Prof. Francois du Toit

Permanent URI for this collection

https://hdl.handle.net/10566/2335

Position:	Senior Lecturer
Faculty:	Faculty of Law
Qualifications:	Bachelor of Arts (B.A. (Law)), University of Stellenbosch, 1989
	Bachelor of Law (LL.B), University of Stellenbosch, 1991
	Master of Laws(LL.M), University of Stellenbosch, 1994
	Doctor of Laws (LL.D), University of Stellenbosch, 2000
	My publications in this repository
More about me:	here
Tel:	021 959 3308
Email:	fdutoit@uwc.ac.za

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Now showing 1 - 11 of 11

Testamentary rescue: an analysis of the intention requirement in Australia and South Africa
(LexisNexis Australia, 2014) du Toit, Francois
This article provides a legal-comparative perspective on the rescue of formally irregular wills through the exercise of judicial dispensing powers in Australia and the comparable exercise of a judicial condonation power in South Africa. The article analyses in particular the requirement that the deceased must have intended the informal instrument in question as his or her will — a requirement common to the Australian and South African testamentary rescue dispensations. The article contextualises the aforementioned analysis through a comparative examination of judicial engagement with testamentary rescue in three scenarios that frequently confront Australian and South African courts, namely, the rescue of (i) instructions for the preparation of wills; (ii) draft wills; and (iii) suicide letters.
Criticism of the testamentary undue influence doctrine in the United States: lessons for South Africa?
(Lousiana State University Law Center, 2013) du Toit, Francois
This article analyzes undue influence in the South African law of wills in light of scholarly criticism of the testamentary undue influence doctrine in the United States. The Article assesses particularly whether the so-called “undue influence paradox”, identified in American scholarship, is manifest in the South African law of wills: is testamentary undue influence’s role as protector of testamentary freedom undermined in order to realize economic family protectionism? The Article proceeds, with due recognition of the differences between the American and South African legal traditions, from American scholars’ conceptualization of the paradox and their views on other complexities associated with the doctrine, to an exposition on the conceptualization, the statutory regulation, and the judicial utilization of testamentary undue influence in South Africa. The Article determines whether or not the South African legal position conforms to some or all of the assertions made in regard to the undue influence paradox and further complexities associated with the testamentary undue influence doctrine in the American context. The Article provides a mixed jurisdiction’s response to the call for the abolition of the testamentary undue influence doctrine in recent scholarship from the United States.
Roman-Dutch law in modern South African succession law
(Ars Aequi, 2014) du Toit, Francois
Modern South African succession law adheres to many of the tenets of Roman-Dutch succession law, and present-day South African courts frequently invoke Roman-Dutch authority to address questions regarding contemporary succession law. This article explores the history and current significance of Roman-Dutch law in South African succession law.
Constitutionalism, public policy and discriminatory testamentary bequests - a good fit between common law and civil law in South Africa's mixed jurisdiction
(Tulane European & Civil Law Forum, 2012) du Toit, Francois
This article investigates South African courts' treatment of discriminatory testamentary bequests in the pre- and post-constitutional eras. It shows a change in judicial attitude towards such bequests from an accommodating, tolerant stance, purportedly founded on South Africa's Roman-Dutch common law, during the pre-constitutional era to a firm normative approach with a focus on equality and non-discrimination during the post-constitutional years. The Article assesses critically this post-constitutional approach against precedent and scholarship from Common Law and Civil Law jurisdictions and asks whether, given the mixed nature of its legal system, the current South African position in regard to such bequests achieves a good fit between the Common Law and Civil Law.
Trust deeds as ‘constitutive charters’ and the variation of trust provisions: a South African perspective
(Oxford University Press, 2013) du Toit, Francois
In this article, I assess the constitutive status accorded to trust deeds in Potgieter v Potgieter and Pascoal v Wurdeman, two recent South African judgments on trust variation. In particular, I analyse judicial condemnation of invoking reasonableness or fairness as free-standing norms to refashion the terms of trust deeds outside established common law or statutory norms; and I illustrate the place and role that equitable considerations play in South Africa as components of existing aggregated legal rules on trust variation. I also test the judicial approach taken to the foundational nature of trust deeds in the aforementioned judgments against the status accorded to trust instruments and documents by the Trust Property Control Act—a statute that regulates aspects of trust law in South Africa.
