As is trite in South African law, a testator has freedom of testation and can bequeath their
estate at will (excuse the pun). However, very seldomly is attention given to the imaginary
asterisk at the end of the statement in which the limitations, terms and conditions apply.
Such attention was paid to the generally overlooked ‘terms and conditions’ subtext in the
recent Western Cape High Court judgment of Gerntholtz and Others v Pieterse N.O. and
Others. In this matter, a bequest made in terms of the Last Will and Testament read together
with a Codicil, was set aside for vagueness as well as for being against public policy.
The now-deceased Testator bequeathed his estate to an entity known as the Boerelegioen
with the added proviso that “a portion of the inheritance be utilised for the Pathfinder
Bushcraft and Survival Training Camps or any other training by the Boerelegioen”.
In its judgment, and even after looking at extrinsic evidence, the Court raised two
fundamental issues with this bequest. First, the bequest could be for one of three entities,
each carrying the ‘Boerelegioen’ name. Second, neither the monetary amount nor the
percentage of the bequest to be utilised for training or training camps was clear or
ascertainable.
The second material defect raised and discussed was the issue of the bequest going against
public policy. In citing and quoting numerous seminal cases at length, the Court stated
emphatically that “given that the common law provides for a declaration of unenforceability
where a provision in a will is contrary to public policy, there is no need for this Court to
develop the common law”. In other words, and specifically to this matter, the law is
sufficiently clear that where something is grossly against public policy (in this instance, for
financing training for entities committed to race-based ethnic cleansing), it must fail and stay
unenforceable.
As is clear, while a testator does have freedom of testation, such freedom is not without
limits and nor should it be. However, perhaps it is time for the expression to read ‘freedom of
testation* (T’s and C’s apply)’.
