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Is our Freedom to Testation being challenged

A recent Court Judgement has revealed that our Freedom to Testation may be in question. In other words, the terms and conditions of your Last Will & Testament may be challenged if the terms & conditions of your Will can be proven to be unconstitutional.

A quick preamble of the case at hand has revealed that a Testator had bequeathed his estate to his trustees for administration. His trustees were charged with the duties of allowing scholarships/bursaries to applicants who were not of Jewish origin, were not indigenous, and who were male and of European decent. It was found that the Testamentary Trust is clearly disadvantaging certain classes of applicants.

As you are no doubt aware, the terms and conditions of a Will can only be amended by an order of court. This is a costly exercise, being a High Court (or rather a civil) action. One should be certain of one's facts, should one decide to contest the terms & conditions of a Will.

Turning to the case at hand, The Minister of Education challenged the terms & conditions of the Trust (ultimately the Will of the deceased) and the judgement was in favour of the applicant. I.e. the terms and conditions of the Will are unconstitutional and benefit only a certain class of beneficiary. The bursaries/scholarships have since been opened to all applicants. In other words, our final wishes may be challenged.

It is now very clear that when you plan your Will, you take cognisance of the fact that you plan your Will correctly so that your Executor and/or beneficiaries are not left with any possible lawsuits or legal actions to contend with. Any legal proceeding, whether High Court or Magistate's Court, is costly and should be avoided as far as possible.

Therefore, when next you deem it fit to exclude a child or certain class of beneficiary, be made aware that your Will may be challenged in terms of our Constitution - hence our question, WHEN LAST HAVE YOU UPDATED YOUR WILL?

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