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The concept of testamentary freedom has traditionally been associated with the law of succession in jurisdictions with legal regimes based on the common-law system. This concept became subject to abuse and dependents of deceased testators were sometimes left to the mercy of the community for their support. New Zealand was the first jurisdiction to counteract this abuse by introducing in its law, dependents' relief legislation which, essentially, acted as a flexible restraint on testamentary freedom. This concept retained the traditional testamentary freedom, yet, the courts were given the authority to remedy any abuses of such freedom. The Canadian common-law provinces through a period of sixty-four years have adopted legislation similar to that enacted in New Zealand. In Canada, the concept has worked, on the whole, well. Many Canadian jurisdications have, through the years, adjusted their original legislation to meet what appears to be contemporary norms. The province of Ontario has undertaken extensive reform, and to a certain extent, has attempted to reconcile the provisions of succession law with that of matrimonial property rights. The province of Ontario appears to have achieved some degree of harmony between the two legal concepts. The province of British Columbia on the other hand, although the issue has been the subject of a study and a Report of the Law Reform Commission of British Columbia, has retained the legislation as originally enacted in 1920. The jurisprudence has, however, interpreted the statute with such inconsistency that the statute has gone beyond its remedial purpose and has been interpreted as a form of forced heirship. This interpretation cannot be supported by the wording of the statute, nor by its historical intent. This thesis surveys the various enactments commencing with the one in New Zealand, the progenitor statute, and continuing with those of the Canadian provinces and finally, the U.K. statute. There is also a general comparison of contemporary legislations. The jurisprudence in British Columbia is analysed from the enactment of the legislation and the shifts that the courts have undertaken over the past sixty-eight years are considered. In addition to the philosophical defect of the B.C. legislation, certain technical deficiencies are also considered. The present law of Ontario, which has been the subject of extensive reform, is analysed and compared with that Province's previous legislation as well as that of the province of British Columbia. The effect of the present state of law interpreting the British Columbia legislation is such that it can be said that as it stands, it has outlived its social utility and requires review to meet contemporary social norms. The general recommendation is that dependency be a condition precedent to an application for relief, and that the spouse be entitled as of right, in any event, to half of the family assets. The investigation for this thesis consisted, primarily, of analysis of the legislative debates, appropriate statutes and the applicable jurisprudence interpreting such statutes. / Law, Peter A. Allard School of / Graduate

LL.M. (Tax Law) / Capital Gains Tax (“CGT”) was introduced with effect from 1 October 2001 by the insertion of section 26A and an Eighth Schedule into the Income Tax Act 58 of 1962, by the Taxation Laws Amendment Act 5 of 2001. Paragraph 40(1) of the Eight Schedule provides that a deceased person must, with certain exceptions, be treated as having disposed of his assets to his estate for proceeds equal to the market value of those assets as at the date of death. Paragraph 40(1A) of the Eight Schedule provides that if an asset of a deceased person is treated as having been disposed of under paragraph 40(1) and is transferred directly to the estate of the deceased person, the estate must be treated as having acquired the asset at a cost equal to its market value as at the date of death for base-cost purposes, and if the asset is transferred directly to an heir or legatee, the heir or legatee must be treated as having acquired the asset at a cost equal to its market value as at the date of death for base-cost purposes. The capital gain will be the difference between the market value of a taxable asset of the deceased on the date of his death and its base cost to him, which is included in his final income tax assessment and which will have to be settled out of the estate‟s assets. There are many arguments in favour of the discontinuance of the levying of CGT at the death of a taxpayer in South Africa, which arguments become evident when comparing the South African CGT provisions regarding the levying of CGT at death with tax jurisdictions such as Australia, the United States, the United Kingdom, Canada, Botswana and Nigeria. Canada for example abolished their inheritance tax in 1972 which in that particular situation justifies the levying of CGT at death. If CGT will continue to be levied at the death of a taxpayer it is suggested that a carry-over approach in terms of which the heir inherits the asset at its acquisition cost and the CGT liability is deferred until the heir actually disposes of the asset should be followed. This approach is currently followed in Australia, Botswana and Nigeria. The holder of an inherited bare dominium will suffer at the hands of a CGT anomaly where the deceased created a limited interest, for example a usufruct over a fixed property bequeathed by him to the bare dominium holder. The anomaly that transpires is that the limited interest created by the deceased will result in an artificial drop in the base cost of the fixed property so bequeathed and there will be no adjustment to the base cost when the bare dominium holder succeeds to full ownership of the fixed property, for example when the usufructuary passes away, meaning that the same capital gain will be taxed twice. It is submitted that legislative amendments are required to provide for an increase in the base cost applicable to the bare dominium holder when the usufructuary eventually passes away. Alternatively the SARS‟s current practice in this respect should be altered to avoid the unbearable situation where a capital gain may be taxed at 2 separate instances. At least two anomalies exist when dealing with capital losses in the deceased‟s final period of assessment and in the winding up of the deceased‟s estate. Firstly a capital loss may not be carried forward from the deceased‟s final assessment to his deceased estate to be set off against capital gains that may be realised in the winding up of the estate. Secondly a capital loss incurred on the sale of a capital asset during the winding up of a deceased estate cannot be carried over from the deceased estate to the heirs of the deceased and will thus remain unutilised. It is suggested that the method followed in Canada in respect of capital losses that occurred in the year of a taxpayer‟s death should be followed in South Africa, ie that such capital loss may be carried back three years in order to reduce any taxable capital gains that occurred in those years or that the capital losses may be utilised to reduce other income of the taxpayer in his final return. It is further suggested that this method should also be followed in respect of unutilised capital losses that occurred in the winding up of the estate, alternatively the capital losses so realised must be carried over to the heirs of the deceased.

