Testamentary freedom versus testamentary duty: in search of a better balance

Authors Karin Lehmann

ISSN: 1996-2088
Affiliations: Senior Lecturer, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2014, p. 9 – 40


This article has three objectives. The first is to demonstrate how restricted freedom of testation is in South Africa. The second is to provide a brief historical account of changing attitudes to freedom of testation in Roman, Roman-Dutch and English law, both in order to explain, and to serve as a counterpoint to, modern South African law. The third objective is to show that despite perceptions to the contrary, freedom of testation is in some senses arguably more restricted in South Africa than it is in our sister jurisdictions. These objectives have a common purpose. That purpose is to remind readers of the values that underpin freedom of testation and of the fact that it is difficult to design restrictions that promote the public interest in the ways intended, without also giving rise to unintended and undesirable consequences. The article sounds the caution that the existing and proposed restrictions may not be as reasonable, in an open and democratic society based on respect for human dignity, freedom and equality, as they first appear to be.