TOPIC 13
PACTA SUCCESSORIA VS DONATIO MORTIS CAUSA
1. Introduction
In South Africa, succession normally takes place either in accordance with the provisions of a will or according
to the rules of the law of intestate succession. There are occasions, however, when testators try to regulate
the devolution of their estates by means of a bilateral judicial act, i.e. a contract. These agreements are
generally seen as pacta successoria and are invalid.
Pactum successorium = a contract in which the parties attempt to regulate the devolution of the entire or part
of the assets of one or both parties.
E.g. I promise I will bequeath my antique clock to you when I die.
• A promise would normally be a binding contract when the promissee accepts the offer. In this example,
however, it is linked to the devolution of property that is supposed to fall into the estate of the promisor who
has freedom of testation. It is, therefore, invalid.
There are two exceptions to this general rule:
1. A succession clause embodied in an antenuptial contract, and
2. A donatio mortis causa executed in compliance with the formalities of a will.
2. Origin of the prohibition of the pactum successorium
The prohibition of the pacta successoria originates in common law.
Reasons for the prohibition:
• In Roman law, there were only two methods of succession, namely by means of a valid will and through
intestate succession. The Romans considered it a disgrace to die intestate. Consequently, it was a non-
debatable principle that a will was revocable until the death of the testator. Most judicial acts that could
restrict the freedom of testation of the testator were treated with suspicion and were considered contra
bonos mores.
It is a basic principle in our law that a testator has complete testamentary freedom over his or her assets and,
with only few exceptions, any agreement that restricts this freedom is declared null and void. However, a
testator’s freedom of testation is not, and has never been, absolute in our law, and it may be limited. South
African law, in some instances, allows for the limitation of freedom of testation on the basis of relevant social
and economic factors.
- In Syfrets, it was held that considerations of equality and other constitutional principles are more
important than freedom of testation.
, - The Matrimonial Property Act also restricts freedom of testation by providing that that if a testator is
married out of community of property subject to the accrual system, the surviving spouse may have a
claim for half the difference between the accruals, provided that her estate is the smaller of the two.
- A surviving spouse may, under certain circumstances, claim maintenance from their deceased’s
spouse’s estate
* Thus, as is evident from the above, it is clear that the law has been willing to limit freedom of testation in
certain circumstances.
Objections in modern South African law:
Objections to the pactum successorium are not limited to those raised by the common law writers. Further
objections are:
Reasons for the prohibition Counter-arguments
1. The pactum successorium interferes with the However, the fact that an agreement curtails a party’s
testator’s freedom of testation. freedom of testation might not appear to be a
sufficient reason for striking down the contract, and
even if it is a sufficient reason, it is still arguable that
it can be a justifiable limitation on the testator’s
freedom of testation.
2. The pactum successorium might evoke a desire for In South African law it is generally accepted that this
the death of the contracting party. objection no longer applies because someone who
caused the death of a deceased will be disinherited as
a result of the bloedige hand maxim.
3. The pactum successorium results in the evasion of In light of section 2(3) of the Wills Act, this objection
the formalities that are normally required for the is rather weak (this section grants the court the
execution of wills. power to order the Master to accept the document
invoked as a will in spite of non-compliance with the
formalities). Thus, wills that do not comply with all of
the formalities can still be condoned
4. The pactum successorium denies the court the This objection is not unique to the law of testate
opportunity to hear oral evidence from the alleged succession as the courts are burdened with this
contracting party when deciding on a dispute problem when dealing with a dispute regarding a
regarding the pactum successorium because such deceased testator’s will.
party will be deceased.
5. The pactum successorium creates an easy method This argument is not strong given the provisions of
of evading the provisions of the Estate Duty Act section 55 and 58 of the Income Tax Act and the
(paying estate duty tax is avoided because the assets capacity of the Commissioner for SARS to levy
are no longer part of the deceased’s taxable estate). donation taxes in appropriate cases.
* Note: the fact that the pactum successorium restricts the freedom of testation of the testator is presently
still the predominant reason why the pactum successorium is considered contra bonos mores and invalid.
