Page 17 - Bespoke EPG 2017 Digital

■■ A fixed property bequeathed to a number of heirs in equal shares, may give
rise to impracticalities due to the indivisibility of the bequest. This may result
in a redistribution agreement being drawn up between the heirs.

■■ There may be specific provisions in an estate planner’s antenuptial contract
in regard to fixed property, which may override the estate planner’s wishes in
terms of the Will.

■■ Where agricultural property is bequeathed, the testator needs to be aware
of Section 3 of the Subdivision of Agricultural Land Act, which prevents the
subdivision of agricultural land, and such land being registered in undivided
shares in more than one person’s name. This is especially relevant when
the testator is considering bequeathing agricultural land to more than one
beneficiary.

Protection of minor beneficiaries

■■ A minor child is a person under the age of 18 years of age.

■■ Should an estate planner die intestate or should he have not created a
testamentary trust in his Will, any funds bequeathed to a minor child will
be held by the Guardian’s Fund, which falls under the administration of the
Master of the High Court. These funds are not freely accessible, and are
usually invested at below market interest rates.

■■ It is advisable to create a testamentary trust in the Will to provide for minor
beneficiaries, so as to prevent any bequests to a minor being dealt with by
the Guardian’s Fund.

■■ The testamentary trust will specify the duties of the trustees, and provide
them with discretion as to the investment of funds, how and when to allocate
monies for maintenance and education from trust income, and when the
capital trust funds should be paid out to the beneficiaries.

■■ These kinds of trusts are known as “special trusts” and are dealt with
leniently from an income tax perspective.

■■ Providing for guardianship and custody of minor child(ren) is also important.
This is particularly relevant in the event of simultaneous death of the testator
and his spouse, or in the case of single parents, or those with sole custody
(per a divorce decree).

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