it means that a person has the right to decide what should happen to their property after they pass away. However, like any other right, freedom of testation is not absolute and is subject to certain limitations.

The limitation discussed in this short article is based on my experience as a legal advisor and the trends I have observed when clients draft their wills.

For purposes of context, consider the following scenario:

In 2001, Mr X, a person of Xhosa descent, sent delegates to the family of Ms Y to pay lobolo. The delegates paid the required amount, and Ms Y was subjected to the “inyoko” (bile) ritual and given a Xhosa name. No antenuptial contract was concluded prior to the union. The customary celebrations were conducted in accordance with tradition, and two children were subsequently born from the relationship. Mr X and Ms Y never registered their marriage with the Department of Home Affairs, and Ms Y retained her maiden surname.

After living together for many years, the relationship between Mr X and Ms Y began to deteriorate in 2025. The situation became so strained that their daughter developed resentment towards Mr X. In 2026, Mr X drafted a will. The will complied with all the legal formalities required for validity and stated that he was unmarried. He further directed that his entire estate should devolve to his son alone.

If Mr X were to pass away and the will had to be administered, this article explores some of the limitations that may affect the implementation of his wishes.

The Recognition of Customary Marriages Act 120 of 1998 (“the RCMA”) addresses both the validity of customary marriages and the matrimonial property consequences thereof. If Ms Y can prove the existence of a valid customary marriage, the marriage would, in the absence of an antenuptial contract, be deemed to be in community of property. This would mean that a joint estate was created, of which Ms Y would be entitled to a 50% share.

While this would not invalidate Mr X’s will, it would limit the extent of the property that he could lawfully bequeath. Mr X would only be entitled to dispose of his 50% share of the joint estate. For example, if the joint estate included a house and Mr X intended for his son to inherit the entire property, he could only bequeath his half share. Ms Y would remain entitled to her 50% interest in the property.

Another limitation may arise where a dependant has been excluded from the will. Assume that at the time of Mr X’s death, his daughter, with whom he had an estranged relationship, was not financially self-supporting and had been disinherited. In such circumstances, the Maintenance Act and the common-law duty of support become relevant.

South African law recognises a legal duty on parents to maintain their children. Accordingly, notwithstanding her exclusion from the will, the daughter may have a claim for maintenance against the deceased estate if she is a minor or is otherwise unable to support herself. Such a claim may be pursued through the appropriate legal processes, and a court may determine the amount of maintenance to which she is entitled based on the circumstances of the case.

Although the wishes of Mr X would be taken into account, it is important to recognise that a deceased estate may be subject to various claims after the testator’s death. These claims can significantly affect the distribution of assets.

For this reason, it is essential for legal practitioners to obtain all relevant information that may have an impact on a client’s estate during consultations. Legal advisors should meaningfully engage with clients regarding potential risks, legal obligations, and possible claims that could arise after their death.

Wills remain one of the most effective estate planning tools available. However, they can only achieve their intended purpose when they are drafted with full disclosure and a proper understanding of the legal implications. Estate planning tools should not be used to evade legal obligations or prejudice the rights of dependants and spouses. Rather, they should be utilised to ensure that beneficiaries and heirs receive what is lawfully due to them and that a person’s estate is administered in an orderly and legally compliant manner.

Author: Masego Tshele | LLM Candidate (Estate Law)

Sister In Law mentee (2025)

IG: @masego_tshele

LinkedIn: Masego Tshele