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)’.

Written by Jenny Fung, Daniel Hirschowitz, Fluxmans Attorneys