Two recent tax cases have highlighted the need for clients to have

their wills reviewed by their attorneys periodically.

In the past, in what was in effect an advance on an inheritance and

an attempt to reduce the estate duty payable on their death,

individuals advanced monies to their heirs on loan or sold assets

on loan, and then proceeded to waive payment of the loan

in their will. Alternatively, testators or testatrixes sold assets

to their family trust on loan and then proceeded to bequeath their

loan accounts owed by the trust to the trust. Unfortunately,

the favourable consequences of doing so changed with the

introduction of Capital Gains Tax (CGT) with effect from

1 October 2001.

In terms of paragraph 12(5) of the Eighth Schedule to the

Income Tax Act, CGT is triggered when a creditor reduces or

waives payment of a debt for no consideration, or for a consideration

which is less than the face value of the debt which has been reduced

or discharged. As a result, a deemed capital gain is created in the

hands of the debtor.

In the first of the two tax cases, ITC 1793, the testatrix had sold

shares to a family trust on loan and subsequently bequeathed the

aforesaid debt to the trust. The court held that the situation through

which set-off could occur was created by an act on the part of the

testatrix, and that it was the drawing of the will which rendered

the result of the set-off taxable in the hands of the debtor.

The court further held that paragraph 11(1) of the Eighth Schedule

expressly included any operation of law which resulted in the

extinction of an asset, and the estate's asset was extinguished by

the operation of law, namely the set-off. Accordingly, the testatrix's

provision in her will discharging the trust's debt constituted a

deemed disposal in terms of paragraph 12(5) of the Eighth Schedule

and hence CGT was payable by the trust on the amount of the

discharged debt.

In the second case, ITC 1835, the appellant, an inter vivos trust,

was the sole heir of the residue of the estate of the testatrix.

At the time of the testatrix's death, the appellant was indebted

to the testatrix on a loan account which fell into the residue of the

estate. The executor in the estate did not demand and/or receive

payment of the claim, but rather reflected same as a claim awarded

to the appellant as sole heir to the residue in the liquidation and

distribution account.

The judge found that the circumstances were different from those

in the first case. It was held that it was not the intention of the

testatrix to specially bequeath the claim (ie. her loan account)

to the appellant, and thus the claim of the testatrix under her

loan account formed part of the residue of the estate, and that it

was not her intention to dispose of this claim in favour of the

appellant for no consideration as contemplated in paragraph 12(5)

of the Eighth Schedule to the Act. It was further held to be relevant

that the trust was at all times financially able and in a liquid

position to repay the loan had the testatrix demanded payment

before her death. It was also found by the court that it is not

how the executor deals with the estate (in this case he had awarded

the loan account to the trust) but what the creditor intended

when disposing of the debt, that is relevant.

The question then is how to draft your will so as not to fall foul

of paragraph 12

At this stage, until the issue is further clarified by further cases or

amendments to existing legislation, several options appear to be


1. Leave the residue of the estate to the creditor as sole heir.

2. The claim could be rolled over to the surviving spouse

(if relevant), and be bequeathed to him or her.

3. Leave the claim to a third party and bequeath a cash amount to

the debtor so that he or she can repay same.

4. Quantify the loan and leave a specified amount to the debtor, 

but preferably not the exact same amount of the loan. Ideally, 

the executor should call up the loan, and once same has been 

repaid, then distribute the legacy.

As always, it remains essential to consider your will every few years,

and especially every time a life changing event such as marriage,

birth of a child, or a change in financial circumstances occurs.

What the cases especially emphasise, however, is the importance of

regularly having your will reviewed by your attorney to ensure that

any recent changes in the law are taken into account.

Fiona McKend