Le Roux and Another v Ontvanger van Inkomste and Another (6800/08) [2009] ZAFSHC 27 (12 March 2009)

Le Roux and Another v Ontvanger van Inkomste and Another (6800/08) [2009] ZAFSHC 27 (12 March 2009)

The court found that the applicant was not made aware of the material tax consequences of his election under the joint will, specifically the donations tax liability. The applicant's ignorance was excusable, as neither he nor his advisor Smith knew of the implications, and the Master required a certificate of understanding that could not be provided. The court held that fairness and equity demand that the applicant be permitted to revoke his election, as he acted without full knowledge of the legal and financial consequences. The respondent's argument that the applicant is bound by his advisor's knowledge was rejected, especially since even the respondent's counsel was unaware of the...

Citation
[2009] ZAFSHC 27
Parties
Applicant: Jacobus Stefanus Vogel Le Roux; Applicant: Jacobus Stefanus Vogel Le Roux N.O.; Respondent: Die Ontvanger van Inkomste; Respondent: Die Meester van die Hooggeregshof
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 March 2009
Case Number
6800/08
Procedural Posture
Review Application / Application for Relief From Binding Effect of Election (adiasie) in Joint Will
Outcome
Application granted; applicant permitted to revoke his election under the joint will.
Judges
C.B. Cillié
Legal Topics
Irrevocability of Election, Excusable Ignorance, Joint Wills, Donations Tax, Administration of Estates
Civil Procedure Tax Law Family and Children Irrevocability of Election Excusable Ignorance Joint Wills Donations Tax Administration of Estates

Case Brief

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Parties

Jacobus Stefanus Vogel Le Roux

Applicant

Jacobus Stefanus Vogel Le Roux N.O.

Applicant

Die Ontvanger van Inkomste

Respondent

Die Meester van die Hooggeregshof

Respondent

Procedural Posture

Review Application / Application for Relief From Binding Effect of Election (adiasie) in Joint Will

Legal Issues

  1. 1 Whether a surviving spouse who has elected to accept benefits under a joint will (adiasie) may later revoke that election due to excusable ignorance of material tax consequences.
  2. 2 Whether the applicant's lack of knowledge regarding donations tax liability constitutes sufficient grounds for relief from the binding effect of the election.
  3. 3 Whether the court should grant relief where the election was made without full understanding of its legal and financial implications.

Ratio Decidendi

The court found that the applicant was not made aware of the material tax consequences of his election under the joint will, specifically the donations tax liability. The applicant's ignorance was excusable, as neither he nor his advisor Smith knew of the implications, and the Master required a certificate of understanding that could not be provided. The court held that fairness and equity demand that the applicant be permitted to revoke his election, as he acted without full knowledge of the legal and financial consequences. The respondent's argument that the applicant is bound by his advisor's knowledge was rejected, especially since even the respondent's counsel was unaware of the...

Court Disposition

Application granted; applicant permitted to revoke his election under the joint will.

Orders

  • Prayers 1 and 2 of the Notice of Motion are granted.
  • The costs of the application are payable from the deceased estate as if it were an unopposed application.