AMANDA VISSER: In South Africa we have freedom of testation. However, this freedom is not unlimited, as a very recent case that went all the way to the Constitutional Court shows. The case concerns a will that was executed over 100 years ago. The court had to grapple with the question of whether a court may encroach on freedom of testation in the context of private wills. My name is Amanda Visser and to take us through the salient points of this case is Louis van Vuren, CEO of the Fiduciary Institute of Southern Africa. Louis, could you give us a little bit of background to this case?
LOUIS VAN VUREN: Yes, Amanda. A certain Mr and Mrs De Jager executed a joint will in November 1902. In this will they bequeathed certain fixed properties, including some farmland, to their children irrespective of gender. They had four sons and two daughters. So, the four sons and two daughters inherited these six properties, including the farmland. The will created what is known in law as a “fideicommissum”, providing that upon the death of each of the testator’s children, the property inherited by a child must go to his or her male children and, after that grandchild’s death, to his male children.
Now, a fideicommissum is what is known in law as a limited right. The bequest to the first generation is subject to the condition that upon their death it must go to the next set of heirs, and upon their death to the final set of heirs; it’s limited to two successive transfers to the next generation of heirs.
Now, one of the grandchildren of the original testator, Mr Kalvyn de Jager, died in 2015, leaving only five daughters. He had no sons. And according to the terms of the 1902 will, the fixed property that he inherited should have gone to the sons of one of his brothers, and the fideicommissum clause basically bequeathed just to male descendants from the grandchildren onwards. The executor of Mr de Jager’s deceased estate and the five granddaughters, Mr de Jager’s five daughters, then approached the Cape High Court for an order declaring that the terms of the 1902 will constituted unfair discrimination against the five granddaughters, because it discriminated against them on the basis of gender, which is of course one of the prohibited grounds in Section 9 of the Constitution.
AMANDA VISSER: So how did this end up in the Constitutional Court?
LOUIS VAN VUREN: Well, as I said, they first went to the Cape High Court. The Cape High Court ruled that the discrimination was justifiable in an open and democratic society under the provisions of Section 36 of the Constitution because the common law provides for freedom of testation, and nobody in South Africa has a right to inherit.
Our law places a very high premium on freedom of testation. You can basically bequeath as you like. There are limitations to that in certain laws. A good example of that is the Maintenance of Surviving Spouses Act. You cannot disinherit your surviving spouse completely if that surviving spouse is in need of maintenance after your death, and not wealthy enough to basically look after him- or herself. That’s one of the limitations to freedom of testation. But in principle you can bequeath as you like, and nobody has a right to inherit.
The executor of Mr Kalvyn de Jager’s deceased estate and the five granddaughters then appealed this judgment of the Cape High Court to the Supreme Court of Appeals. The Supreme Court of Appeals extraordinarily dismissed the appeal without giving reasons in what is known in law as an ex-tempore judgment. The court immediately gave judgment and did not supply written reasons.
That basically means that the Supreme Court of Appeals agreed with the Cape High Court’s reasoning and, as a result of this dismissal of the appeal to the Supreme Court Appeals, the appellants in the Supreme Court of Appeals then appealed to the Constitutional Court on the basis that there is a constitutional element to the case because it allegedly entailed discrimination on the basis of one of the prohibited grounds in Section 9 of the Constitution.
AMANDA VISSER: Can you then briefly explain the arguments that were put forward by the applicants and the respondents?
LOUIS VAN VUREN: In the Constitutional Court the parties all agreed that there was discrimination on a prohibited ground, but the respondents – and they are basically the great-grandsons of the original testators – and their male children argued that this discrimination is justifiable, and that the Cape High Court and the Supreme Court of Appeals were correct in stating that nobody has a right to inherit, and that this discrimination is justifiable because of that.