Co-trusteeship and the joint- action rule in South African trust law
(Elsevier, 2013) du Toit, Francois
This article examines the fundamental rule of South African trust law that co-trustees must always act jointly in regard to trust administration. It highlights the rule's foundation, but also contextualizes some of the practical problems associated with the rule's operation. In particular, the article focuses on South African courts' treatment of the joint-action rule, and shows that judicial engagement with the rule has not been satisfactory in all respects. The article casts some light on possible future developments in regard to co-trusteeship in South African law.
Erfregtelike onwaardigheid: Enige lesse te leer vir die Suid-Afrikaanse reg uit die Nederlandse reg?
(Juta, 2012) du Toit, Francois
The regulation of unworthiness to inherit in Book 4 of the (new) Dutch Civil Code (2003) occasioned numerous interpretation and application challenges to Dutch courts, notaries and inheritance scholars. These challenges correspond greatly with many of the contentious issues regarding unworthiness to inherit in modern South African law. This article investigates certain aspects of the Dutch legal position with a view to commenting on, and suggesting solutions to, corresponding challenges in the South African context. Issues such as the effect of unworthiness to inherit on matrimonial property claims as well as maintenance claims against a deceased estate, the suitability and appropriateness for South African law of a “forgiveness provision” that eliminates unworthiness similar to the one included in the Book 4 of the Dutch Civil Code and the regulation of unworthiness to inherit in the context of euthanasia are analysed from a legal-comparative standpoint.
The constitutional family in the Law of Succession
(Juta Law, 2009) du Toit, Francois
This article traces the development of the constitutional family in the South African law of succession through a synopsis of Constitutional Court and High Court judgments on the application of the Intestate Succession Act and the Maintenance of Surviving Spouses Act beyond the confines of the traditional conception of 'family'. It also investigates significant legislative developments that impacted on the establishment of the constitutional family in the South African law of succession.
The constitutionally bound dead hand? The impact of constitutional rights and principles on freedom of testation in South African law
(Juta, 2001) du Toit, Francois
This article analyses critically the impact of constitutionalism on freedom of testation and its limitation in South African law. It proposes the judicial utilisation of a 'constitutionally-founded boni mores criterion' in addressing particularly testamentary forfeiture clauses and charitable testamentary bequests.
The limits imposed upon freedom of testation by the boni mores: Lessons from common law and civil law (continental) legal systems
(Juta, 2000) du Toit, Francois
This article investigates the limitation of freedom of testation in terms of the boni mores or public policy from a legal-comparative perspective. The limits imposed by public policy on freedom of testamentary disposition in English and Australian law are analysed, and the limitation of freedom of testation in terms of the good morals in Dutch and German law is investigated. It is proposed that the operation of the boni mores or public policy in these jurisdictions holds valuable lessons for future development in South African law.
The fiduciary office of trustee and the protection of contingent trust beneficiaries
(Juta Law, 2007) du Toit, Francois
This contribution focuses on two matters pertinent to the office of trustee. First, the fiduciary nature of the office of trustee is investigated, with particular reference to the essence of a trustee’s fiduciary duty. Secondly, the protection afforded by a trustee’s fiduciary office to trust beneficiaries, particularly contingent beneficiaries, is examined. It is shown that the protection enjoyed by contingent trust beneficiaries is frequently ascribed to their “vested interests in the proper administration of a trust” (which, it is submitted, means that each contingent trust beneficiary enjoys a personal right against the trust’s trustee for proper trust administration as counterpart to such trustee’s fiduciary duty). The question is then posed whether, as some commentators contend, such an interest in or right to proper trust administration allows extending a direct action, through the actio legis Aquiliae, to contingent trust beneficiaries for claiming delictual damages from an errant trustee in breach of trust.

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