Articles written by the University of the Western Cape’s Private Law Professor, Francois du Toit, feature prominently in a landmark Constitutional Court judgment, handed down last week, dealing with alleged discrimination in a private testamentary bequest.
In the case of King NO v De Jager, the co-testators left certain property to their grandsons and thereafter to the grandsons’ male descendants only. One of the testators’ male descendants left only daughters, and these daughters challenged their exclusion from the inheritance on the grounds that it amounted to unfair gender-based discrimination.
Reference is made throughout the judgment, the first in which the Constitutional Court had to decide whether disinheritance in a will can be challenged on the ground that it infringes the Constitutional right to equality, to articles written by Prof Du Toit on the subject.
“The Constitutional Court acknowledged, in conformance with my scholarship on point, the importance of testamentary freedom, but it also recognised the restrictions that public policy and the Constitution place on this freedom. The court ultimately held that the unfair discrimination occasioned by the exclusion of the testators’ female descendants cannot pass constitutional muster. This is the first time that South Africa's highest court has made such significant inroads into testators’ freedom to disinherit family members in a private testamentary bequest,” said Prof Du Toit.Read judgment here: http://www.saflii.org/za/cases/ZACC/2021/4.html