Limitations on Testator Regret

The Right to Revoke a Will

Winston E. Miller / 2 February 2010

It is a well known principle of South African law that a pactum successorium, being an agreement by a testator not to revoke a will, is invalid. Any provision in an agreement in terms of which the contracting parties purport to regulate the devolution (successio) of the estate of one or both of them after the death of one of the parties will not be binding.

The execution of a notarial Antenuptial Contract between intending consorts prior to the official marriage ceremony in South Africa is necessary to determine the marital regime.of the intended marriage. By concluding an Antenuptial Contract the marriage regime will be out of Community.

There is an unusual exception to the rule that pactum successorio are invalid, namely the inclusion in a registered antenuptial contract of provisions relating to the devolution of property on the death of one of the spouses.

An Antenuptial Contract is not a testamentary act (a will). It does not follow the formalities of the Wills Act A will must be executed by the testator according to the prescribed formalities of the Wills Act. The testator retains the right to revoke his will by written act at any time.

However if the parties to the Antenuptial Contract include in the Antenuptial Contract provisions relating the devolution of a property on death, the pactum successorium may only be revoked by the mutual consent of the parties expressed in a mutual will.

THE MORAL OF THE STORY: ladies, ensure the property is bequeathed in terms of the antenuptial contract!