autonomy of testators.[1] Testators who wanted to protect their autonomy would have executed wills. Moreover, according to Mr Gory, this argument itself amounts to discrimination on the grounds of sexual orientation in that, irrespective of any deliberate intention of a heterosexual spouse in not making a will (whatever such intention may be), his or her surviving spouse is nonetheless an intestate heir of the deceased estate.
[36] It is submitted further that there is really no evidence to support the contention that the confirmation of paragraph 3 of the order of the High Court would cause any significant disruption to or dislocation in the administration of deceased estates that had not been finally wound up by the date of the confirmation order. The retrospective operation of an order of reading-in will not, of itself, affect the validity of the appointment of an executor. In circumstances where a surviving same-sex life partner can persuade a court to remove an executor under section 54 of the Administration of Estates Act 66 of 1965,[2] it would be contrary to the interests of justice to allow that executor to continue in his or her office. To deprive the order of any retrospective effect would also be inconsistent with the orders made in the cases previously decided by this Court in matters affecting substantive rights of inheritance.[3] In any event, it would be neither just nor equitable to deny the applicant and those in a similar situation to him effective relief because of any inconvenience
- ↑ This is evident from both of the other decisions of this Court on the constitutionality of section 1(1) of the Act, in Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) and Daniels v Campbell NO and Others 2004 (5) SA 331 (CC); 2004 (7) BCLR 735 (CC).
- ↑ See para [56] below.
- ↑ See the cases cited in n 37 above.
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