Boedelbeplanning vir die Hindoevrou in Suid-Afrikaanse konteks

Abstract

The South African population consists of various cultural and religious groups. Some of the religious minority groups, for example the Hindu's, have their own non-governmental law systems whereby they live daily in the private sphere. South African law does not recognise these religious law systems. The legal position is that marriages conducted according to these religious law systems are invalid. The Durban High Court, earlier this year, held in Singh v Ramparsad that parties married under religious law systems cannot obtain a divorce under South African law. The fact that South African law does not recognise religious marriages poses serious disadvantages to the Hindu wife. A Hindu wife, for example, cannot force her "husband" to support her or to buy household necessities during the existence of their "marriage". The Hindu wife cannot divorce her husband and is therefore further disadvantaged, since she cannot share in the growth of his estate. In such a case the court will also not grant a support and maintenance order in her favour. Due to the fact that the Hindu wife is not recognised as a "spouse" by various legislation she will be further disadvantaged as she cannot inherit from her husband's estate should he come to die. Legislation recognising the Hindu wife as a "spouse" does exist. This legislation makes certain estate planning instruments available to the Hindu wife. However, there are a few instances where the Hindu wife will be disadvantaged due to the fact that she is recognised as a "spouse". Inter vivos and mortis causa estate planning instruments are implemented to prevent any shortfalls in the Hindu wife's estate. Inter vivos estate planning instruments, like investments, insurance, inter vivos trusts, agreements, universal partnerships, agencies and enrichment actions can also be implemented. Tax planning is also necessary. The estate planner, while doing the estate planning for the Hindu wife, must also give attention to mortis causa estate planning instruments to ensure that her assets will dissolve on her beneficiaries in the most effective way and according to her wishes. It is very important that the Hindu wife give careful consideration to the provisions of her will. The will can also be combined and implemented with other estate planning instruments, like for example the mortis causa trust. The Hindu wife can take out life insurance in case that there is going to be a shortfall of cash in her estate or if she wants to bequeath legates to specific persons. The Hindu wife can make use of different estate planning structures in her estate plan if she makes use of usufruct. Massing of estates is not recommended, except where the Hindu couple are co-owners of non-dividable assets. Due to the benefits that the estate planning instruments, like trusts, offer, iideicommissums are not recommended. The fact that the Hindu wife is recognised as a "spouse" plays an important role in tax planning. The estate planner will have to pay attention to the estate duty- and capital gains tax benefits due to the fact that Hindu wife will be regarded as a "spouse". It is important that the planning of the estate does not take place in isolation and that all the above-mentioned estate planning instruments be regarded as a whole. The estate plan must be updated and revised once a year. The estate planner must keep in mind that each person is unique. It is impossible to prescribe a set recipe for estate planning. The estate planner will have to take the background and circumstances of the Hindu wife into consideration when planning her estate.