Freedom of testation


During the lectures in the framework of the course Global Law ‘Trust and Succession in a Comparative Perspective’, I got a first introduction on the principle of freedom of testation in South Africa and I found it a very interesting aspect of family law which I never had been able to study or discuss before. Therefore I wanted to seize the opportunity to work on a comparative analysis of cases on freedom of testation in the Belgian and South African legal systems in which human rights considerations have played a role in limiting or restricting the freedom of testation.

Quite a lot of academic essays and jurisprudence on freedom of testation and human rights can be found with regard to the South African legal system. There are several ground breaking and interesting cases about discrimination based on gender, religion or race and freedom of testation to be found in the case law. In this research paper I limited the jurisprudence to the post-constitutional period from 1994 onwards.

On the contrary it is much harder to find Belgian cases where human rights considerations and freedom of testation are opposed. There is of course the famous Belgian case Marckx where the European Court of Human Rights decided that there had been breaches of article 8 of the European Convention on Human Rights (private and family life) and article 14 (non-discrimination) and this case played an important role to induce the Belgian legislator to remove the distinction between illegitimate and legitimate children in the law of succession. There are legal provisions in Belgian law which could be considered as limits for the freedom of testation and around these provisions there are some cases but these limitations are of another kind than the human rights considerations in the South African cases.

In order to have the possibility to compare between case law, I supplemented this analyse with law cases from other jurisdictions like the English and Dutch legal systems. In these systems I could indeed find some cases where freedom of testation has been limited or restricted due to human rights considerations. Nevertheless this analysis is only based on a rather small number of cases and therefore I’m prudent to draw hard conclusions of limiting freedom of testation based on human rights.

1. Freedom of attestation

For this research paper, I will use following definition of freedom of testation: The freedom of individuals to dispose of their property upon death as they see fit. Freedom of testation underlies the allocation of a person’s property upon death, giving the owner the right to designate beneficiaries.

2. Freedom of testation in South African.

2.1 Freedom of testation in South African legal system.

The principle of freedom of testation is being considered as one of the cornerstones of the law of succession in South Africa is. In section 25(1) of the South African Constitution there is no clear mention of the law of succession: No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property. This provision guarantees the right to private property and section 25 should be read to include the right to dispose of an asset. The institution of succession is therefore guaranteed. It allows individuals to dispose of their property to whomever they want to. This means that testators are free to dispose of their assets in a will in any matter they deem necessary. A will is the final expression of what the testator wishes to do with his testate and the expressed wishes of the testator should be executed.

Even as freedom of testation is a strong principle, this freedom of testation can be limited by common law or statutory law and can be tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if in conflict with the law or is deemed to be unconstitutional.

A testator’s freedom of testation is not absolute and may be limited under the following scenarios:

Common Law limitations

Some of the limitations to the freedom of testation are placed on the testator in accordance with the common law, for example a provision in a will shall not be executed if:

– it is generally unlawful,

– against public policy,

– impracticably vague, or

– impossible.

A testator also has the common law duty to support his minor and financially dependent children.

Legislative limitations

Some of the restrictions on freedom of testation in South African law:

• The Pension Funds of 1956, in terms of which certain benefits payable by a pension fund are excluded from the estate of a deceased member of such a fund.

• The Immovable Property (Removal or Modification of Restrictions) of 1965 that empowers the court to alter or amend restrictions placed by a will on immovable property.

• The Trust Property Control of 1988 which authorises the court to amend the provisions of a trust or even terminate the trust.

• The Maintenance of Surviving Spouses of 1990 which determines that a surviving spouse may under certain circumstances claim an advance for maintenance from the estate of a deceased spouse.

• The Matrimonial Property of 1984.

Constitutional protection

There is also the impact of constitutional rights and principles on the freedom of testation. As already mentioned above, the South African Constitution has no express guarantee of freedom of testation. The constitutional guarantee of the right of property includes the right to dispose freely of property and as such disposition can occur also by testamentary bequest. Freedom of testation is thus implicitly guaranteed under the South African Constitution.