There are quite a number of cases previously in which freedom of testation was linked, through the “right to property” clause in Section 25 of the Constitution, to the founding value and the fundamental human right to human dignity in Section 1 of the Constitution. One of those cases was the BoE Trust case, where the Supreme Court of Appeals in a judgment said that to freely bequeath your assets in your estate in a will is one of the most profound expressions of your human dignity and recognition of your human dignity, which is one of the foundational values listed in Section 1 of the Constitution.
The argument was also based on the fact that nobody has a right to inherit, as I said. Therefore, there is no right to be treated equally by the testator.
The applicants, basically the executor and the five great-granddaughters of the original testator, argued that the provision is discriminatory purely on the basis of gender, and that freedom of testation was never absolute. It was always limited by the good morals of society, also known as the boni mores.
AMANDA VISSER: Can you explain what that is?
LOUIS VAN VUREN: The boni mores are just what society regards as good moral values. An example of a bequest that would be contrary to the boni mores would be if I bequeathed my house in Bantry Bay to my daughter on condition that she divorces that good-for-nothing husband of hers. That would clearly be against the good morals of society, the boni mores, because it places a condition on the heir to dissolve the marriage, which clearly cannot be in line with the morals of society.
AMANDA VISSER: It seems as if the Constitutional Court judges came to the same conclusion, but through different legal arguments. Could you please run us through the thinking and the final outcome of this case?
LOUIS VAN VUREN: There was a minority judgment by Judge Mhlantla; and Judges Khampepe, Madlanga and Theron agreed with that judgment. There was a majority judgment by Judge Jafta and Chief Justice Mogoeng, Judge Majiedt, and Acting Judges Mathopo and Victor agreed with that. So, it was a 5:4 split bench in the Constitutional Court. But both these judgments came to the same conclusion – that the exclusion of the granddaughters and great-granddaughters is unlawful and invalid, as it discriminates against the female descendants purely on the basis of their gender.
The minority judgment was of the view that the common law should be developed as provided for in Section 39 of the Constitution to limit freedom of testation to the extent that unfair discrimination should not be allowed to shelter behind freedom of testation. The majority judgment held that there is actually no need to develop the common law, because freedom of testation was always limited by the boni mores.
In a series of cases about testamentary trusts which created study bursaries, the courts have held over the years that the boni mores are encapsulated in the Bill of Rights. One of these cases was a judgment in 2005, I think, of the Cape High Court in the case Minister of Education v Syfrets. In that case it was a will that was drafted in 1922 in which a study bursary for further studies overseas was set up in a trust, and the beneficiaries would be bursars from the University of Cape Town who wished to do post-graduate studies overseas. But it was limited to male applicants of European descent who are not Jews. In this judgment in Minister of Education v Syfrets the court then held that the boni mores is now in encapsulated in the Bill of Rights in the Constitution. So, the majority of the court in this Constitutional Court case now, the recent one, held that the exclusion of the granddaughters and great-granddaughters purely on the basis of their gender is unfair discrimination, and therefore that provision is unlawful and invalid – that provision in the will.
There was a third judgment by Acting Judge Victor, but that did not take the legal issues and the legal arguments any further. It was just a further explanation by Acting Judge Victor as to why she agreed with the majority.
AMANDA VISSER: Louis, what does this mean for the grandchildren or the great-granddaughters, and for freedom of testation in South Africa in general?
LOUIS VAN VUREN: What it means for the granddaughters is that the farmland that their father, who died in 2015, held, as one of the fideicommissories under this provision in the will now goes to them, and not to their uncle and their uncle’s son, their father’s brother. If the will were followed, the farmland that their father held would have gone to his brother upon his death, and to his brother’s male descendants after that. So, the five great-granddaughters are now entitled to the farmland that the father held.
The meaning for freedom of testation in South Africa? We’ll have to wait and see. The majority judgment is very clear that there is no right to inherit, and the court was actually at pains to emphasise that there is no right to inherit, and that there is no duty on a testator to treat his family or his children equally in his will, or to bequeath anything to any of his children or some of his children.
