Die regsposisie van die testamentopsteller, die insolvente erfgenaam en skuldeisers in die boedelbeplanningsomgewing

Abstract

Estate Planning is influenced by various factors, such as: * The preferences and needs of the estate owner and his relatives. * Economic realities that may force the estate owner to adopt certain measures. * Government and the legal system are influential on the estate owner's options. * Family members and friends are often involved in an estate owner's estate planning. It is against this background that the following hypothesis is considered: S marries out of community of property to G whilst she is an unrehabilitated insolvent. G drafts a will with the following clause in order to protect his property and S from her creditors: I bequeath my entire estate to my spouse on the condition that should she be an unrehabilitated insolvent at my demise, I bequeath my entire estate to my administrators in trust until such time that she is rehabilitated. G passes away while S is still an unrehabilitated insolvent. The question arises if an insolvent heir is in a position to repudiate an inheritance, as the repudiation will result therein that the inheritance will not form part of the assets in the insolvent's estate. The aim of this study is twofold. The legal position of the testator, the heir and creditors will firstly be analysed critically. Thereafter the possible measures available to a testator, which will ensure that he will be able to satisfy the needs of his heirs, will be highlighted. In order to attain the aims of the study, focus is placed on the following aspects: * Freedom of testation: Although a testator has freedom of testation, this right is not absolute. Care should therefore be taken that due consideration be given to the limitations on his freedom of testation, be it statutory or by common law. * Vesting of rights: The nature of the right acquired by an heir on the death of the testator has been the object of much debate in South African case law. The conflicting views revolve around the question whether any right is acquired and if so whether such right can only be qualified as a contingent right. It is suggested that the correct position is that an heir does require a right to an inheritance, but that the nature of the right is contingent. * Conditions and terms: The testator is able to postpone dies cedit and/or dies venit. He achieves this by imposing conditions on his bequests or by fixing terms. Conditions and terms may be suspensive or resolusive. The resolusive condition and term result therein that rights which have been acquired fall away with retrospective effect. The nudum praeceprum, as a veiled resolusive condition, has no legal force and should be avoided at all costs by the testator. * Adiation and repudiation: Although no person can be forced to accept an inheritance, it is trite law that adiation is automatic unless the bequest is subject to a modus. Furthermore it is also accepted that adiation is not a prerequisite for the vesting of rights. * Legislation and case law: The relevant provisions of the Insolvency Act 24 of 1936 are sections 2, 20 and 26. Section 2 defines property as, inter alia, contingent interests in property, with the exclusion of the contingent interests of fideicommissary heir or legatee. Furthermore disposition is defined inter alia as an abandonment of rights to property. The effect of section 20 is that an insolvent is divested of his estate on the granting of a sequestration order, where after the estate will vest in the trustee. Disposition without value may be set aside on application in terms of section 26. It is submitted that the provisions of the Insolvency Act 24 of 1936 are wide enough to cover the repudiation of an inheritance by an insolvent heir. Accordingly such repudiation should therefore be a disposition without value which may be set aside. South African courts had the opportunity on numerous occasions to decide whether an inheritance falls in an insolvent's estate or not. Conflicting judgments were put to a rest by the judgment of the Supreme Court of Appeal in Wessels v De Jager 2000 4 SA 924. The court decided that an heir does not have a right to adiate or repudiate an inheritance. The heir merely exercises an ability to dispose of the inheritance and as such the provisions of the Insolvency Act 24 of 1936 have no application. The decision of the court is unsatisfactory for a number of reasons, but will stand as the law of the land until similar facts are decided but the Supreme Court of Appeal or until the legislator intervenes. The South African Law Commission in consultation with various parties have proposed a draft Insolvency Act. The proposed amendments of value for this study are that contingent interest of fideicommissary heirs and legatees will no longer be excluded from the definition of property and that the court will be endowed with a discretion to decide if an insolvent acted to the detriment of creditors. When the position of S in the hypothesis is analysed it may be concluded that the bequest is subject to a nudum praeceptum and the resolusive condition should be disregarded. In line with the decision in Wessels v De Jager 2000 SA 934 (SCA), S will be able to repudiate the inheritance. This course of action is unsatisfactory in that the aims of the testator are frustrated, S derives no benefit from her action and similarly creditors are denied the benefit of an additional asset in the insolvent estate. Alternative estate planning measures are available to the testator. The trust, be it a testamentary discretionary trust or a trust inter vivos, is preferable to a fideicommissum. The matrimonial property regime adopted by spouses before marriage can also have a positive influence on estate planning. In conclusion it is submitted that intervention by the legislator is required to attain a balance between the rights of the testator, insolvent heirs and creditors. Through estate planning-methods it will be within the power of the testator to avoid conflicting interests of the testator, the insolvent heir and creditors.