This constitutional protection has to be counterbalanced by courts against other rights included in the South African Constitution. During the lectures, the balance between Freedom of Testation and the right of equality (section 9 Constitution of South Africa) was discussed but other constitutional protected rights can also be invoked to contest a bequest of a will:

– The right to human dignity (section 10);

– The right of privacy (section 14);

– The right to freedom of religion, belief and opinion (section 15);

– The right of freedom of speech (section 16);

– The right of freedom of association (section 18);

– Political rights (section 19);

– The right of freedom of movement and residence (section 21);

– The right of freedom of trade, occupation and profession (section 22);

– The right to language and culture (section 30 and 31).

2.2. Freedom of attestation and limits or restrictions imposed by human rights – South African cases.

The case Minister of Education and Another v Syfrets Trust Ltd NO and Another is about a charitable trust which was established in terms of the will of the testator who died in 1921. The trust awards bursaries to ‘deserving students with limited or no means’ of the University of Cape Town. However, in terms of the will, eligibility for the bursaries was restricted to persons who were of European descent, not Jewish, and not female. The validity of these provisions was challenged in the application. The Court considered the limitation of bursaries to candidates of “European descent” and found that it constituted indirect discrimination based on race and colour. The Court held that where a provision in the trust infringes a constitutionally protected right to equality and freedom the offending provision may be deleted or varied by the Court. Further, the Court held that, ‘The principle that the courts will refuse to give effect to a testator\’s directions which are contrary to public policy is a well -recognized common law ground limiting the principle of freedom of testation’. The Court deleted the offending words on the basis of common law. The Court decided in this case that not all clauses in the will that differentiate between people are invalid, only these that have as effect a unfair discrimination on grounds of gender, race or religion will fall foul of the non – discrimination rules.

The case Curators Emma Smith Educational Fund v University of Kwa-Zulu Natal and Others deals with a will in which trust income was to be applied towards the higher education of European girls born of British South African parents, the Supreme Court of Appeal confirmed the deletion of the terms “European” and “British” from the Trust instrument. The Supreme Court of Appeal dismissed an appeal against a judgment that deleted a racially restrictive clause limiting the beneficiaries of the Fund to white women. The university applied to the High Court to have the racially restrictive clause removed because the university contended that it is contrary to public policy and is in conflict with public interest. The curators of the fund appealed to the Supreme Court of Appeal but the Court held that there was a constitutional imperative to remove racially restrictive clauses in conflict with public policy. The Supreme Court of Appeal noted that since the Bill of Rights applies to all law including the law relating to charitable trusts there can be no question that in the public sphere a racially discriminatory testamentary disposition cannot pass constitutional muster.

The Supreme Court of Appeal held also that the constitutional imperative to remove racially restrictive clauses that conflict with public policy from the conditions of an educational trust intended to benefit prospective students in need, administered by a publicly funded educational institution such as a university takes precedence over freedom of testation particularly given the fundamental values of the South African Constitution.

In Board of Executors v Benjamin Godlieb Heydenrych Testamentary Trust and Others , the Western Cape High Court held that the provision of scholarships by the testamentary trust to European boys who are members of the white population group, amounted to unfair discrimination on grounds of gender and race and in conflict with section 9(4) of the Constitution and public interest. The Court found that because the wills were executed before the introduction of the Constitution, the testators did not foresee that the scholarships would be rendered unconstitutional and unlawful. Furthermore, they did not foresee that the charitable purpose of the trust would be hampered by the discriminatory conditions imposed. The Court ordered that the offending provisions be struck out.

In BoE Trust Limited NO & others the case deal with a trust set up in order to provide small bursaries to assist white South African students. In case it should become impossible to carry out the terms of the trust, the testatrix directed that the income generated by the trust should be given to charitable organisations. All four invited universities refused to select students because of the racial selection criterion attached to the bursary.

