Boedelsamesmelting as instrument by boedelbeplanning

Abstract

This study embarks on a basic analysis of the testamentary massing of estates as an estate planning tool and the implementation of massing as a possible "estate pegging"- mechanism for purposes of avoiding or minimalising liability for estate duty. The decision of the Income Tax Special Court in ITC 1387, 46 SATC, which seemingly casts substantial doubt on the merits of massing as an effective estate planning instrument, is analysed and evaluated. It is respectfully submitted that the submissions of the respective parties led the court to findings regarding massing and adiation which may be open to censure. It is submitted that, notwithstanding the adverse effect the decision in question may have in particular instances of massing, massing may still serve a useful purpose if appropriately applied within certain parameters and with due regard to the circumstances in each individual case. At this juncture, two separate stages in the process of the testamentary planning of estates where massing is employed as an estate planning tool is identified, namely the drafting stage and the evaluation stage. It is suggested that the will should provide for appropriate alternatives to massing in order to afford the survivor the opportunity of evaluating and considering various options when called upon to exercise an election at the death of the first-dying.