De Ferm and Others v Hans Heinrich Ferdinand Otto Von Lieres und Wilkau N.O. and Others (10805/2023) [2023] ZAWCHC 250 (11 October 2023)

De Ferm and Others v Hans Heinrich Ferdinand Otto Von Lieres und Wilkau N.O. and Others (10805/2023) [2023] ZAWCHC 250 (11 October 2023)

The court held that South African law does not permit the enforcement of foreign tax claims against a local estate or legatee, and that the applicants and the foreign tax authority are not creditors of the estate. The executor's duties are governed by local law and the will, and only creditors reflected in the liquidation and distribution account may be paid. No double taxation agreement exists covering inheritance tax with the relevant foreign country, and the applicants lack standing to advance claims on behalf of the foreign tax authority. The applicants have not paid or committed to pay the tax, rendering any claim for reimbursement incomplete and speculative. The will does not...

Citation
[2023] ZAWCHC 250
Parties
Applicant: Alex De Ferm; Applicant: Maria De Ferm; Applicant: Anna De Ferm; Applicant: Lucia De Ferm; Respondent: Hans Heinrich Ferdinand Otto Von Lieres und Wilkau N.O.; Respondent: Dean Williams; Respondent: Dirk Couturier N.O.; Respondent: Master of the High Court (Cape Town); Respondent: Von Lieres, Cooper & Barlow Attorneys
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 October 2023
Case Number
10805/2023
Procedural Posture
Urgent Application / Opposed Urgent Application for Interim and Final Relief
Outcome
Application dismissed with costs.
Judges
Wille
Legal Topics
Administration of Estates Act, Estate Duty Act, Urgent Interdict, Foreign Tax Enforcement, Succession, Specific Bequest
Civil Procedure Land and Property Administration of Estates Act Estate Duty Act Urgent Interdict Foreign Tax Enforcement Succession Specific Bequest

Case Brief

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Parties

Alex De Ferm

Applicant

Maria De Ferm

Applicant

Anna De Ferm

Applicant

Lucia De Ferm

Applicant

Hans Heinrich Ferdinand Otto Von Lieres und Wilkau N.O.

Respondent

Dean Williams

Respondent

Dirk Couturier N.O.

Respondent

Master of the High Court (Cape Town)

Respondent

Von Lieres, Cooper & Barlow Attorneys

Respondent

Procedural Posture

Urgent Application / Opposed Urgent Application for Interim and Final Relief

Legal Issues

  1. 1 Whether the executor of a South African estate can be ordered to pay foreign inheritance tax from estate proceeds to a foreign tax authority.
  2. 2 Whether the applicants have standing to seek such relief on behalf of a foreign tax authority.
  3. 3 Whether South African law or any treaty permits enforcement of foreign tax claims against a local estate or legatee.

Ratio Decidendi

The court held that South African law does not permit the enforcement of foreign tax claims against a local estate or legatee, and that the applicants and the foreign tax authority are not creditors of the estate. The executor's duties are governed by local law and the will, and only creditors reflected in the liquidation and distribution account may be paid. No double taxation agreement exists covering inheritance tax with the relevant foreign country, and the applicants lack standing to advance claims on behalf of the foreign tax authority. The applicants have not paid or committed to pay the tax, rendering any claim for reimbursement incomplete and speculative. The will does not...

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants (jointly and severally, the one paying the others to be absolved) shall be liable for the costs of the application, including the costs of the application for urgent interim relief, on the scale as between party and party (inclusive of the costs of senior counsel where so employed) as taxed or agreed.