The purpose of this study is to determine whether a discretionary inter vivos trust is still an effective instrument for estate planning. The process of estate planning, the role the trust plays in it and the background to the trust are described. The taxability and tax saving opportunities when the trust are utilised are discussed in the light of the Estate Duty Act, 45 of 1955, the Income Tax Act, 58 of 1962 (including the Eighth Schedule thereof) and the Transfer Duty Act, 40 of 1949. The opinions of tax and legal authorities in articles and relevant case law are also discussed. The impact of the "letter of wishes" on the stipulations of the trust deed is examined. Amendments to the Income Tax Act have placed a limit on the use of a trust for estate planning through a number of anti-avoidance measures, the introduction of a capital gains tax (in the Eighth Schedule) and the imposition of a high tax rate. The increase in the deduction granted in arriving at the dutiable amount of an estate, in terms of section 4A of the Estate Duty Act, from R1 500 000 to R2 500 000 has imposed a further limit on the use of the trust as an instrument in estate planning. The research demonstrates that, notwithstanding the amendments to the Income Tax Act, the trust still is a viable instrument, mainly because the trust operates as a conduit and because of its potential use in dividing taxable income amongst a number of beneficiaries. The stipulations included in the trust deed and the "letter of wishes" (if one exists), must be thought through carefully when estate planning is done, as it can give rise to the application of the general and specific anti-avoidance provisions as included in sections 7 and 103 of this Act. The research also concludes that, in assessing the effectiveness of the trust as an instrument in tax planning, the disadvantage of paying the higher transfer duty when the immovable asset is transferred to the trust should be weighed up against the possible saving in income tax and estate duty at a later stage. It is also clear that most assets owned by the trust are tax neutral, whilst many of the amendments under discussion deal with the taxability of trust income. The quantitative considerations underlying the use of the trust as part of the estate plan, remain unchanged. The research concludes by providing a framework of quantitative and qualitative criteria that can be used by an estate planner to determine whether it will be advantageous to transfer an asset to the trust to achieve the objectives of the estate plan.

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2022 / We live in a Fourth Industrial Revolution(4IR) era where people exchange goods and services through the internet. Such transactions and communications are regulated by the Electronic Communications and Transactions Act (ECTA) 25 of 2002. The ECTA however amongst others, excludes the execution of testamentary wills from its application thus leaving no room for electronic wills. The execution of a valid will in South Africa is governed by the Wills Act 7 of 1953. Against this background, the study investigates whether the presence of enhanced 4IR innovations and methods have the potential to render the Wills Act obsolete and how the exclusion in the ECTA will contribute towards the formation of legal gaps in the law of succession. In confronting these questions, the study seeks to create a synergy between the two abovementioned statutes. The formalities of a valid will are contained in section 2(1) of the Wills Act, it can be deduced from them that a will should be in writing and signed by the testator and two witnesses. Any will not complying with the formalities is dependent upon the discretion of the High Court for validity as per section 2(3) of the Wills Act. The cases of MacDonald v The Master 2002 5 SA 64 (N) and Van der Merwe v The Master 2010 6 SA 546 (SCA) have confronted issues that relate to wills executed in electronic formats. The study interrogates the meaning of ‘writing’ and ‘signature’ and their significance and probes whether they can be fulfilled using electronic means. A comparative approach is adopted to establish the status of electronic wills in the USA and UK. The USA has promulgated legislation to deal with electronic wills and the UK has initiated the process of adopting their own electronic wills legislation in response to the 4IR. With the lessons learned from these jurisdictions the study makes recommendations on how synergy can be created between the Wills Act and the ECTA.

[pt] A sucessão causa mortis é um fenômeno jurídico do qual nenhum ser humano poderá escapar. Assim, organizar a própria sucessão é um gesto importante, que em geral traz maior utilidade aos bens que fazem parte do acervo patrimonial e maior conforto aos sucessores. Dentro dessa premissa, o presente trabalho busca tratar do contrato de doação e sua relação com direito das sucessões, seja a partir da lógica de uma sucessão planejada, seja diante de situações problemáticas em que as liberalidades são realizadas sem a roupagem jurídica de um contrato de doação. O último capítulo do trabalho trata, por sua vez, das doações e seus desdobramentos para depois da abertura da sucessão, cuidando em especial ao instituto jurídico da colação e das hipóteses de exclusão do dever de colacionar / [en] The causa mortis succession is a legal phenomenon from which no human being can escape. Thus, organizing the succession itself is an important gesture, which in general brings greater utility to the assets that are part of the heritage and greater comfort to the successors. Within this premise, the present work seeks to deal with the donation contract and its relationship with succession law, whether from the logic of a planned succession, or in the face of problematic situations where liberalities are carried out without the legal guise of a contract of Donation. The last chapter of the work deals, in turn, with donations and their consequences for after the opening of the succession, paying special attention to the legal institute of collation and the hypotheses of exclusion from the duty to collate.

