Topic 5: (2) Testate Succession, Freedom of Testation, and Attempted Revival of Male Primogeniture

Factual Trigger for Testate Customary Succession and Freedom of Testation Question

A deceased traditional patriarch leaves a written will designating his eldest son as sole heir under "traditional male primogeniture," disinheriting his daughters based on gender, while relying on an unwritten oral deathbed wish (tshwaelo) allocating the family home to the son.

The daughters challenge both the oral allotment and the discriminatory testamentary clause.

Step 1: Formulating the Situational Opening and Legal Issue

The legal issue here is whether a testator can utilize testamentary disposition or oral customary deathbed wishes to revive the unconstitutional rule of male primogeniture and disinherit female descendants.

Step 2: Identifying the Applicable Legal Route

As such, this matter requires the application of Customary Testate Succession, Freedom of Testation, and Constitutional Validity under the Wills Act 7 of 1953 and the Reform of Customary Law of Succession Act 11 of 2009 (RCLSA) because the eldest son claims sole inheritance under the written will and oral allotment (tshwaelo) invoking male primogeniture, while the daughters challenge the testamentary exclusion of female heirs under Sections 9 and 10 of the Constitution.

Step 3: Defining Customary Testate Succession and Freedom of Testation

1. Testate Succession: The legal framework controlling how property is distributed when a deceased person leaves instructions in a legally valid written will.

2. Freedom of Testation: The legal right of property owners to leave their assets to whoever they choose in a will, protected under Section 25(1) of the Constitution (property clause). However, this freedom is not unlimited—it must comply with statutes, public policy, and constitutional rights.

Step 4: Defining Customary Oral Allotments (Tshwaiso / Tshwaelo)

An oral allotment or deathbed wish (tshwaiso / go tshwaisa / tshwaelo) is a traditional living customary practice where a family head orally allocates specific property, livestock, or land to particular houses or family members during his lifetime or right before death in front of family elders, guided by the maxim lentswe la moswi ga le tlolwe ("the word of a deceased person is not broken").

Step 5: Defining Constitutional Public Policy and Unenforceable Conditions

In modern South African law, public policy is shaped by the values of the Constitution.

Therefore, any clause or condition in a will that causes unfair discrimination under Section 9(3) of the Constitution is contrary to public policy, illegal, completely invalid (void in initio), and legally unenforceable.

Step 6: Strategic Categorisation of Testate Choices

In testate customary disputes, the available legal paths are:

1. Upholding absolute freedom of testation under common law to follow the written will exactly.

2. Validating the oral customary allotment (tshwaelo) as a binding traditional land transfer.

3. Declaring the discriminatory clause void for violating public policy and distributing the estate under the statutory framework of the RCLSA read with the ISA.

Step 7: Statutory Non-Compliance of Oral Allotments under Section 2(1)(a) of the Wills Act

Under South African law, all valid wills and testamentary gifts must comply strictly with Section 2(1)(a) of the Wills Act 7 of 1953 (requiring writing, the testator's signature, and two witness signatures).

Unwritten oral deathbed wishes (tshwaelo) do not meet these mandatory statutory requirements and cannot legally transfer property title or alter inheritance.

Step 8: Public Policy Limits on Freedom of Testation (Re BOE Trust)

Although Section 25(1) of the Constitution protects property rights and freedom of testation, testamentary freedom is bounded by public policy (Re BOE Trust Ltd 2013 (2) SA 236 (SCA)). A testator cannot execute testamentary conditions that violate fundamental constitutional rights or public policy imperatives.

Step 9: Invalidation of Testamentary Male Primogeniture for Gender Discrimination

As established in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC), male primogeniture is unfair discrimination based on gender and sex under Section 9(3), and violates human dignity under Section 10 of the Constitution.

A written clause in a will commanding that property devolve under "male primogeniture" enforces unconstitutional discrimination and is contrary to public policy.

Step 10: Rautenbach's Analysis on the Attempted Revival of Male Primogeniture

As analyzed by legal scholar Christa Rautenbach, a testator cannot use freedom of testation to resurrect an unconstitutional rule that courts have struck down.

When a testator demands that an estate follow "male primogeniture," the clause relies on an invalid legal concept, making the clause void for violating public policy.

Step 11: Doctrine of Severability and Total Failure of the Will (Void Ab Initio)

When a discriminatory clause in a will is declared void in initio:

1. The court checks whether the invalid clause can be removed while keeping the rest of the will intact (severability).

2. If the entire plan of the will depends on male primogeniture, the invalid clause cannot be separated.

3. The whole will fails (fails in toto), causing the estate to fall into total intestacy.

Step 12: Statutory Devolution upon Intestacy under Section 2(1) RCLSA and Section 1(1)(b) ISA

When a will fails completely, Section 2(1) of the Reform of Customary Law of Succession Act 11 of 2009 (RCLSA) steps in:

1. The estate must be divided under the Intestate Succession Act 81 of 1987 (ISA).

2. Under Section 1(1)(b) ISA, the estate divides equally among all surviving children (per stirpes), regardless of gender.

Step 13: Application to Facts: Rejecting the Claim under Oral Deathbed Allotment

Applying these rules to the facts:

1. The eldest son's claim based on the oral deathbed wish (tshwaelo) must be rejected.

2. Under Section 2(1)(a) of the Wills Act 7 of 1953, unwritten oral statements are not valid testamentary instruments and cannot give the eldest son ownership of the homestead.

Step 14: Application to Facts: Striking Down the Testamentary Primogeniture Clause

The written clause requiring the estate to devolve strictly under "male primogeniture" to exclude female descendants is direct gender discrimination banned by Section 9(3) of the Constitution.

The testator cannot use freedom of testation to bring back an unconstitutional rule. The clause is contrary to public policy and void in initio.

Step 15: Application to Facts: Equal Shares for All Surviving Children

Because the whole will relies on the invalid male primogeniture clause, the clause cannot be severed, causing the will to fail completely and triggering total intestacy.

Under Section 2(1) RCLSA read with Section 1(1)(b) ISA, the estate is divided into equal child shares among all surviving daughters and sons.

Step 16: Final FIPAC Order and Legal Conclusion

Freedom of testation is limited by constitutional public policy and cannot be used to disinherit female heirs.

The oral allotment (tshwaelo) is legally void under Section 2(1)(a) of the Wills Act 7 of 1953, and the written clause is void for public policy invalidity.

Under Section 2(1) RCLSA read with Section 1(1)(b) ISA, the deceased's estate devolves equally among all surviving daughters and sons in equal child shares.