The Estate Administration Act is the main act when it comes to the administration of a deceased estate. With the constant change in modern society, it is imperative to change the antiquated and nondescript definition of "property" in the Death Probate Act.
Background
Even though retirement annuity falls within the scope of the Pension Funds Act,15 it can be debated that the retirement annuity is a contingent interest; therefore, according to the definition provided in the Estates Act, retirement annuity falls within the estate. 22 Section 51(1) of the Estates Act refers to every executor who is entitled to remuneration as prescribed in the will or a remuneration must be assessed according to the prescribed rate.
Motivation
The Estates Act defines "immovable property" separately and therefore will not form part of this thesis.
Research question
26 Section 1 of the Law on Administration of Estates defines "immovable property" as land and any real right in land or minerals. As stated above, the Law on the Administration of Estates regulates the process of administration of the estate of a deceased person. 358 Article 14 of the Law on Property Administration; See also Meyerowitz's Administration of Estates and Their Taxation 12-24.
This part of the study found that the Law on Property Administration contains a definition of immovable property and an insufficient definition of "property". The occurrence of the word "property" throughout the Administration of Estates Act was then pointed out. Based on the above definition of "property", it is clear that section 3(2) of the EDA defines.
Research method
Framework of the study
Introduction
The Estate Administration Act prescribes the procedure to be followed in order to administer an estate.33 As previously mentioned34 section 1 of the Estates Act defines "property" as "any conditional interest in property". 28 The Inheritance Act includes, among other things the rules on the management of a deceased estate.
Different theories of what constitutes “property”
Normative theories of justification of property
- Occupation theory
- Labour theory
As a philosopher, his work is ubiquitous in United States (US) politics; see also Erlank Property in Virtual Worlds 144. 80 Jeremy Waldron, a legal scholar and philosopher who writes largely from the opposite side of the political spectrum to Nozick; Mossoff 2002 The University of Chicago Law School Roundtable 158.
The legal concept of “property”
Anglo-American private law
In Anglo-American private law, 'property' is defined as a bundle of rights or expectations imposed on third parties.118 These rights include, among other things, the right to use and possession. The term “property” is used to refer to the rights121 related to property and the object of property is ignored.122.
Roman-Germanic tradition
Due to the essence of the property principle, it is the most detailed property right. 154 Van der Merwe Sakereg 18-19; Beker Definition of virtual property in terms of the constitutional property clause 16.
The Constitution
Van der Walt172 further emphasized that this was especially the case when the category of interests in question was recognized as property in private law. It appears that the courts will interpret the concept of property broadly enough for constitutional purposes.179 The concept of constitutional property would most likely extend much further than just physical objects.180.
Characteristics and classification of property
- Characteristics of things
- Corporality
- Impersonal nature
- Independence
- Subject to human control
- Use and value
227 Van der Walt Introduction to Property Law 18; see also Van der Merwe Sakereg 52. The concept of universality plays an important role in succession; but it has a limited role in substantive law.229.
Classification of property
Fungibles and non-fungible things
A thing can be fungible or immutable, depending on whether it can be replaced by similar things or not. However, this characteristic also depends on the intention of the parties.238 Exchangeable things are often referred to in commerce by reference to numbers, weights or measurements.239 A three-pronged plug, for example, would be an exchangeable thing, as it could. be replaced with another similar one.
Consumable and non-consumable things
The painting is valued at R3 million and is irreplaceable, as it is the original painting. The executor never took any insurance as he argued that it was only a simple painting.
Divisible and indivisible things
The Cooper case247 considered whether shares could be subject to a quasi-usufruct, and it was determined that this could only be applied if the shares were bequeathed or deliberately subject to a usufruct.
Right in or to property
Real right
- Ownership
- Limited real rights
Since the personal servitude is tied to the holder of the servitude, it cannot be transferred. 277. The holder of the right of habitat is the "responsible" person and charges the owner of the property.
Difference between a personal right and a real right
One of the main functional differences between the two rights is that it is only possible to register a right in rem in the Register of Deeds,316 while personal rights can only be registered in exceptional situations.317. Under common law, a piece of land cannot be registered if a personal right does not impose a burden.