This study examined the relationship between demographics, attitudes, and subjective norms (influences) on Virginia adults over 50 with at least one adult child and the presence of estate planning documents. The Theory of Reasoned Action (Azjen & Fishbein, 1980) was applied using a secondary data set of 189 participants. Regression analyses examined paths from external variables (demographics), attitudes toward the behavior, and subjective norms to the intention and behavior. Intention and behavior were defined as the possession, intention to possess, and non-intention to possess estate planning documents. Asset-focused documents included Will, Living Trust, Durable Power of Attorney for Financial Issues, and the Letter of Instruction. Health care-focused documents included Living Will and the Durable Power of Attorney for Health Care. An analysis was also conducted on the possession of a complete set of estate planning documents. Older persons were more likely to possess all documents except the Letter of Instruction. Respondents with higher assets were more likely to possess a Will. Respondents who were more educated were more inclined to possess a Living Will. Respondents that had informally promised property to their children were more likely to possess a Living Trust. Younger respondents were more likely to intend to possess a Will, the Durable Power of Attorney for Health Care, and the Living Will. Persons with lower assets were more likely to intend to possess a Will, and those with a goal for privacy in financial affairs and who believed they should help their adult children financially were more likely to intend to possess a Living Trust. Participants who intended to possess a Letter of Instruction were more educated, male, owned homes, and had a goal for privacy in financial affairs. Age (younger) was an indirect influence to the Letter of Instruction, mediated through the goal to leave family financial security. Participants with lower assets and in good emotional health did not have intention to possess a Living Trust. Male gender and owning a home were influences on not intending to possess a Durable Power of Attorney for Financial Issues. Males were less likely to have a Letter of Instruction. Respondents with the goal to leave an inheritance were more likely to have non-intention to possess the Durable Power of Attorney for Health Care and Durable Power of Attorney for Financial Issues. More education, lower income, and residing with a relative were mediated influences to the Durable Powers of Attorney for Health Care and for Financial Issues through the goal to leave inheritance. Respondents that were older, had more assets, owned homes, had a goal to leave an inheritance, and that had informally promised their property were more likely to possess more estate documents. Indirect paths to having a set of estate planning documents were more education, lower income, and residing with a relative, which were mediated through the goal to leave inheritance. The low number of estate planning documents respondents had and the lack of intention to obtain estate planning documents indicate a need for further education in the areas of estate planning. The occurrence of older age as an influence, particularly with health care-focused documents, indicates a need for more awareness in younger adults of their vulnerability, at any age, to illness or injury and that medical directives should be in place. / Ph. D.

From time to time the court delivers a judgment that has a ripple effect beyond what was expected, resulting in estate planners reconsidering their planning strategies. Such a judgment was the judgment delivered by the Supreme Court of Appeal (SCA) in the case of the Commissioner for the South African Revenue Services v Brummeria Renaissance 2007 6 SA 601 (SCA) (Brummeria case). In this case the interest-free loan and the right to use loan capital free of any interest obligation were under scrutiny. The SCA had to rule on whether or not this right had a determinable value and whether or not this value could be taxable in the hands of the borrower. The SCA ruled that the right under an interest-free loan should be included in the gross income of the borrower. Since estate planning often involves the use of an interest-free loan, as estate planning tool, to remove a growth asset from the estate of a planner, it could not be generally accepted any more that the granting of such loan would not have any tax implications. Although the interest-free loans used in the Brummeria case, did not relate to an estate planning exercise, the ruling resulted in much speculation regarding the future of the interest-free loan as estate planning tool. SARS tried to ease the uncertainty by issuing Interpretation Note 58, but there is still uncertainty to some extent. The focus of this mini-dissertation is to explain when and to what extend the provisions of the Income Tax Act 58 of 1962 (ITA) as well as the Estate Duty Act 45 of 1955 (EDA) will apply to the granting of an interest-free loan as part of an estate planning exercise. The provisions of the gross income definition, sections 7 and 64E, the provisions of donations tax as well as paragraph 12(5) and 12A of the Eighth Schedule to the ITA, were explored. Sections 3(3) and 3(5) of the EDA are discussed with the use of these loans for estate planning in mind. The question whether or not the interest-free loan is still a useful estate planning tool is also answered. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

