The consequences as described by the majority

The consequences as described by the majority

The majority in King N.O. and Others v De Jager and Others stated the following about freedom of testation and the prohibition of unfair discrimination in wills:

The testator’s testamentary freedom finds expression in her ability to dispose of her property in whatever manner she considers necessary.  It is the freedom of testation right that entitles a testator to put in place whatever conditions she likes upon the disposal of her property by means of a will.  And her wishes must be respected and enforced subject to one fundamental condition.  That is whatever method she may choose, in the exercise of freedom of testation, must not be unlawful or contrary to public policy.

Plainly, [the Equality Clause] prohibits every person, including a testator, from unfairly discriminating against another person on one or more of the grounds listed in [the Equality Clause].  Evidently this restricts the scope of the right of freedom of testation.  In exercising the right to dispose of her property, a testator may not unfairly discriminate against another person.  If the manner in which the testator chooses to dispose of her property or the conditions she imposes on that disposal constitutes unfair discrimination against any person, her will becomes inconsistent with [the Equality Clause].” 

It bears emphasis that in our law, no one has a right to inherit the testator’s property.  This includes her children.  And the testator is free to dispose of her estate in a will in whatever way she wishes, provided that she does not breach the law or public policy.  When these principles are kept in mind, a bequeath (sic) to some, and not all, of the testator’s children does not without more constitute unfair discrimination and cannot be rendered ineffective unless it is established that the will creates unfair discrimination.

This is not of meaningful assistance in the drafting of wills or the administration of deceased estates.

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The practical consequences

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Talking Point February 2021

The background

The judgment