Freedom of testation – Can a person disinherit a spouse?

November 1st, 2013

By Edrick Roux

One of the cornerstones of the law of succession in South Africa is the principle of freedom of testation. One of the ideas behind it is that the testator wishes to distribute the assets he or she collected in life to his or her surviving family members in order to care for them and ensure that they are provided for after his or her death. But freedom of testation goes beyond that – these assets can be distributed to whosoever the testator wishes.

A will is the final expression of what the testator wishes to do with his or her earthly belongings. Another principle in South African law is that, when two parties enter into a marriage or a civil union, they create a legal bond and a duty of support or maintenance between them.

However, what happens when these two principles conflict with one another and a person attempts to disinherit his or her spouse? Both of the abovementioned principles are well founded in South African law and have been protected to a large degree in the past. Which then is more important – personal freedom or personal obligations? The ultimate question, therefore, is: Can a person disinherit his or her spouse?

Relevant legislation

Before this question can be answered, it is important to note that there are a number of pieces of legislation that will influence the ability of the testator to effectively bequeath his or her assets. In my view, the most important of which are:

  • The Constitution.
  • The Matrimonial Property Act 88 of 1984.
  • The Maintenance of Surviving Spouses Act 27 of 1990.

The last two Acts mentioned above are, in my opinion, the greatest impediments to true freedom of testation. A maintenance claim is generally devastating to any estate and the matrimonial property regime of the parties can have a significant influence on how a deceased estate is to be administered.

For example, where a marriage is entered into in community of property, it is effectively impossible to exclude the surviving spouse from benefiting from the estate as he or she already owns 50% of it. However, as will be illustrated below, this may well eliminate a potential maintenance claim against the estate.

In the case of a marriage out of community of property, the presence or absence of the accrual system may have the opposite effect and may, in fact, encourage a maintenance claim. Accordingly, it is important to note that there are many considerations that must be taken into account when determining how far freedom of testation extends.

Limits of freedom of testation

While nothing is as precious as freedom, if complete freedom of testation was permitted, this would result in a blatantly unfair situation and would undoubtedly create issues of racism and sexism. Complete freedom of testation does not, however, exist as is clear from the matter of Minister of Education and Another v Syfrets Trust Ltd NO and Another 2006 (4) SA 205 (C) in which it was found that unconstitutional provisions in a will could not be upheld.

The Syfrets matter dealt with a provision in a testamentary trust that was aimed at benefiting persons of European descent who were studying at the University of Cape Town and wished to pursue further studies internationally. The testator added a codicil, which stated that the trust could benefit males of European descent who were not Jewish only.

This matter weighed freedom of testation against the rights and values enshrined in the Constitution, with the result that personal freedom was given less weight than the ideals of a democratic society. The individual had to give way to the needs generated by the moral trends in society and, accordingly, had to conform.

In addition to the above, freedom of testation is primarily limited in two ways, namely that the provisions of the will –

  • must not be illegal or immoral; or
  • impossible to carry out or implement (LAWSA vol 31).

If a provision in a will cannot be excluded on these grounds, the principle of freedom of testation will prevail and the will of the testator must be carried out.

Maintenance limits

A claim for maintenance, on the other hand, is limited in that the party from whom it is being claimed must be able to afford to pay such maintenance and the person claiming it requires it to be paid. The formal prerequisites of a duty of support or maintenance are –

  • a relationship between the parties that gives rise to the need for maintenance;
  • a need to be supported by the party requesting maintenance; and
  • adequate resources on the part of the person who is called on to provide support (LAWSA vol 16).

In Crouse v Crouse 1954 (2) SA 642 (O) it was held that a duty of support is created between persons when they enter into a marriage. Further, if there is insufficient income on the part of a spouse, some assets may need to be liquidated in order for him or her to fulfill this duty of support (see Dodo v Dodo 1990 (2) SA 77 (W)).

Moreover, the courts have in the past stated that in order to fulfil this duty of support, a spouse may be required to do unpaid work in the other spouse’s business or to find other employment (see Plotkin v Western Assurance Co Ltd and Another 1955 (2) SA 385 (W)).

Qualifying for maintenance

Provision is made for a surviving spouse to claim maintenance against the deceased estate. The considerations to be taken into account when determining the maintenance claim are, in terms of s 3 of the Maintenance of Surviving Spouses Act:

  • The amount available for distribution to heirs and legatees.
  • The existing and expected means of the surviving spouse. Further, cognisance must be taken of the financial needs and obligations of the surviving spouse and the expected earning capacity of such spouse over the years.
  • The surviving spouse’s standard of living over the course of the marriage.
  • Any other factor that should be taken into account.

If the application of these factors does not favour the surviving spouse; that is if the surviving spouse had or has a strong financial position, then he or she would not be able to claim for maintenance from the estate, as there would be no need for the spouse to claim maintenance and, accordingly, one of the requirements for a maintenance claim is missing (s 2(1) of the Act provides that the surviving spouse has a claim insofar as he or she is not able to provide therefor from his or her own means and earnings).

Disinheriting a spouse

If a surviving spouse does not require support and there are no children born of the marriage, the spouse does not necessarily have a maintenance claim against the estate. The question then arises as to whether a testator can omit to provide for his or her spouse in a will.

Theoretically, the answer is ‘yes’, since the purpose of a will is to distribute the testator’s estate after death. Throughout life, a testator, at least in a marriage out of community of property, is technically able to circumvent his or her spouse by placing his or her money into separate accounts or by registering property into his or her name, so why should the position after his or her death be any different?

