The practical consequences
Challenges regarding a testator potentially not benefitting his or her parents, spouse, children, grandchildren, and the like equally, will arise:
when the testator (has drafted and) signs the will (testament);
when the testator’s life ends; and
in the process of the administration of the deceased estate.
At this early juncture, we illustrate only some of the questions, rather than provide the answers.
If there is a dispute amongst heirs (and/or potential heirs) concerning averred unfair discrimination, the following procedure will apply in terms of the Equality Act.
If the complainant (the complaining heir) makes out a prima facie case of discrimination:
the respondent (the heir defending the will) must prove, on the facts before the court, that the discrimination did not take place as alleged; or
the respondent must prove that the conduct (by the deceased testator) was not based on one or more of the prohibited grounds in the Equality Clause (plus HIV/AIDS status).
If the discrimination did take place, then it is unfair, unless the respondent proves that the discrimination is fair.
Assume a testator does not benefit his or her children equally, and the children are of different genders, be that a mix of male, female, agender, transgender, gender non-conforming, non-binary, or another gender, that unequal treatment alone ought to be sufficient to establish a prima facie case of discrimination.
The respondent will then be required to prove that the different treatment of the children by the testator was not based on the gender, sex, or sexual orientation of the complainant.
The respondent will perforce not be able to call the (deceased) testator as a witness to explain himself or herself. Yet, the testator will probably be the only person who actually knew his or her motivations for not benefitting the children equally. So, who should the respondent call to give what evidence to prove that the different treatment of the children by the testator was not based on the gender, sex, or sexual orientation of the complainant?
If the respondent fails to prove that the different treatment of the children by the testator was not based on the gender, sex, or sexual orientation of the complainant, the respondent will be required to prove that the discrimination is fair.
In terms of the Equality Act, the factors to be considered in determining whether the respondent has proved that the discrimination is fair include “the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage“. So, as examples, as the respondent:
a straight male will probably not be able to prove that the discrimination is fair vis-à-vis any other gender sibling; and
a straight female is unlikely to prove that the discrimination is fair vis-à-vis an agender, transgender, gender non-conforming, non-binary, or another gender sibling, excluding of course a straight male.
Another question concerns the date at which the assessment of fair or unfair discrimination must be made. Is it the date of the will, the date of death of the deceased testator, or the date of the litigation?
Assume, in a will signed in 2000, a testator does not benefit his or her two children equally, and the testator leaves the lion’s share of the estate to the child with a positive HIV/AIDS status. A few years, later, the other child also has a positive HIV/AIDS status. When the testator dies in 2020, both children have a positive HIV/AIDS status. Is the discrimination still fair? Will a court consider the failure of the testator to “update” his testament as unfair discrimination?
What are the obligations of a legal practitioner advising a prospective testator who wishes to benefit his or her children unequally? If any, the cost of making a will may increase substantially.
Assume a testator does not benefit his or her children equally, and the children are not of say identical race, gender, sex, sexual orientation, religion, or belief, must the executor of the deceased estate investigate whether the different treatment of the children by the testator was or was not based on one or more of those grounds? And if so, must the executor investigate whether the discrimination is fair? If the answers are in the affirmative, a prudent executor may well initiate Equality Act litigation in many an instance in which there is such unequal treatment of children.
Is it reasonable for a testator to bequeath an entire estate to a spouse, despite the testator having children? Will the conduct not be based on age or marital status? (This question is stated in the negative because the respondent will bear the onus of proving the negative.) If so, the factors to be considered in determining whether the respondent has proved that the discrimination is fair will include “whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.” Thus, if the value of the estate of the testator spouse is say R2 million, the age or marital status discrimination may be fair; but if the value of that estate is say R200 million, the answer may be different.
What is sauce for the goose is sauce for the gander. Challenges regarding a parent not benefitting his or her parents, spouse, children, grandchildren, and the like equally, when making a donation, may well also arise. But that is a topic for another day.