Other like interest
- Fiduciary interest
Vested and contingent interest
In other words, if the deceased had no "vested" right to the interest, there was no interest and would not form part of their estate.340 In Wessels v De Jager,341 the court confirmed that a beneficiary does not acquire a vested right. upon the death of the testator. Jamneck350, on the other hand, is of the opinion that an insolvent person has the right to reject or reject an inheritance and that this right does not pass to the trustees.
Conclusion
However, the author has learned that it depends on the context in which the word "property" is used. Furthermore, it became clear that the recognition of "property" in private law differed from constitutional law.
Introduction
One will notice that the legislature moved property that belonged to the deceased to property that belonged to the estate. The administration process is not only about the collection of the assets, but it is about the distribution of the deceased's assets.
Administration process
In Lockhat's Estate v North British and Mercantile Insurance,355 the court held that it was the duty of the executor to obtain possession of the property owned by the deceased, including the rights of claim. 357 Letters of Execution or Power of Attorney; see also section 18(3) and section 13 of the Administration of Estates Act.
Inventory
Immovable property
However, Article 1 of the Real Estate Administration Act defines "real estate" as land and all rights in rem in land or minerals registrable in any office in the Republic. In addition, Article 9(3) of the Real Estate Administration Act stipulates that whoever conducts the inventory shall include all real estate registered in the name of the deceased.
Movable property
On the other hand, the Insolvency Act382 defines "moveable property" as any property, right and/or interest that is not immovable property. According to Meyerowitz383, chattels include all physical chattels, such as household goods, furniture, vehicles, clothing, jewelry, stocks (basically anything not classified as real property), as well as intangible chattels.384.
Claims in favour of the estate
In addition, the cash found with the deceased belongs to movable property, and the cash in the bank belongs to claims in favor of the estate, which brings us to the last part of the inventory.
Final liquidation and distribution account
Immovable property
Movables
In the event that the policy is payable to the deceased and the policy covered his life, the full proceeds from the policy will form part of the estate and will be reflected in the L&D account. The question is whether the insurance belonged to the joint estate.
Claims in favour of the estate
Impact of incorrect allocations
Marital regimes
- Civil marriage
- Married in community of property
RSA retail bonds
The executor has no control over the assets and the assets are not reflected in the L&D account, as the investment is paid directly to the beneficiaries. Interest earned after the date of death is not taxable, as the investment is not reflected in the L&D account.
Conclusion
The RSA retail bond scenario could have been avoided if the Administration of Estates Act included a proper definition of “ownership.” It is important to have a clear and understandable definition of “property” in the Inheritance Administration Act to avoid these uncertainties and misattributions.
Introduction
The above definition is broader than the definition of "property" in the Real Estate Administration Act 1965, which defines (as mentioned earlier) "property". This chapter has explored other legislation applicable to estates of deceased persons - specifically the definition of "property" in each.
Definition of “property” in the EDA
Property
- First part of the definition – “any right in or to property, movable or
- Second part of the definition – “any fiduciary, usufructuary or other
- Third part of the definition – any right to an annuity
In Chapter 3538, the author pointed out that the term "property" continues to appear throughout the Estates Administration Act. The EDA appears to contain the broadest definition of "property" as it includes and excludes property in the definition.
Definition of “asset’” in the ITA
Definition of “property” in the TDA
Land and fixtures
The first part of the definition refers to land and fixtures, which are given the status of immovable property.530 Land consists mostly of land, its geological elements, such as minerals, and everything attached to the land. Furthermore, a company operating a share block scheme has rights to the use of real estate or an interest in real estate.
Definition of “property” in the Administration of Estates Act
In essence, any real right533 in property will be considered property for the purpose of transfer duty. Under SARS, the right to use or the right to occupy fixed immovable property is subject to transfer duty.534.
Conclusion
Conclusion
In a modern society, the definition is outdated and indescribable, especially when the death certificate does not define chattels. It is clear from the above that movable property plays an important role in estate processing, and for that reason the definition should be changed to create legal certainty about what is movable property in a deceased estate.
Recommendations
Horn The Legal Effect of Rights Inherent in Sectional Freehold Property in South Africa with Reference to Selected Aspects of Australian and Dutch Law. Marneweck D The Implications of Using Personal Easements as Estate Planning Instruments (LLM Dissertation North-West University 2016).