Further, provided there are no other impediments, there is nothing illegal in a person dealing with his or her property as he or she wishes. Prior to the enactment of the Maintenance of Surviving Spouses Act, it seems that a testator could disinherit a spouse and leave him or her destitute without any recourse, save if the marriage was in community of property, in which case the surviving spouse would automatically own 50% of the deceased estate.

This is illustrated in Glazer v Glazer NO 1963 (4) SA 694 (A), in which the court refused to follow prior case law which found that a deceased estate of a father is liable for the maintenance of the children. I submit that, if a court was willing to find that a father could disinherit a child, the same finding could be made in respect of a spouse.

It was for this reason that the Act was enacted – to provide spouses some measure of recourse against the estate of the deceased. If it was impossible for a spouse to disinherit the other, there would be another significant limitation to the principle of freedom of testation and, further, it would not have been necessary for the legislature to step in, save perhaps to set a minimum as to what could be bequeathed to a spouse.

The statements made by the court in the Syfrets matter relating to how the freedom of testation has never been absolute or unfettered, would seem to imply that it is impossible to disinherit the other spouse due to the Act being in operation, but if one considers that the Act is not technically related to inheritance, and the information above, it would seem that the possibility of disinheritance still exists (at para 22).

Therefore, it would seem that, legally, the position that a spouse may disinherit the other spouse is correct, but whether it is morally acceptable is another question, since even though there is no need of support (‘need’ can be defined, inter alia, as ‘circumstances in which something is necessary’ or ‘require [something] because it is essential or very important rather than just desirable’, accessed 3-4-2013), a spouse still has a duty to support (‘duty’ can be defined, inter alia, as a ‘moral or legal obligation; a responsibility’ or as something ‘done from a sense of moral obligation rather than for pleasure’, accessed 3-4-2013). Duty, as can be seen from the above, tends to be more important than the needs of the individual. There is thus, in my view, no reason why the trend should be any different in this regard.

Accordingly, a possible argument is that the duty is always present, insofar as a legal obligation exists, irrespective of the current needs of the spouse in question. Effectively, this will bring morality into dispute, which would be challenging to prove in a court, but would, however, eliminate one of the central elements for validity of a will and may well have the result that the will may be declared invalid.

Irrespective, it must always be considered that if one wishes to challenge the validity of a will, it will generally result in a long, tedious court process that may end up draining already limited resources and ultimately may not be worth the cost of attempting the litigious route, for either the executor or the beneficiaries. I suggest that mediation may be more appropriate to deal with disputes of this nature.

There is also no guarantee of success and, in any litigation, particularly in a matter that has the tendency of being easily seen as being instituted maliciously, there is the threat of a costs order.

The above generally relates to where there are no minor children born. It has been held in South African law that the estate of the deceased owes a duty of support to a minor child (In re Estate Visser 1948 (3) SA 1129 (C)). However, although the claim for maintenance will be available to both parties, where a spouse disposes of the majority of his or her estate and only enough of the estate is left to cater for the needs of the dependants, as is required in terms of his or her duty of support, there is potential for prejudice for both the spouse and minor dependants.

Thus, when a minor child is involved it seems that any provision aimed at disinheriting a spouse without making an alternative arrangement directly aimed at benefiting the minor child and catering for the needs of the child will be contrary to s 28 of the Constitution, irrespective of any maintenance claims, as, I submit, no such bequest can ever be in the best interests of the child, and therefore should in all likelihood affect the validity of the will.

Where there are many or large debts payable by the estate, another potential problem in respect of maintenance is that, in estates, the payment of the debts of the estate takes precedence over the payment of claims for support and, in turn, claims for support take precedence over payment to heirs and legatees. In the event of conflicting claims for maintenance by both the surviving spouse and a minor child the claims must be reduced proportionately. (See LAWSA vol 31, read with LAWSA vol 16 and The Maintenance of Surviving Spouses Act.) The fact that maintenance claims take precedence over legacies and heirs would seem to balance the position somewhat by providing that maintenance should be payable first.

However, the question of whether this order or preference is consistent with s 28 of the Constitution, particularly when both a spouse and a minor child have claims for support, remains open to debate.


From the above, it is clear that a testator has the ability to disinherit a spouse, although in most cases there will be a claim for maintenance brought against the estate, and the testator will still be acting in his or her rights if he or she disinherits his or her spouse. Despite this exercise of his or her rights, personal obligations generally triumph over personal freedom, as can be seen from the existence of the duty of support.

The matrimonial property regime of the parties will significantly influence the exercise of freedom of testation.  A marriage in community of property will generally allow more freedom in a will, whereas a marriage out of community of property will generally lead to lessor freedom in the will. The presence or absence of the accrual system will also influence the situation. Whether this will be harmful or beneficial to the estate depends on which party had the greater accrual.

It is in rare circumstances only that an individual will be able to leave a spouse or a child with nothing when he or she passes on, but it would seem that it is possible to come extremely close to doing so by not providing for them in the will, despite the availability of maintenance claims. If the right combination of factors are present that has the effect of excluding a maintenance claim, then the testator can distribute his assets as he pleases.

Edrick Roux LLB (UP) is a dispute resolution specialist at the National Employers’ Association of South Africa in Pretoria. He was a candidate attorney at MacRobert Inc in Pretoria at the time of writing this article.

This article was first published in De Rebus in 2013 (Nov) DR 48.