The judge reaffirmed in this case that freedom of testation is considered one of the founding principles of the South African law of testate succession. But freedom of testation, and the rights underlying it, are not absolute by referring to another case Rhode versus Stubbs where the balance to be struck between freedom of testation and its limitations was formulated as follows: Now the golden rule for the interpretation of testaments is to ascertain the wishes of the testator from the language used. And when these wishes are ascertained, the court is bound to give effect to them, unless we are prevented by some rule of law from doing so’.

Therefore the judge refused to order to delete the word ‘white’ and he looked to fulfil another important principle, namely that South African courts are obliged to give effect to the clear intention of a testator as it appears from the testator’s will. Therefore the Court should give effect to the wishes of the testatrix and enforce the bequest to the charitable organisations. This case illustrates clearly that a court must give due recognition to freedom of testation and cannot alter at free will the provision of a will.

2.3. Conclusion

In the South African case law, there are important judgements where freedom of testation has been limited or restricted by human rights as formulated in common law, statutory law or the South African Constitution. There has been a great impact of the constitutional rights and principles on the freedom of testation but this doesn’t mean that courts can rewrite lightly conditions laid down a will. The limitations are to be found in legislation or in common law principles. The limitations can only be to the extent that the limitation is reasonable and justified in a democratic society.

3. Freedom of attestation in Belgian law.

3.1 Freedom of testation in Belgian law.

As in the South African legal system, the Belgian law of succession does not include any specific sections that deals with freedom of testation. But even so, the principle is considered as one of the foundations of the law of succession.

In Book III of the Civil Code (Burgerlijk Wetboek – BW) the legislator lists the way goods can be passed from one subject of law on the other: “Op welke wijzen eigendom verkregen wordt”. Article 711 BW gives the different ways of acquiring property: “Eigendom van goederen wordt verkregen en gaat over door erfopvolging, door schenking onder de levenden of bij testament, uit kracht van verbintenissen.”

Succession takes place by implementing the will of the testator or where there is no will in accordance with the law. The Belgian law of succession assumes the testamentary freedom: anyone can within certain legal limits, decide within his testament the destination of his property for the time after his death. The right to make use of his goods by way of testament is therefore linked to the right to property. This is the translation of the philosophy that the right of property would be completely impossible if one was not entitled to have full discretion at the time of his death of his goods.

The freedom of testation can be considered in the law of succession as the counterpart of the freedom of contract and stems from the right of property. An owner can freely dispose of his goods and therefore could in principle also decide on the fate of those goods after his death. But in case the deceased has close relatives, there are limits: a part of his property, the reserve (or estate reserve, reserved share) goes to the close relatives. The testator can therefore only dispose on the rest (the available part). The children and the widow have a right to a minimum share in the testator\’s estate, which serves to restrict the testator\’s freedom of disposition and freedom to use and enjoy his property. This means also that the testator can limit the inheritance of the last surviving just like the part of all other heirs to the reserved portion.

The Belgian reserve institute is very protective for the heirs. Till recently Belgian law was also very generous with regard to the beneficiaries who can claim a part of the reserve.

Furthermore article 900 BW limits the will of the testator if he or she wants to add impossible conditions to his will as article 900 BW stipulates: “In iedere beschikking onder de levenden of bij testament worden de voorwaarden die onmogelijk zijn, of die met de wetten of met de goede zeden strijden, voor niet geschreven gehouden.” Impossible conditions or those which contravene with law or moralities which e.g. limit the choice of residence or prohibit a marriage are not allowed. Article 900 BW aims at punishing the testator, not the beneficiary because the beneficiary has in most case no role in defining the conditions of a will.

3.2. Freedom of attestation and limits or restrictions imposed by human rights – Belgian cases.

Freedom of testation and human rights.

In my research I could not find a case where explicitly the freedom of testation within the framework of the Belgian law of succession has been contested with regard to possible infringement of human rights. There are a lot of judgements where courts were called to decide on litigation concerning the determination and repartition of the reserved share.

There is of course the famous case Marckx in 1974 where the European Court of Human Rights ruled that the Belgian system infringed the right to private and family life by reducing inheritance rights for illegitimate children. I did not elaborate this case further in this paper as it is only indirectly relevant for the study of cases on freedom of testation.