What the court said, though, is that if you discriminate on one of the prohibited grounds the provision will be unlawful. Now in South Africa we have a golden rule when it comes to the interpretation of wills, and that is that you have to interpret the will using the wording of the will only.
In general, in our law, when it comes to the interpretation of any document, there is a rule against what is called extrinsic evidence – in other words, evidence coming from a source outside the document itself. Only when the wording of a will is unclear will you be allowed to use evidence from outside the document to prove what the testator intended with the wording in the will. So a clear bequest, for example, to my son while not mentioning my daughter at all, or mentioning that I disinherit my daughter without any indication that she is disinherited because she’s female, will probably not result in the court interfering with that will, because if there is nothing in the will indicating that the person is disinherited because of a reason which is a prohibited ground of discrimination in Section 9 of the Constitution, then there’s nothing in the document to go on to show that there was unfair discrimination.
What complicates the matter is that both in Section 9 of the Constitution and in the Promotion of Equality and Prevention of Unfair Discrimination Act, you only have to prove discrimination on one of the grounds. It is then presumed to be unfair, and the onus then shifts to the person saying that it is not unfair to prove that it is not unfair.
There was a Canadian case a couple of years ago, Spence v BMO Trust Company where a man of Caribbean origin, who lived in Canada, disinherited his one daughter and bequeathed everything to the other daughter and her children. The disinherited daughter then went to court and said, well, my father disinherited me because, being a black person, he was very aggrieved by the fact that I had a child by a white man. The Ontario High Court ruled that that the estate should be divided equally between the two daughters because the father clearly discriminated unfairly against his daughter purely on the basis of her relationship with a man from a different race.
The Ontario Appeal Court then overturned the decision and said, no, if we look at the will itself, if we stay within the four corners of the will and the wording of the will, there is nothing there that indicates any reason why the daughter was disinherited. So, any reason that the court reads into the will would amount to speculation, and that is simply not a valid reason to interfere with the bequests in the will.
Now in our Constitutional Court case King v De Jager the majority judgment, the court was at pains to emphasise that the testator disinherited the great-granddaughters that they did not even know purely because they are female. And on that basis the court then said, well, this is clearly discrimination based purely on something the great-granddaughters could do nothing about at all. And that is their gender. And because the original testator did not even know the great-granddaughters when writing a will – they probably hadn’t been born for almost 50 years at the time – the discrimination against them was purely on the basis of their gender, and there can be no other reason and therefore it is contrary to the provisions of Section 9 of the Constitution and is therefore unlawful and invalid.
AMANDA VISSER: Louis, given all you’ve said, what kind of advice do you have for people when drafting their wills?
LOUIS VAN VUREN: [Chuckling] Firstly, have your will drafted by a professional. It is very easy to miss things and tie yourself in knots if you do not have the know-how of how a will should be drafted and worded.
Then secondly, you have to think carefully who your heirs must be. And you have to think carefully about the bequests and make sure that the bequests and the other wording in the will is clear, it is concise, and there are no conflicts between different clauses in the will. If your will is clear and there is no room for any unclarity or any other interpretation as to what you decide, the chances are much less that a court will find a reason to interfere in your will.
And then I would say, stay away from discriminatory requests on the basis of a class or classes of heirs. Now a class of heirs is where you do not mention people by name in your will, you bequeath to “my grandchildren” – “I bequeath my 10 farms in the Karoo to my 10 grandchildren”. That is a bequest to a class of beneficiaries. If you then say, “I bequeath,” let’s say, “the residue of my estate to my grandsons” in full knowledge that you do have granddaughters, then I think you run the risk that a court might say, well, you are clearly discriminating purely on the basis of gender.
AMANDA VISSER: Thank you, Louis. Louis van Vuren is the CEO of the Fiduciary Institute of Southern Africa.
Brought to you by the Fiduciary Institute of Southern Africa (Fisa).