Ruling from the grave

When drafting a will, one of the elements that testators make use of is a fideicommissum.

A fideicommissum is a gift of property through a Will to be held on behalf of another who cannot receive it then– in essence, it is something committed to someone's trust. A testator gives property to another one of his heirs, on the condition that the heir will transfer it to a specific descendant at a later stage.

A typical example of a fideicommissum would be; a parent who bequeaths his Farm to his only son on condition that that son must pass the farm to the grandson, and this later grandson should also pass the property to the next descendant in line and so forth..People make use of a fideicommissum for many reasons. One reason could be creating generational wealth and ensuring that your future descendants will be taken care of. 

Another economic reason would be: Once a said testator has successfully acquired riches, there may be one of those dependants who could squander the hard-earned wealth to the detriment of the other descendants and for this reason, a testator may want to subject certain property to a fideicommissum.

Some testators bequeath certain property to a specific gender of descendants whilst it is subjected to a fideicommissum. Fortunately our Constitution honors and protects the freedom of testation– wishes of the dead. As a testator, you can rule from the grave. You may bequeath your property/assets however you want, but it is subject to limitations and the constitutional rights of other people.

The case of James King N.O. and Others v Cornelius Albertus De Jager and Others. went up to the Constitutional court and the facts of the case are as follows: around 1902, a couple executed a joint will and subsequently bequeathed several properties comprising of farms to their children subject to a fideicommissum. The  fideicommissum had a clause that stated that the fideicommissary limited the first and second beneficiary (second and third generations) substitutions to only the descendants of the male gender. 

One of the initial fiduciaries died without any male descendants, but only daughters, this means that the daughters could not inherit because the fideicommissum expressly excluded female descendants from inheriting. Aggrieved by the exclusion, the daughters along with the executor went to court on the basis that the fideicommissum “unfairly discriminates” against them.

The High Court was called upon to determine two main issues: first, to reconcile a potential conflict between the right to freedom of testation and the right to equality; and, second, the correct interpretation of the words “sons” and “male descendants”. The High Court held that the discrimination was not unreasonable and offensive to the extent that it could be rendered contrary to public policy. 

The Court distinguished between public and private testamentary instruments. Since this matter dealt with a private Will, the High Court believed it did not have a public character or indefinite life, and its provisions did not discriminate against one or more sectors of society but, rather, against certain descendants.  

Thus, the High Court found the fideicommissum constitutional. The Supreme Court of Appeal also endorsed the reasoning of the High Court. The High Court and Supreme Court echoes this: for the sake of freedom of testation, a testator can discriminate in a private Will if the Will is not a public instrument because then, it will be against the general public policy.