From time to time the court delivers a judgment that has a ripple effect beyond what was expected, resulting in estate planners reconsidering their planning strategies. Such a judgment was the judgment delivered by the Supreme Court of Appeal (SCA) in the case of the Commissioner for the South African Revenue Services v Brummeria Renaissance 2007 6 SA 601 (SCA) (Brummeria case). In this case the interest-free loan and the right to use loan capital free of any interest obligation were under scrutiny. The SCA had to rule on whether or not this right had a determinable value and whether or not this value could be taxable in the hands of the borrower. The SCA ruled that the right under an interest-free loan should be included in the gross income of the borrower. Since estate planning often involves the use of an interest-free loan, as estate planning tool, to remove a growth asset from the estate of a planner, it could not be generally accepted any more that the granting of such loan would not have any tax implications. Although the interest-free loans used in the Brummeria case, did not relate to an estate planning exercise, the ruling resulted in much speculation regarding the future of the interest-free loan as estate planning tool. SARS tried to ease the uncertainty by issuing Interpretation Note 58, but there is still uncertainty to some extent. The focus of this mini-dissertation is to explain when and to what extend the provisions of the Income Tax Act 58 of 1962 (ITA) as well as the Estate Duty Act 45 of 1955 (EDA) will apply to the granting of an interest-free loan as part of an estate planning exercise. The provisions of the gross income definition, sections 7 and 64E, the provisions of donations tax as well as paragraph 12(5) and 12A of the Eighth Schedule to the ITA, were explored. Sections 3(3) and 3(5) of the EDA are discussed with the use of these loans for estate planning in mind. The question whether or not the interest-free loan is still a useful estate planning tool is also answered. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

South Africa entered a new era on 1 May 2004 with the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). Section 3 states that the mineral and petroleum resources are the common heritage of all South Africans. Due to the fact that a new era of mineral rights has been introduced, it is necessary to investigate the effect of the new Act on the process of estate planning. This study is focused to determine which of the rights found in the MPRDA can be classified as assets in an estate, and which of these rights should be discounted for in the process of estate planning that is focused on the inheritance of assets. The study firstly deals with the mineral rights as property in terms of section 25 of the Constitution. After a brief synopsis has been given of the old order mineral rights, the focus falls on the nature and transferability of the new order mineral rights and the implications that the said rights have on the process of estate planning. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.

South Africa entered a new era on 1 May 2004 with the commencement of the Mineral and Petroleum Resources Development Act 28 of 2002 (hereafter the MPRDA). Section 3 states that the mineral and petroleum resources are the common heritage of all South Africans. Due to the fact that a new era of mineral rights has been introduced, it is necessary to investigate the effect of the new Act on the process of estate planning. This study is focused to determine which of the rights found in the MPRDA can be classified as assets in an estate, and which of these rights should be discounted for in the process of estate planning that is focused on the inheritance of assets. The study firstly deals with the mineral rights as property in terms of section 25 of the Constitution. After a brief synopsis has been given of the old order mineral rights, the focus falls on the nature and transferability of the new order mineral rights and the implications that the said rights have on the process of estate planning. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2010.

