Family Law

Fideicommissum

A testamentary condition where property bequeathed to one person (fiduciary) must be passed on to a second person (fideicommissary) on the occurrence of a condition (usually the fiduciary's death).

Legal Definition

A fideicommissum is a mechanism in wills that allows a testator to direct that property passes first to one person (fiduciary) and then to another (fideicommissary) on a specified event. The fiduciary can use and enjoy the property but typically cannot sell or mortgage it without the fideicommissary's consent. It is commonly used to keep family property within a family across generations.

📖 Constitutional / Statutory Basis: Section 25 (property rights)

Practical Example

A testator leaves his farm to his son (fiduciary) but stipulates that on the son's death, the farm must pass to the testator's grandchildren (fideicommissaries). The son cannot sell the farm without the grandchildren's consent.

Frequently Asked Questions

Can a fiduciary sell property subject to a fideicommissum in South Africa?

Generally not without the consent of the fideicommissaries or a court order. The fideicommissary's rights are protected against alienation by the fiduciary. Courts can authorise sale if it is in the best interests of all parties.

Does a fideicommissum survive insolvency in South Africa?

The fideicommissary's interest is protected from the fiduciary's creditors. The property held subject to a fideicommissum does not form part of the fiduciary's insolvent estate — only the fiduciary's personal interest in the property does.

Related Terms

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