Unauthorized conditions.

I found references to some old cases going back to the years 1902 to 1912 with judgements based on article 900 BW where conditions considered as being contrary to the law as they affect public order or conditions contrary to imperative law must be considered as not be written.

There are also some references to judgments where the testator imposed as condition to the beneficiary the obligation to choose a certain profession, career or function or to not choose a certain career. This condition is contrary to article 23, 1 of the Belgian Constitution which states that every Belgian has the right to work and has a free choice of professional labour. This constitutional article is of public order and the condition must be considered as unwritten.

There is also a case where the Court of appeal of Brussels had to rule on a legacy in which the testator expressly stipulated that the bequest would be invalid if the beneficiary should marry without the consent of his parents. The Court considered this clause as unauthorized and decided that condition should be considered as unwritten while the bequest remain existing. No motivation was given in this judgement.

I could not get the text of these judgements so I have not been able to analyse them and to see if freedom of testation was restricted in these cases based on human rights.

3.1. Conclusion.

Belgian succession law is very protective for the heirs and is considered to be generous towards the beneficiaries and thus limiting the freedom of testation. I could not find cases where the courts have limited or restricted freedom of testation based on infringements of human rights.

4. Freedom of testation in other legal systems.

4.1 Freedom of testation in England.

English law provides that a testator is free to choose to whom they leave their estate after death and the freedom of testation of the owner to dispose of his property is in principle completely. But this testamentary freedom in England is also subject to the restrictions imposed by several statutes as the Inheritance Provision for Family and Dependants Act (1938) and later the Inheritance Provision for Family and Dependants Act of 1975. This legislation allow a certain number of possible claimants to apply to court for financial provision from a deceased person\’s estate. So in reality, freedom of testation in England is not as complete as on first sight even as English law has no reserved portion (succession reserve).

The evolution of case law on freedom of testation with regard to the 1975 Act can be highlighted by following cases without of course offering here a full overview of all case law.

In the case of Boughton v Knight (1873), the judge Sir J Hannen stated that testamentary freedom means that a testator ‘may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his Will, however much we may condemn the course he has pursued’. This is of course a very extreme position.

In the case Gill Woodall & ors (Rev 1) (2011) , the judge expanded upon this point and noted that ‘the law in this country permits people to leave their assets as they see fit, and experience of human nature generally, and of wills in particular, demonstrates that people’s wishes can be unexpected, inexplicable, unfair and even improper’.

In paragraph 26, the judge clearly states that: ‘a court should be very slow to find that a will does not represent the genuine wishes of the testatrix simply because its terms are surprising, inconsistent with what she said during her lifetime, unfair, or even vindictive or perverse’.

In the case of Barrass v Harding (2011), the President of the Family Division of the High Court, Baroness Elizabeth Butler-Sloss mentioned: “We still live in a world where, to some extent at least, a man or woman is entitled to dispose of his or her assets by Will as he or she chooses”.

In a recent case of 2014, Ilott v Mitson & Others , the Court decided to award the estranged daughter of the testatrix a substantial amount of money to purchase a house, despite the very clear provision in the will that she did not want her daughter to receive a part of the estate because the mother wanted all assets of the estate to go to some charities. This case generated some controversy if you look at the number of articles published on this case. The BBC website describes it as “a landmark Court of Appeal ruling which has dealt a major blow to the rights of people to choose who they want to leave money to when they die”. The Daily Telegraph headline on this case states “Your will can be ignored say judges”.

The judgement is considered to erode furthermore the testamentary freedom as judges seemed to have used the 1975 Act as a method limit the testamentary freedom of the testator. Some authors also mentions that judges are now more willing to interfere in the will as they used the possibilities to adapt the testament in favour of the plaintiffs.

The freedom of testation in English case law has undergone a transition from extreme protective of the will of the testator to a more moderate conception as consequence of several statutes and especially the Inheritance Provision for Family and Dependants Act of 1975.