NOTA: Aquesta tesi va acompanyada d'un fitxer amb una base de dades de Capítols matrimonials.RESUM:L'objectiu principal d'aquesta tesi doctoral ha estat aproximar-nos als canvis socials experimentats per la comarca del Baix Empordà durant el segle XVIII i la primera meitat del segle XIX, posant especial èmfasi en els oficis relacionats amb la terra. Com a tesi principal del nostre estudi hem plantejat que la pagesia pobra va poder tenir un paper més important del que se li ha atorgat històricament en els canvis agraris i socials produïts en el transcurs d'aquests dos segles. L'estudi s'ha dut a terme a partir de l'anàlisi de dos tipus de documents principalment; els inventaris post mortem i els capítols matrimonials que ens han permés analitzar l'evolució i els canvis en alguns oficis, mostrant un col·lectiu, el dels treballadors, i posteriorment menestrals que, segons les dades analitzades, va tenir una importància més rellevant en el conjunt de la societat i de les transformacions que es produïren durant els segles XVIII i XIX del que tradicionalment se li ha atorgat. / The main objective of this thesis has been to make an aproximation to the social changes experienced by the Baix Emporda during the eighteenth century and the first half of the nineteenth century, with particular emphasis on agricultural-related professions. As a main thesis of our study we suggest that the poor farmers could have played a more important role in agricultural and social changes produced during these two centuries than historically has been given credit for. The study was carried out from the analysis of mainly two types of documents, post mortem inventories and the marriage chapters. This has enabled us to analyze the evolution and changes in some trades, showing a collective, "treballadors", later called "menestrals", which, according to the data analyzed, had a more important role in the wider society and the transformations that occurred during the eighteenth and nineteenth centuries than traditionally has been considered.

The South African concept of freedom of testation is one of the most absolute concepts of freedom of testation in westernised legal systems. It is suggested that the South African concept of freedom of testation is a memento of capitalist patriarchy. As the South African legal system practices a nearly absolute concept of freedom of testation, capitalist patriarchy has maintained masculine control of property in South Africa and perpetuated the systems of male dominance prevalent in South Africa. Freedom of testation allows for wealth to pass from one male to another. It also allows entrenched gender roles to continue by excluding women from inheriting. Thus the South African law of testate succession and its central concept of freedom of testation allows for discrimination on the ground of gender. / Jurisprudence / LL.M

During the nineteenth century, Indiana was home to nearly two dozen agricultural communities comprised of primarily African American residents. These short lived communities represented one of the few contexts in which both African American and non-African American groups lived and worked together within a viable rural community. By analyzing one such settlement, this study presents a basis for comparative functional analysis at the household level through the use of pattern identification of material culture. This study utilized both probate inventory assessments of the period and archeological material within the same classification scheme. Advantages and disadvantages of both data sources are also presented. While the data between the two groups showed little differentiation concerning household material composition, slight differences, particularly at the class level, was evident. These differences may have been based in socio-economic concerns or may have exhibited active consumer choice, reflecting minute aspects of cultural identity. / Department of Anthropology

The South African concept of freedom of testation is one of the most absolute concepts of freedom of testation in westernised legal systems. It is suggested that the South African concept of freedom of testation is a memento of capitalist patriarchy. As the South African legal system practices a nearly absolute concept of freedom of testation, capitalist patriarchy has maintained masculine control of property in South Africa and perpetuated the systems of male dominance prevalent in South Africa. Freedom of testation allows for wealth to pass from one male to another. It also allows entrenched gender roles to continue by excluding women from inheriting. Thus the South African law of testate succession and its central concept of freedom of testation allows for discrimination on the ground of gender. / Jurisprudence / LL.M

This master dissertation (diploma) is committed to inheritance, inheritance law and inheritance with a focus on properties and also inheritance with international subject in the inheritance procedure. The goal of this work is to give sufficient information so that even the uninformed reader will know what is associated with inheritance, what are the basic terms from this area of law and also the questions of inheritance's inter-family relations because inheritance will be a subject everyone deals with eventually. The subject of this dissertation is inheritance throughout history to its current legal regulation. At the same time it is also mentioned inheritance as a change of ownership law and concepts that are related with this part of civil law. In the introduction is explained the terms of inheritance and inheritance law are explained with the view to the history of Roman law and to the Middle Ages. Next is an explanation of the basic law terms through to our current law regulation. There is also a focus on inheritance procedures including the change of the ownership rights and then will be the process of the registration of the ownership right to the real estate cadastre. With this topic is also connected a possibility of inheritance procedure with properties. At the end this work is included practices of case with international subject in the inheritance procedure. Because of the focus on the inheritance of properties, the last chapter is about the valuation of properties in the course of the inheritance procedure.