Authored By: Wandile Mvelo Mthembu
The University of the Witwatersrand
Death is often described as the point at which all earthly obligations come to an end. According to the legal system, however, that assumption is only partly true. The continued recognition of maintenance obligations against a deceased’s estates demonstrates that the legal system increasingly prioritises relational responsibilities over absolute proprietary autonomy. While death may terminate contracts of personal service and dissolve many personal relationships, it does not necessarily extinguish every legal duty owed to one’s family. Certain maintenance claims remain enforceable against the deceased estate. This position appears, at first glance, to conflict with the long-established principle that every person enjoys the freedom to determine the devolution of their estate through a valid will. The apparent tension, however, serves a different constitutional purpose. Although the South African law of succession strongly protects freedom of testation, that freedom cannot be understood in isolation from the constitutional values of dignity, equality and ubuntu. Rather than limiting the freedom of testation, maintenance claims against deceased estates demonstrate how constitutional values reshape private law by requiring proprietary rights to coexist alongside legally recognised familial obligations.
Freedom of testation has long been recognised as one of the defining principles of succession in South Africa. Rooted in Roman-Dutch law, it affords every competent person the autonomy to determine how their estate should devolve upon death through the execution of a will. The principle reflects a broader commitment to proprietary autonomy by recognising that individuals should generally be free to dispose of the wealth accumulated during their lifetime according to their personal wishes. Yet, like every principle of private law, freedom of testation doesn’t exist in constitutional isolation. Since the advent of constitutional supremacy, all common law-principles must be interpreted and, where necessary, developed in accordance with the spirit purport and objects of the Constitution of the Republic of South Africa.[1] S39(2), together with the superior courts’ inherent power under S173, ensures that the common law remains capable of constitutional development.[2] As a result, freedom of testation remains the starting point in the law of succession but is it no longer regarded as absolute. Courts have repeatedly acknowledged that testamentary freedom may yield where its exercise conflicts with constitutional values, public policy or legally recognised obligations owed to others. The law of succession therefore illustrates a broader constitutional shift away from an exclusively individualistic conception of property towards one that requires proprietary right to coexist with duties arising from family relationships and human dignity.
The most compelling illustration of this qualification arises where maintenance claims are brought against a deceased’s estate. Although the common-law duty of support generally terminates upon death, the law recognises that certain dependants should not be left destitute merely because the person responsible for their support has died. The clearest example is the statutory right created by the Maintenance of Surviving Spouses Act, which entitles a surviving spouse to claim reasonable maintenance from the deceased’s estate insofar as they are able to provide their own reasonable needs and the estate has sufficient means.[3] The Constitutional Court’s decision in Daniels v Campbell NO significantly broadened the protective reach of the Act by holding that spouses married in accordance with Muslim rites fall within its ambit, thereby affirming that maintenance legislation must be interpreted consistently with constitutional values of equality and dignity.[4] Equally significant is the Volks NO v Robinson case, where the Constitutional Court declined to extend the Act to permanent life partners who had elected not to marry, emphasising that the statutory remedy remains linked to legally recognised marital relationships.[5] These decisions demonstrate that death does not necessarily extinguish every financial consequence of familial responsibility; instead, the legal obligation transforms into a claim against the estate itself. The practical implications are considerable. Every successful maintenance claim diminishes the assets available for distribution among heirs, potentially affecting children from subsequent marriages, testamentary beneficiaries and other dependants whose financial expectations become subordinate to legally enforceable maintenance claims.
The justification for this apparent intrusion upon testamentary freedom lies not simply in statutory intervention but in the constitutional values that increasingly shape private law in the country. Dignity requires that individuals who were genuinely dependent upon the deceased are not reduced to destitution through the rigid application of proprietary rules. Equality demands recognition that surviving spouses and dependent family members frequently occupy economically vulnerable positions, particularly where one partner sacrificed employment opportunities in order to take care of the family. Underlying these principles is Ubuntu; a constitutional value that conceives of personhood through relationships rather than radical individualism.[6] Unlike classical liberal conceptions of ownership, Ubuntu recognises that wealth is accumulated and enjoyed within families and communities whose members owe reciprocal obligations to one another. It is therefore unsurprising that the law of the land increasingly balances proprietary autonomy against continuing familial responsibility. Public policy, informed by constitutional norms, likewise favours preventing vulnerable dependants from becoming reliant upon the state where provision may reasonably be made from the deceased’s estate. The law thus reflects an understanding that succession is concerned not merely with transferring property but with preserving the dignity and stability of those whose livelihoods were intertwined with the deceased during life.
This constitutional orientation becomes even more compelling when viewed through the lens of customary law. In contrast to the individualistic assumptions that traditionally underpin common law succession, customary law has long understood family relationships as collective in nature, emphasising reciprocal duties and communal responsibility over absolute personal autonomy. Today, customary law enjoys constitutional recognition as an independent source of South African law, with courts being required to apply and develop it where appropriate, subject only to the Constitution. The Constitutional Courts decision in Bhe confirmed that the law of succession itself is not immune to constitutional development.[7] Instead of existing as a historical curiosity, customary law remains a living legal system which is capable of evolving alongside contemporary constitutional values. Its emphasis upon collective responsibility resonates profoundly with Ubuntu, which rejects the notion that legal obligations begin and end with the individual alone. Within many communities that practice customary law, responsibility for the welfare of the children and vulnerable family members has never rested exclusively upon one parent. Rather, it has been a duty shared amongst the broader family structure. This understanding enriches modern succession law by demonstrating that maintenance claims against deceased estates are not merely statutory exceptions to testamentary freedom. They also reflect a deeply rooted African conception of family solidarity in which responsibility survives the death of one individual. Because the family itself endures. In this respect, customary law does not undermine constitutionalism; it gives practical expression to it by illustrating how indigenous legal traditions continue to inform the development of South African private law.
The resulting tension between succession and maintenance ultimately exposes a broader socio-economic reality. Freedom of testation is a principle most readily exercised by those fortunate enough to possess wealth capable of distribution, whereas maintenance legislation exists primarily to protect those who lack the financial means to sustain themselves independently. The apparent conflict between proprietary autonomy and maintenance therefore reflects competing visions of justice rather than mutually exclusive legal rules. The law of the land does not abolish testamentary freedom; it qualifies its exercise where vulnerable dependants possess legally recognised claims that deserve protection. This balanced approach recognises that private property remains an important feature of constitutional democracy while simultaneously acknowledging that property cannot be divorced entirely from the relationships and responsibilities through which it is often acquired and sustained. The deceased’s estate therefore becomes more than a collection of distributable assets. In appropriate circumstances, it represents the final legal expression of responsibilities that death itself could not extinguish.
Reference(S):
[1] S. Afr. Const., 1996.
[2] S. Afr. Const., 1996 §§ 39(2), 173.
[3] Maintenance of Surviving Spouses Act 27 of 1990 § 2 (S. Afr.).
[4] Daniels v. Campbell NO 2004 (5) SA 331 (CC).
[5] Volks NO v. Robinson 2005 (5) BCLR 446 (CC); 2005 (5) SA 446 (CC).
[6] S. Afr. Const., 1996.
[7] Bhe v. Magistrate, Khayelitsha (Commission for Gender Equality as Amicus Curiae); Shibi v. Sithole; South African Human Rights Commission v. President of the Republic of South Africa 2005 (1) SA 580 (CC).