4.2 Freedom of testation in the Netherlands

Freedom of testation is also regarded in the Dutch legal system as an important principle but the legislator has imposed restrictions via constitutional, national legislative and judicial rules. Dutch succession law has been changed in 2003 to take in account the changes in society and the role of families by readjusting the positions of partners, children and forced heirs.

Articles 44 and 45 of book 4 of the Dutch Code Civil stipulate when a will or testamentary bequest is void:

Artikel 44

1. Een uiterste wilsbeschikking waarvan de inhoud in strijd is met de goede zeden of de openbare orde, is nietig.

2. Eveneens is een uiterste wilsbeschikking nietig, wanneer voor deze een in de uiterste wil vermelde beweegreden die in strijd is met de goede zeden of de openbare orde, beslissend is geweest.

Artikel 45

1. Een voorwaarde of een last die onmogelijk te vervullen is, of die in strijd is met de goede zeden, de openbare orde of een dwingende wetsbepaling, wordt voor niet geschreven gehouden. De beschikking waaraan de voorwaarde of de last is toegevoegd, is nietig, indien deze de beslissende beweegreden tot die beschikking is geweest.

2. Een voorwaarde of last die de strekking heeft de bevoegdheid tot vervreemding of bezwaring van goederen uit te sluiten, wordt voor niet geschreven gehouden.

In the case LJN BU6438 (2011) , the court the testatrix stipulated in het will that her son should be the sole beneficiary and that the other children should accept the exclusion of their legitimate portions. The testatrix referred explicitly to the fact her son needed some more ‘elbowroom’ in life and that her other children had only negligible interests in her estate. The claimants wanted to have the will declare void because of being in contravention with public order and good morals. The Court of Appeal did not follow this request and stated that article 44 can be invoked only in exceptional circumstances where testamentary direction effect against the fundamental notions of unwritten law. As testamentary infringement on the legitimate portion has never been regarded as contravening the public order or good morals in the Netherlands, the will’s contestants could not invoke successfully article 44 before the Court‘s-Hertogenbosch.

In the case ‘Oordeelnummer 1997-22’ the Dutch College voor de Rechten van de Mens had to answer the question of a plaintiff to judge if the defendant, an women association made a distinction as meant in the ‘Algemene wet gelijke behandeling’ (AWGB).

The ‘Wet van 2 maart 1994, houdende algemene regels ter bescherming tegen discriminatie op grond van godsdienst, levensovertuiging, politieke gezindheid, ras, geslacht, nationaliteit, hetero- of homoseksuele gerichtheid of burgerlijke staat’ or Algemene wet gelijke behandeling (AWGB) is a Dutch statute which came into force on 1 September 1994. The AWGB is a further elaboration of article 1 of the Dutch Constitution which reads ‘allen die zich in Nederland bevinden, worden in gelijke gevallen gelijk behandeld. Discriminatie wegens godsdienst, levensovertuiging, politieke gezindheid, ras, geslacht of op welke grond dan ook, is niet toegestaan’.

The AWGB prohibits that improper distinctions are made on grounds of religion, conviction, political opinion, race, gender, nationality, hetero-or homosexual orientation or marital status. The Act requires equal treatment when it comes to offering work, housing, goods and services like buying and selling, health and welfare services, education, social services and recreation. The law does leave room for positive action, a distinction can be made for example based on nationality or gender if the intention is to reduce or eliminate inequality between groups.

In this case, the association offers scholarships to its members who want to resume their studies. The money for these scholarships comes from a legacy, the Hanneke van Holk-fund. The testatrix stated in her will, inter alia, the condition that the award of the scholarships can only happen if the applicant is married or has been married. The plaintiff considers that the association discriminate her on the basis of marital status.

The defendant is member of the association, is single and has never been married. Due to the conditions of the will, the defendant will never be able to apply for a scholarship. She is excluded in advance by this condition and this condition is therefore to be considered as a direct discrimination as defined in the AWGB.

For the defendant, the contested condition is not covered by the AWGB because it deals with a relationship between the association and its members. The AWGB indeed doesn’t apply to associations as far as membership of an association is concerned but if an association however offers goods or services, the AWGB applies.

