| Summary: | There are real uncertainty about the interpretation of section 3(3)(a)(1A) of the
Estate Duty Act when the buy-and-sell agreement comes to mind. The
uncertainty started with the definition of "person" in the Estate Duty Act,
because the trust was not so commonly used at the time when the act came
into force. Unfortunately the trust doesn't fall under the definition of "person"
and therefore cannot qualify for the estate duty benefit.
The big question arises whether the insured life can qualify for the estate duty
benefit if the interest of the company is situated in 'n inter vivos trust.
According to Magnum Financial Holdings (Pty) Ltd) (in Liquidation) v
Summerly and Another NNO 1984 1 SA 160 (W) the court decided that the
trust should be recognised as a "debtor" for all practical purposes. The
trustees are authorised to conclude transactions on behalf of the trust. That
means that the trust are managed by the trustees and that the trust cannot
exist without the trustees. The trustees have a key-person position in the
trust.
My conclusion is that for the sake of section 3(3)(a)(1A) of the Estate Duty Act
the inter vivos trust should be recognised as a person. In that case all the
requirements of the section will be satisfied, and if the insured life was a trustee
of the trust, he/she should enjoy the estate duty benefit.
There are two solutions to the problem we face. Either the definition of "trust"
or "person" should be amended in the Estate Duty Act. The definition of
"trust" should include a trust as a person and the definition of "person" should
include a person as a trust. That way the trust and section 3(3)(a)(1A) of the
Estate Duty Act can be reconciled. === Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2006.
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