The thesis examined the current system of the taxation of wealth in South Africa with an emphasis on the taxes that apply upon the death of the taxpayer. The focus of the research was on the problems associated with estate duty, namely the issue of double taxation; the alleged cumbersome administration of the tax and the limited revenue that it brings in; it’s questionable efficacy due to extensive estate planning on the part of taxpayers while they are still alive and its lack of uniformity with other wealth taxes. An interpretative research approach was followed which involved analysing documentary data. The conclusions that were reached were that estate duty as a wealth tax in South Africa has been rendered ineffective due to the inherent problems associated with its application, namely the fact that double taxation exists, not only in the context of capital gains tax, but also in that taxpayers resent being taxed upon death after having paid income tax during their lives. The perceived unfairness that is associated with estate duty has caused the creation of a secondary industry of estate planning, with the aim of minimising estate duty, which industry has resulted in the ineffectiveness of estate duty and its limited revenue. No evidence could be found regarding the Treasury’s assertion that estate duty is a cumbersome tax to administer. The final conclusion reached was that the current estate duty regime needs to be overhauled preferably by extending the current system of capital gains tax and abolishing estate duty, with due consideration being given to the consequences associated therewith.

OPSOMMING Alhoewel die trustfiguur reeds sedert die 19e Eeu in Suid-Afrika erken word, en as `n suiwer trustfiguur tipeer kan word, is die hantering van die regte van sekere trustbegunstigdes steeds in onsekerheid gehul. Die hoofrede hiervoor is die oorbeklemtoning van die wyse waarop trusts tot stand kom en die onderbeklemtoning van die unieke fidusiêre aard van die trust na oprigting daarvan. In Engeland, Skotland, Sri Lanka, Louisiana en Quebec, waar die suiwer trustfiguur ook aanwending vind, bestaan, in teenstelling met die oënskynlike regsposisie in Suid-Afrika, die moontlikheid van trustbegunstigdes sonder regte glad nie. In hierdie jurisdiksies speel die oprigtingsinstrument `n ondergeskikte rol en ontstaan die regte van trustbegunstigdes ex lege uit hoofde van die trustfiguur as `n vertrouensverhouding sui generis. Alhoewel die Suid-Afrikaanse trustreg die fidusiêre aard van die verhouding tussen trustee en trustbegunstigde erken, word die aard en omvang van die regte wat hieruit voort behoort te vloei nog nie voldoende deur die howe erken nie. Vertrouensverhoudinge waaruit regte en verpligtinge ex lege voortspruit, is bekend aan die gemenereg en word steeds hedendaags aangetref in verskeie ander vakdissiplines binne die Suid-Afrikaanse reg, waaronder die maatskappyereg. Die suiwer trustfiguur stel verder noodwendig `n vertrouensverhouding daar wat juis daarop gemik is om die regte van trustbegunstigdes te beskerm. Die standpunt word dus ingeneem dat alle trustbegunstigdes in Suid-Afrika derhalwe oor ex lege regte beskik. Daar word aan die hand gedoen dat trustbegunstigdes se regte nie uitsluitlik voortvloei uit hoofde van die tersaaklike oprigtingshandeling nie, maar dat unieke regte ontstaan as gevolg van die onderliggende fidusiêre verhouding wat tot stand kom wanneer, maar ongeag hoe, die trust opgerig word. Kortom: Die fidusiêre verhouding behoort erken te word as eie, onafhanklike bron van trustbegunstigdes se moontlike regte teen die trustee in die geval van trustbreuk. Nie net is dit `n logiese stap in die ontwikkeling van die gemenereg nie, maar sal dit ook die beskerming van trustbegunstigdes in die Suid-Afrikaanse trustreg op dieselfde voet plaas as trustbegunstigdes in die ander jurisdiksies wat nagevors is. So 'n stap sal bydra tot regsekerheid en nie tot `n wesentlike omwenteling in die Suid-Afrikaanse trustreg en -administrasie lei nie. SYNOPSIS Although the trust figure has been recognised in South Africa since the 19th century and can be characterised as a proper trust, uncertainty still prevails regarding the scope and acknowledgement of the rights of some trust beneficiaries. The main reason for this is the over-emphasis of the manner in which trusts are created, and the under-emphasis of the unique fiduciary nature of the trust once it has been established. In England, Scotland, Sri Lanka, Louisiana and Quebec where the proper trust figure is also applied, there is no possibility, contrary to the apparent legal position in South Africa, of trust beneficiaries without rights. In these jurisdictions the instrument used to create a trust plays a subordinate role and the rights of trust beneficiaries originate ex lege by virtue of the trust itself as a relationship of trust sui generis. Although South African trust law acknowledges the fiduciary nature of the relationship between trustee and trust beneficiary, the nature and extent of the rights that should emanate from this relationship are not adequately acknowledged by the courts. / Jurisprudence / L.L.D.