The defendant also stated that at the time of acceptance of the inheritance in 1990, the AWGB did not apply and disputed that there has been direct discrimination because the association represents the interests of all its members and doesn’t want to make any distinction between its members.

The defendant refers furthermore to article 7, paragraph 3, AWGB, which stipulates that the prohibition to make a direct discrimination is here not applicable because of the private sphere of the case because of the freedom of testation of the testator.

The association also claimed that if the legacy wasn’t accepted, a large amount would not have been available for its members.

The disputed condition for the award of scholarships should be seen as a preference treatment because of the disadvantaged position of married women and for this reason, the defendant refers to the statutory exception to the prohibition of discrimination.

The defendant doubted that based on article 4:936 of the Dutch Burgerlijk Wetboek (BW) or article 9 AWGB ‘Bedingen in strijd met deze wet zijn nietig’ the condition of the testament could be changed. In the judgment in the case Abraham Bredius , the Hoge Raad stipulates clearly that with regard to any modification or lifting of testamentary conditions, the judge has to respect as far as possible, the intention of the testator. The Hoge Raad changed the wording ‘Jongelingen uit de burgerklasse’ in ‘jonge mensen’ so to not oblige the claimants to make a distinction based on gender. The case Bredius is one of the few judgments where the Hoge Raad was asked to judge on changes requested to provisions in a testament.

The Commission judged that the association is an organisation which falls article 7 AGWB as the attribution of scholarships is considered as providing services.

The call of the defendant on the freedom of testator failed according the Commission because this freedom is also subject to boni mores and the boundaries of the law. The association has by accepting the fund, to take responsibility which the association cannot dismiss.

Regarding the question if the condition of being married or have been married is a form of direct discrimination, the Commission recognized that the refusal to grant a scholarship from the fund is solely based on the matrimonial status of the plaintiff. Article 7, paragraph 1, c AWGB forbids discrimination based on the patrimonial status and due to the fact the condition explicitly refer to this distinction, there is direct discrimination. Only statutory exemptions are possible. The preference treatment which was sought by the association is not a statutory exemption as defined in Article 2, paragraph 3 AWGB.

The condition concerning the matrimonial status for applying a scholarship lead to a forbidden discrimination and therefore the condition in the will must be considered as unwritten as stipulated in article 9 AGWB.

This judgment is a clear example of a case where human rights considerations have played a role in limiting or restricting the testamentary freedom of the legislator in the Dutch legal system.


Freedom of testation is a principle which is highly regarded in the four legal systems, being them common law, civil law or mixed systems, I looked at very briefly. Freedom of testation is an important part of the law of succession and is a form of the recognition of private ownership. But in all these legal systems, testamentary freedom is no longer absolute or untouchable.

As stated before, freedom of testation is considered to be one of the founding principles of the law of succession in South Africa. Testators are given freedom to direct how their estate should transfer and how they want to dispose of their assets as they consider appropriate. Therefore, the expressed wishes of the testator should be executed. Prior to 1994, freedom of testation could be limited only by common law or statutory law but now freedom of testation can also be tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is against good morals, impossible or too vague, in conflict with the law or is deemed to be unconstitutional.

In Belgium, few case law can be found which deals with limiting or restricting freedom of testation because of a conflict with human rights. Belgian succession law is very protective for the heirs and leaves the testator only freedom of testation within the limits of the strong reserve. There are some old cases with judgements based on article 900 BW where conditions considered as being contrary to the law as they affect public order or conditions contrary to imperative law must be considered as void.

In the Netherlands, case law on freedom of testation seem also to be rare. In the case Bredius, the Hoge Raad has showed its willingness to alter a provision in a will so to lift a discriminatory provision. This is also the position of the Commission of the Dutch College voor de Rechten van de Mens where it stated that a forbidden discrimination as result of a condition in the will must be considered as unwritten. The judgment is a clear example where human rights considerations have played a role in limiting or restricting the testamentary freedom of the legislator in the Dutch legal system.

