BoE Trust Limited NO and Others (in their capacities as co-trustees of the Jean Pierre De Villiers Trust 5208/2006)

The late Daphne Brice De Villiers created a trust in her will dated 14 July 2002. She bequeathed the residue of her estate to the Jean Pierre De Villiers Trust, named after her late husband who was a leading applied chemist. The will provided that the trust income should first provide a monthly income to her retired domestic assistant, Paulus Mpai. The remaining income was to provide bursaries to 'White South African students' who had completed an MSc degree in Organic Chemistry at a South African University and planned to complete doctorate degrees at universities in Europe or Britain. The will stipulated that four university professors would be responsible for selecting students. The will further provided that if it became impossible to carry out the terms of the trust, the income should be donated annually to ten named charitable organisations. Mrs De Villiers had been advised that the racial restriction might be discriminatory but did not change her will. She passed away on 10 February 2006. When the trustees contacted the four universities (Cape Town, Stellenbosch, Free State and Pretoria), all refused to participate due to the racially discriminatory condition, though some indicated willingness to participate if the racial restriction was removed. The trustees applied to the court to have the word 'White' deleted from the will. The charitable organisations were not joined in the initial proceedings.

• Whether the word 'White' in the will should be deleted to allow the bursary bequest to proceed
• Whether freedom of testation is an absolute right or subject to constitutional limitations
• Whether the right to property under section 25 of the Constitution includes the right to give enforceable directions as to property disposal after death
• Whether the racially exclusive provision rendered the bequest contrary to public policy
• Whether the universities' refusal to participate constituted 'impossibility' triggering the alternative bequest to charitable organisations
• Whether the charitable organisations should have been joined as parties
• How to interpret the testator's intention regarding the meaning of 'impossible' in the will

1. The appeal was dismissed. 2. The costs of the appeal, to be taxed as between attorney and client, were to be paid out of the funds of the trust. 3. A copy of the judgment must be forwarded by the trustees to all the named charitable organisations. The effect of the order was that the trust income must be distributed to the charitable organisations named in the will, as the bursary bequest had become impossible to implement.

Freedom of testation is a fundamental principle of South African succession law, underpinned by constitutional rights to property (section 25) and dignity. While not absolute, and subject to rules of law including constitutional principles against discrimination, courts must first ascertain and give effect to the testator's intention as expressed in the will. Where a testator has expressly provided alternative arrangements in the event that the primary bequest becomes impossible to implement, and the primary bequest has indeed become impossible (whether due to discriminatory provisions or otherwise), courts must give effect to the alternative arrangement rather than rewriting the will by deleting discriminatory terms. 'Impossibility' in a testamentary trust includes not only objective impossibility but also practical or legal impossibility, such as where universities refuse to participate in a bursary scheme due to its discriminatory nature. The refusal of institutions to participate in a racially discriminatory bequest constitutes impossibility within the ordinary meaning of that term as used in a will. Courts should not strain to find ways to implement discriminatory provisions when the testator has foreseen the possibility of non-implementation and provided lawful alternatives.

The court made several important observations: (1) Section 25 of the Constitution protects a person's right to dispose of their assets as they wish upon death, as the contrary position would allow the state to benefit from someone's death and infringe property rights after death in ways not permitted during life. (2) Freedom of testation is enhanced by human dignity - the right to dignity allows the living and dying the peace of mind of knowing their last wishes will be respected after death. (3) The court cited with approval academic commentary by Francois du Toit regarding freedom of testation as a founding principle of South African succession law, supplemented by the principle that courts must give effect to the clear intention of testators, and supported by private ownership and the ius disponendi (right to dispose of property). (4) The court noted that while the attitude of the trustees and the noble purpose of promoting education in organic chemistry was commendable, these factors cannot be decisive in giving effect to the terms of a will - the testator's intention as expressed must prevail. (5) Mitchell AJ in the court below had suggested (without deciding) that there might be sufficient reason for the racial restriction given the testatrix's apparent intention to ameliorate skills loss by requiring bursary recipients to return to South Africa, but the SCA did not need to address this point. (6) The court observed that parties with a direct and substantial interest must be joined (citing common law principles) and that the charitable organisations clearly had such an interest as they would receive funds if the appeal failed but not if it succeeded.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies the scope and limits of freedom of testation in the constitutional dispensation, affirming it as a fundamental principle rooted in property rights (section 25) and human dignity, while acknowledging it is not absolute. (2) It distinguishes the Emma Smith precedent by demonstrating that where a testator has provided alternative arrangements for circumstances where the primary bequest cannot be implemented, courts should give effect to those alternative arrangements rather than striking down discriminatory provisions. (3) It provides guidance on interpreting testamentary intentions, particularly the meaning of 'impossibility' in wills - holding that impossibility includes situations where implementation is legally or practically impossible, not just objectively impossible. (4) It balances competing constitutional values: the right to dispose of property upon death versus equality and non-discrimination principles. (5) It demonstrates judicial deference to testamentary freedom where the testator has anticipated potential problems and provided lawful alternatives. (6) It confirms that courts will not rewrite wills to remove discriminatory provisions if the testator's clear intention can be given effect through alternative lawful provisions the testator themselves included. The case reinforces that while discriminatory bequests may not be enforced, the solution is not always deletion of offensive terms if the testator provided for alternative arrangements.