Die aanwending van vruggebruik by boedelbeplanning

Abstract

Usufruct is the oldest and most comprehensive personal servitude and this study briefly analyses the historical development of the usufruct, isolating the founding principles. A clear distinction is to be drawn between the true and quasi-usufruct. A quasi-usufruct vests over consumables and the holder of such a right is required to furnish security. It is argued that a court should have a discretion to exempt the quasi-usufructary from the obligation of security in certain circumstances. The usufruct affords the holder thereof certain rights, but also creates some obligations which the usufructary has to comply with. These rights and obligations as well as the objects of the usufruct is discussed in some detail with reference to the existing common and statutory law. Special reference is made to the legal nature of the right of usufruct, the differences amongst usufruct, fideicommissum and modus, the non-transferability of such rights and the confusion which has occurred between the terms "personal right" and "personal servitude" . A few further aspects regarding usufruct which may be important from an estate planning point of view are also examined such as the position when the usufruct remains unregistered, insolvency of bare dominium owner, insolvency of the usufructary and transfer duty and donations tax implications. Usufruct is an extremely useful estate planning tool and its intelligent application can lead to substantial savings in estate duty, transfer duty and transfer costs. In conclusion these savings are illustrated by way of two case studies