Based on the cases discussed in this paper, freedom of testation in England was very strong protected but has been restricted by statutory law as the Inheritance (Provision for Family and Dependants) Act 1975. The principle of testamentary freedom is no longer as solid as a rock and can be limited if there is a conflict with other rights. The recent case Ilot vs Mitson indicates that people will have to explain the reasons why they want to dispose of their assets in the way they seem fit and it will also be easier for disinherited adult children to challenge the will and get a proportion of the estate. The judgment attracted criticism because it goes against the principle of testamentary freedom in England.

It is far beyond the scope of this research paper to discuss all aspects and evolution of testamentary dispositions in abovementioned legal systems. The mixed legal system of South Africa with its influences of common law could be described as a legal system that permits the transfer of property on death nearly unlimited while the Belgian legal system has provisions protecting certain relatives of the deceased.

Some authors refer to the fact that in the common law countries, there is a trend towards increasing restriction of freedom of testation. This is done on the one hand by introducing the so-called family provisions which allow a claim against the estate and on the other hand by courts which use these provisions in a flexible way. In common law countries there is an evolution to more protection by the authorities opposed to an extension of the freedom in the civil law countries. As example, in the governmental agreement of October 2014 of the actual Belgian government, the intention of reforming the Belgian law of succession is explicitly stated: \’the matrimonial property and inheritance law will be reformed, taking into account social developments and new forms of cohabitation. There will be more freedom of choice to determine to whom belongs his or her rightful heritage; in particular a balance will be struck between respect for family solidarity and the freedom of the individual disposition. The possibility of increasing the available portion of the estate will be investigated.’


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South Africa

The Constitution of the Republic of South Africa, 1996


Burgerlijk Wetboek

The Netherlands

Burgerlijk Wetboek


Inheritance (Provision for Family and Dependants) Act 1975



 European Court of Human Rights Case of MARCKX v. BELGIUM (Application no. 6833/74) 13 June 1979

South Africa

 Cape Town High Court (SA) 24 March 2006, Minister of Education and Another v Syfrets Trust Ltd NO and Another (2544/04) [2006] ZAWCHC 65; 2006 (4) SA 205 (C).

 Supreme Court of Appeal of South Africa (SA) 01 October 2010, Curators Ad Litem to Certain Potential Beneficiaries of Emma Smith Educational Fund v The University of KwaZulu-Natal and Others (510/09) [2010] ZASCA 136; 2010 (6) SA 518 (SCA); 2011 (1) BCLR 40 (SCA) ; [2011] 2 All SA 1 (SCA).

 Western Cape High Court (SA) 6 December 2011, Board of Executors v Benjamin Godlieb Heydenrych Testamentary Trust and Others 2012 (4) SA 103 (WCC).

 Supreme Court of Appeal of South Africa (SA) 28 September 2012, BoE Trust Ltd NO and Another (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006) (846/11) [2012] ZASCA 147; 2013 (3) SA 236 (SCA).

 Supreme Court of Appeal of South Africa (SA) 29 March 2005, Rhode v Stubbs 2005 (5) SA 104 (SCA).


 Boughton v Knight (1873) LR 3 P & D 64.

 Gill v Woodall & Ors (Rev 1) [2010] EWCA Civ 1430 (14 December 2010).

 Court of Appeal (Civil Division) (UK) 27 July 2015, Ilott v Mitson & Others EWCA Civ 797 (Fam).

 Barrass v Harding [2001] 1 FLR 138, [2001] 1 FCR 297.

The Netherlands

 Hoge Raad (NL) 24 februari 1989, ECLI NJ 1990/250, nr. 7387.

 Gerechtshof ’s-Hertogenbosch (NL) 29 November 2011, LJN BU 6438.

 Commissie College voor de Rechten van de Mens (NL) 11 maart 1997, Oordeelnummer 1997-22.


Federaal Regeerakkoord van 09 oktober 2014, Paragraaf 6.3 Burgerlijk recht en handelsrecht, 87,

The Barrister, “Where now for the testamentary freedom?”,


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