The concept of freedom of testation and its operation in a modern day Namibia

Abstract

None provided. The following is taken from the author's introduction:

In the course of this study, the basic principles underlying free testation will be set out and examined with reference to the specific significance it has for those left behind by the deceased testator. The emphasis throughout will be on the implications of free testation for those closest to the deceased, particularly the surviving spouse and the children. This particular analysis is warranted by the cry of many surviving spouses and children, that have suffered greatly at the hands of a deceased spouse and parent, who through the expression of his or her wishes in a will to which our law attaches a very high premium, may leave them destitute upon death. It is with the needs of these groups in mind that I have set about this task, hoping to provide some useful comments that will be of assistance in the formulation of future policies pertaining to the issue

The first chapter attempts to provide a compact historical chronology of the evolution of the concept of freedom of testation. In other words, we will be looking at the origin and development of the concept in earlier years, to see how it compares with the concept as it operates today. In order to fully understand and appreciate the problems subsumed under free testation, we need to know how and why it became part of the order of testate succession

In the second chapter, we will be looking at how free testation came to be part of South African law. Particular attention will be paid to the acceptance of free testation, as it operated in earlier times (together with the restrictions imposed back then), into South African law. This will be followed by a discussion of how this position was subsequently substituted, for a wider and more "liberal" approach. Some may question the relevance of examining the South African position, in addressing a Namibian problem. The answer very simply is, that the law as it is practiced in South Africa has important implications for the law as it operates in Namibia today. This will become clear, as we progress through the study

The third chapter will show how free testation as it operates in South Africa today, became part of the laws of Namibia. An analysis of the concept with specific reference to the Namibian community or society will then follow, to see if it is really conducive in a modern day, independent, Namibia. If it is found that the law does not adequately reflect the needs of the Namibian people, recommendations will be made as to the best possible approach to be followed, which would adequately cater for our needs

The discussion will then be rounded off with a conclusion