Question:

“Our father recently passed away and amongst his documents we found his private Will, whereby he stated that all his children will not inherit from his estate if they marry outside their race. I am currently engaged to a man who is of a different race. Does that mean I will not inherit and is this will legally valid?”

DBM’s Gerrit Coetzee answers:

No, the Will is not legally valid, and your father is not allowed to have a clause in his private Will which discriminates against race or gender. Previously, South African courts did not intervene in the clauses of private Wills.

However, Freedom of testation is no longer absolute and clauses in a private Will which are unfair and discriminate against beneficiaries based on immutable characteristics such as race or gender are unconstitutional and legally unenforceable.

This was established in the case of King N.O. and Others v De Jager and Others (2021).

In this case, the Constitutional Court ruled that a clause in a private Will that unfairly discriminates on the grounds of gender is unlawful and unenforceable.

The court found that freedom of testation cannot be used to perpetuate unfair discrimination, as private Wills must still align with public policy and constitutional values.

You can challenge the Will in the High Court, and the court will find that the clause is indeed discriminatory.

The court will not invalidate the entire Will, but will strike out the specific discriminatory clause and the affected heirs will immediately inherit.

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