A person can create a usufruct in their last will and testament, specifying the terms and conditions under which the usufruct will operate after their death.
This allows the testator (the person making the will) to provide for the continued use and enjoyment of their property by a designated usufructuary while ensuring that the ownership of the property ultimately passes to a chosen beneficiary or beneficiaries.
What is a Usufruct?
The concept of usufruct originates from Roman-Dutch law and is acknowledged as a limited real right in property. It confers upon a person (referred to as the usufructuary) the privilege to utilize and enjoy another person’s property, including the right to generate income from it, without full ownership.
The property owner (known as the bare owner) maintains ownership but waives the right to use and enjoy the property during the usufruct’s duration.
Usufructs can be established by agreement between parties or by operation of law, such as through a will. They can also be established for a fixed term, for the lifetime of the usufructuary, or in some cases, in perpetuity.
Usufructs can apply to various types of property, immovable and movable assets. However, they cannot be established over property that is legally incapable of being used, such as property already subject to a usufruct or property belonging to the state.
The rights and responsibilities of the usufructuary and bare owner are dictated by law and any agreements between them. Typically, the usufructuary has the right to possess, use, and enjoy the property according to its nature and purpose, and may generate income from it, such as through leasing or rent collection.
However, the usufructuary must use the property in a way that does not diminish its value or impair the rights of the bare owner. They are typically responsible for maintaining the property and paying any taxes or expenses associated with it. Additionally, they cannot alienate or encumber the property in a manner that would prejudice the rights of the bare owner.
Usufructs can be terminated by various means, including expiration of the agreed term, fulfilment of the condition upon which it was established, merger of the usufructuary and bare ownership rights in the same person, or by agreement between the parties. Additionally, in certain circumstances, a court may order the termination of a usufruct.
Key Things to Consider When Creating a Usufruit in a Last Will and Testament
Here are some key points to consider when creating a usufruct in a last will and testament in South Africa:
1. Identification of Property:
The testator must identify the specific property over which the usufruct will apply. This could include real estate, movable assets, or any other property owned by the testator.
2. Appointment of Usufructuary:
The testator must specify who will be granted the usufructuary rights. This individual, known as the usufructuary, will have the right to use and enjoy the designated property according to the terms outlined in the will.
3. Duration of Usufruct:
The testator should specify the duration of the usufruct. This could be for a fixed term, such as a specified number of years, or for the lifetime of the usufructuary. In some cases, the usufruct may be established in perpetuity.
4. Rights and Obligations:
The will should outline the rights and obligations of both the usufructuary and the bare owner (the ultimate beneficiary of the property). This may include details regarding the use of the property, maintenance responsibilities, and any restrictions on alienation or encumbrance.
5. Succession of Ownership:
The will should specify what will happen to the property upon the termination of the usufruct. Typically, ownership of the property will pass to a designated beneficiary or beneficiaries, who will become the new bare owners.
6. Legal Requirements:
The creation of a usufruct in a last will and testament must comply with the legal requirements for wills in South Africa. This includes ensuring that the will is properly executed, signed by the testator and witnesses, and meets any other formalities prescribed by law.
7. Legal Advice:
It’s advisable for individuals considering the creation of a usufruct in their will to seek legal advice. An experienced estate planning attorney can provide guidance on the legal implications of establishing a usufruct, ensure that the terms of the will are clear and enforceable, and assist with the proper drafting and execution of the document.
Through a will, individuals in South Africa can manage posthumous property use, providing for loved ones while maintaining control over assets. Usufructs offer a flexible mechanism for property rights management, enabling benefits without full ownership, while safeguarding owner interests.
