The freedom of testation is to have the right to instruct and bequeath in their Wills as they deem fit, however there are limits to this freedom of testation. There is however certain ways of ensuring, that these limits do not cause strayfrom the full desire of the Testator/Testatrix.

1. The subdivision of Agricultural land Act, stipulates that you cannot subdivide agricultural land (i.e. farms) without application and approval to the Department of Agriculture. This is one of the most common problems that occur in a will when a farm is bequeathed to someone other than a spouse, to whom the Testator/Testatrix is married IN Community of Property, like the children of the Testator/Testatrix. One cannot bequeath a farm to two or more individuals, and therefore this bequest will become obsolete. In any other circumstances, if a Will does not make proper provision for a bequest of an asset, then the Intestate Succession Act, which deals with matters where a deceased person died without having a valid Will, will guide the assets to be transferred to the Next-of-Kin of the deceased, however This will have the same effect if the Testator/Testatrix dies without a surviving spouse but are succeeded by two or more children to whom Agricultural land cannot be bequeathed in equal share.
2. The 1^st solution to the above scenario is to bequeath the Agricultural land to a Trust, or Company of which the above children or heirs are the Beneficiaries, directors or shareholders. This ensures that the agricultural land is transferred to one entity, which complies with the Agricultural land Act, and also benefit the heirs as intended by the Testator/Testatrix.
3. The 2^nd solution is to ensure that one’s Will makes provision for a Redistribution agreement, which will enable on of the above children to have the agricultural land registered in his/her name, and then having such child pay out the equal shares, bequeathed in the Will, to the other children, either with his/her own contribution, or if the estate of the Testator/Testatrix has enough liquidity, such a child may forfeit his/her cash inheritance, or a portion thereof to ensure a fair distribution as intended by the testator.
4. Should the Minister of Agriculture, not provide consent to subdivide agricultural land, and should the heirs of the deceased not be able to successfully redistribute the agricultural land, then the Executor of the Estate shall have to sell the agricultural land and distribute the value as indicated in the Will. This option is however seen as a last resort, as it will not portray the wishes of the Testator nor will it guarantee that all the heirs will give written consent.
5. Should no written consent be obtained from the Minister to neither subdivide, nor consent for redistribution or sale by the heirs, then the Executor shall have to refer the matter to Court for a Court order to sell the Agricultural land, causing unnecessary financial expenses for the estate.

The above seems very complicated, and to my opinion it is, however same can be avoided, if one’s Will is properly drafted by a professional, and that the right questions are asked before a Will is drafted, ensuring that the Testator/ Testatrix leaves behind a legacy, instead of a disaster.