Candice Robberts is a Senior Associate in STBB’s Corporate and Commercial department. She specialises in:

  • Private Equity transactions, including: mergers and acquisitions, corporate restructuring and Broad Based Black Economic Empowerment transactions
  • Hotel and Leisure transactions including: hotel management, franchise, license and rental pool transactions
  • Information Communication Technology transactions; and
  • General commercial transactions.

Thought of the Week | Fiduciary Rights and immovable property: What you need to know

For many people, drafting their Will is often a somewhat overwhelming experience. It can even become daunting where various challenges must be addressed. Imagine, for example, that you have married for a second time and there are children from one or both marriages and the relationship amongst the families is not especially amicable.

You wish to provide for your new spouse and all your children on your death. However, and as we often encounter, your most valuable asset is the immovable property where you and your spouse reside. How do you ensure that your spouse has a home whilst also providing for all the children to inherit at the same time? Determining in your will that the spouse and children should be co-owners is only wise if there is a particularly sound and strong relationship between such heirs.

Are there other options? One solution can be to use a fideicommissum. This Latin word refers to the legal structure by which, in this context, the testator (as the property owner) bequeaths his property to another person (the spouse), subject to it being transferred from that person to yet another person at a later stage (ie, to the children when the spouse passes away). The fideicommissum is recorded as a condition in the title deed when the property is transferred to the spouse.

The fideicommissum can be drafted to provide for various instances. For example, it can be stipulated in your Will that your spouse will enjoy this fiduciary right until he or she passes away, remarries or permanently vacates the property. This means that your spouse would own the property but upon the happening of either of the aforesaid events, his or her fiduciary right would terminate and in this event, the property would devolve upon your children.

If your spouse however wishes to vacate the property because (for example) it has become too big for him or her to manage as time goes on, you could state that in this event, your property must be sold and your spouse could using the net proceeds, purchase a smaller property. The same conditions would have to apply to this smaller property. Lastly, you could state that any remaining proceeds would devolve upon your children.

Contact STBB for assistance should you wish to implement such a fiduciary provision in your will or for advice on other ways to best provide for your loved ones.

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