Allen West Conveyancing Update

The term adiation is a term adopted from the Roman law signifying the acceptance of an inheritance by an heir. The heir is not bound to accept an inheritance, but must make a decision as to whether it will be accepted or not.

Over the years there has been much debate regarding the correct date to be used as the date of acquisition in these cases, more specifically on transfer duty receipts. This is because, in practice, when an inheritance is accepted there is usually no physical evidence of a separate adiation event, unless the heir repudiates the inheritance and it is subsequently accepted by another person in writing, or in the case of a massed estate where adiation is mandatory.

 The date of death is therefore usually used as the date of acquisition.

Facts:

Mrs D dies on 4 July 2018 and her estate is dealt with in accordance with her Last Will and Testament dated 2 February 2017. Mrs D leaves her house to her son Mr A and the contents of the house to her daughter Ms B. Mr A is not in the country at the time, but when the executor of the estate manages to contact him, he advises that he does not want the house, but that he would prefer for his sister Ms B to take transfer. Mr A will instead benefit from the proceeds of the sale of the contents of the house which are of almost equal value to the property. Mr A therefore repudiates the inheritance on 7 March 2019 and Ms B accepts the house in a swop with her brother on the following day. A redistribution agreement is therefore concluded on 10 June 2019, and the estate is eventually wound up on the same day.

What is the date of acquisition?

Although it could be argued that Ms B only acquires the right to receive transfer of the property when she adiates or when the redistribution agreement is recorded in writing, for practical purposes the Registrar of Deeds accepts that the date of death (4 July 2018) will be the date of acquisition (see in this regard RCR 27 of 2012 as confirmed by RCR 16 of 2013)

 This is despite the fact that the inheritance was initially repudiated by Mr A.

Should you require more information in this regard, kindly contact me.

Allen West
TONKIN CLACEY PRETORIA 
012 346 1278

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