Public equality and private sexism?

Is a person making a will entitled to be sexist?

That question recently came before the Cape High Court, and the outcome may be surprising.

Well over a century ago, a wealthy couple executed a will. In it, they distributed their numerous farms and other properties between their four sons and two daughters, subject to a fideicommissum. A fideicommissum is a provision that an heir must transfer an inherited property to a specific other person on their own death. On each son or daughter’s death, shares in the properties would go to that son or daughter’s own sons, and thereafter those grandsons’ sons. If there were no sons, then brothers or nephews might inherit.

One of the couple’s children, Cornelius, inherited certain properties from his parents in terms of the fideicommissum. He died in 1957, leaving behind three sons and six daughters. The properties he had inherited were passed on to his three sons (the grandsons) in equal shares, to the exclusion of his six daughters.

When the first grandson died, he left no children, and his shares in the properties went to his brothers in terms of the will. When the second grandson died, his shares went to his sons (the great grandsons). The third grandson had five daughters and no sons. He and the great grandsons, his nephews, treated the properties on the basis that they would ultimately belong to the great grandsons in terms of the will. A year before his death, however, he was advised that the fideicommissum may be unconstitutional, and he made a will leaving his shares in the properties to his five daughters instead.

An executor was called upon to wind up his estate, and was faced with the third grandson’s will leaving his estate to his daughters on the one hand, and the original will which excluded his daughters from inheriting the properties on the other hand, along with a claim to the properties from the great grandsons.

The daughters and executor took the view that the terms of the fideicommissum were unfairly discriminatory on the basis of sex, and should be set aside as being against public policy and unconstitutional. They approached the court for direction, asking the court to remove the discrimination against female descendants from the original will, to enable the daughters to inherit their late father’s properties. The Master of the court accepted the third grandson’s will in favour of his daughters, and abided the decision of the court on the validity of the fideicommissum. The great grandsons opposed the application.

The court considered wills creating charitable and educational trusts which had discriminated against Jews, women and those not “of European descent”. These had been varied by the courts to remove the unfair discrimination. In at least one case, the discrimination on the basis of race had not been deemed unfair, and an application to vary terms had been refused.

The court drew a distinction between wills having a public character (providing for ongoing bursaries, for example) and those which were strictly private in nature. In the latter cases, the freedom of testation of the person making the will should be respected, the court reasoned, even if the wishes expressed were unreasonable. No potential heir enjoys the right to an inheritance, and the maker of a will is free to disinherit whomever they please.

In the present case, the parties were in agreement that there was unfair gender discrimination in the fideicommissum. The argument centred around the appropriate limits on freedom of testation – and whether the maker of a will was required to refrain from unfair discrimination.

The court considered which was the lesser of two evils – unfair discrimination against a small group of potential female heirs (as the discrimination against an earlier generation of potential female heirs, and their female heirs in turn, was past and irrevocable, and this substitution was the final one in terms of the will), or incursion upon a testator’s freedom to arrange their estate as they chose. The court decided that, even if the fideicommissum perpetrated unfair discrimination against the daughters, this was a reasonable and justifiable limitation upon their right to equality. The freedom of testation had primacy in the private sphere. The application to remove the discrimination from the will, accordingly failed, and the great grandsons inherited the properties in place of the daughters.

In sum, this judgment means that the maker of a will is indeed entitled to be sexist, as regards their family members – but in general not as regards public beneficiaries of charities or educational bursaries set up through their will.

One wonders whether the result would be the same if the maker of a will disinherited descendants of a specific race or religion instead of a specific gender.



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