Class notes
succession by contract (pactum successorium)
Comprehensive notes on the law of succession - everything you need to prepare and pass your exam.
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TOPIC 11: THE PACTUM SUCCESSORIUMThe general rule to keep in mind regarding this topic: succession
by contract is generally impermissible in terms of South African
law
- Pactum successorium = a contract of succession – which deals
with succession by way of contract.
- Pactum successorium or contract of succession is as a general
rule in South African law, impermissible and invalid (it is
unenforceable in terms of South African law).
- There are no testators in terms of a pactum successorium,
because this is not a will – it is a contract with contracting
parties.
- The pactum successorium in our law is invalid – it is
unenforceable and the reasons traditionally advanced is, that
if it was to be valid, it would undermine or negate the
freedom of testation of the parties bound to the contract and
it would also provide a way to circumvent the execution
formalities for wills that can be found in section 2(1)(A) of
the Wills Act (these are the reasons for the invalidity of the
pactum successorium).
A pactum successorium (a contract of succession) is, therefore, in
principle invalid because it is regarded as contra bonos mores
insofar as it negates the freedom of testation of the party/parties
bound by the contract
- Why? In terms of the common law, in terms of Roman Dutch
law the pactum successorium is regarded as contra bonos
mores (against public policy) because it negates the freedom
of testation of the parties bound to the contract.
- If the contract of succession is to be valid, it will negate the
freedom of testation of the parties bound by the contract.
1
, - In order to protect/conserve testamentary freedom, the
common law dictates that the pactum successorium is invalid
(contra bonos mores – contrary to public policy).
A typical example of a pactum successorium is where A and B
conclude a contract in the following terms:
‘We, A and B, agree that upon A’s death all of A’s assets will go to B’
- These parties are trying to, instead of A making a will in
terms of which A disposes of his assets in B’s favour, A and B
now conclude a contract in terms of which A undertakes that
all of A’s assets in terms of the contract will go to B.
Should this contract be valid, A loses his/her freedom of testation
because A will not be able to make a later will in which he/she
leaves all of his/her assets to C, because such a will shall violate A’s
contractual undertaking to B
- If this contract is to be valid and the parties are bound to the
contract, then A loses his freedom of testation.
- Because A cannot subsequently make a will in which A
disposes differently (example, in favour of C of all of A’s
assets), because the first party who will complain to A taking
such a step will be B – B will argue that he and A has a
contract in terms of which A is bound by that contract when A
dies – all A’s assets must go to B.
- A’s freedom of testation evaporates/is negated if this
contract is regarded as being legally valid (this is the basic
reason why the pactum successorium is regarded as invalid
in our law).
- Because freedom of testation is held in such high regard and
is worthy of legal protection – the common law therefore
dictates that the pactum successorium is invalid.
2
, Because freedom of testation is so highly regarded in South African
law, a contract that negates a person’s freedom of testation in the
above-mentioned manner is regarded as contra bonos mores
However, South African law also recognises freedom of contract,
which entitles any party to enter into any contract of his/her
choosing, and on such terms as he/she deems fit
- South African law also recognises the freedom of contract –
and the freedom of contract entails that two or more parties
can freely and voluntarily enter into any contract of their
choosing – they can include any provisions, any
terms/stipulations in that contract – that contract is then
valid, and the law must give effect to it.
- Freedom of contract is an equally treasured principle of our
law which also comes from Roman and Roman-Dutch law.
It is not clear why freedom of testation should receive preferential
treatment over freedom of contract when the validity of the
pactum successorium is at issue
- Why is freedom of testation ostensibly more important than
freedom of contract? Because, by disallowing the pactum
successorium, you are taking away the freedom of contract of
these two parties and you hold a higher regard for freedom of
testation.
- You advance freedom of testation as the reason for not
permitting them (A and B) to enter freely and voluntarily into
this particular contract.
- It is not clear why freedom of testation receives “preferential
treatment” over freedom of contract when one engages on
the issue of the invalidity of the pactum successorium.
- Reasons why the pactum successorium in our law is invalid:
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