Page 17 - Nexia SAB&T Estate Planning Guide 2024

n Where agricultural property is bequeathed, the testator needs to be aware of
Section 3 of the Subdivision of Agricultural Land Act (no.70 of 1970), 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
n A minor child is a person under the age of 18 years of age.
n 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.
n 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.
n 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.
n These kinds of trusts are known as Special Trusts (Type B) and are dealt with
leniently from a tax perspective.
n 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).
n The nominee guardian would have to agree to the appointment, and it would
have to be confirmed by the court (taking into account the best interests of
the child).
n A guardian nominated in a Last Will and Testament may have to provide
security to the Master of the High Court to ensure that should they administer
the property negligently or fraudulently, the minor child will not suffer. The
Master will have recourse so as to the security to reimburse the minor child
for any losses. A Last Will and Testament may specifically provide that the
nominated guardian is exempt from having to provide security.

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