Limiting freedom of testation: evaluating ‘discriminatory’ stipulations in testamentary charitable trusts
South Africa has a history of discrimination and differentiation, which has negatively affected society. Since the Constitution of the Republic of South Africa came into being, the legal position regarding the limitation of freedom of testation and potentially discriminatory stipulations in testamentary charitable trusts have been a relevant topic for discussion. In determining the extent to which freedom of testation may be limited, two seemingly opposing constitutional rights have to be weighed up against another; namely section 9 of the Constitution (the Right to Equality) and section 25 of the Constitution (the Right to Property) protecting freedom of testation. Even though no right in the Bill of Rights is absolute, the concept of freedom of testation is deeply rooted in South African law and constitutes one of the founding principles of the Law of Succession. Therefore, courts have no easy task in deciding the extent to which freedom of testation may be limited. The specific issue that will be addressed is the position where a testator has bequeathed funds to a testamentary charitable trust in order to benefit a specific group of students, to the express exclusion of other groups. It is clear that stipulations in testamentary charitable trusts based on race are unfairly discriminatory and cannot be enforced. However, ,,discriminatory" provisions based on gender have previously been allowed. Should ,,discriminatory" provisions based on language be allowed in testamentary charitable trusts? This research discusses various common law and legislative limitations on freedom of testation. It furthers examines leading post-constitutional South African case law, such as Minister of Education v Syfrets Trust, Emma Smith Educational Fund v University of KwaZulu-Natal and BOE Trust Ltd. In order to gain an international perspective on the topic, Canadian case law is evaluated. Principles identified from case law are then applied to the factual setting dealing with ,,discriminatory" provisions based on language in testamentary charitable trusts. Every matter must be adjudicated in light of its own circumstances.
- Law