Black Tax: The Gift You That You Could Inadvertently Revoke

By: Nokuzola Cossie

A dinner conversation recently turned to the existence and implications of the various permutations of Black Tax. The sentiment around the table was that the Black Tax that was levied on the company present was the benevolent kind, the choice one makes to be the benefactor to a parent, a sibling or to a distant family member, whether continuous or intermittent. The reasons for giving varied, whether the individual was a beneficiary of Black Tax themselves and felt the need to send the proverbial “elevator back down”, or whether it was their means of thanking a parent who had sacrificed to provide them with a “seat at the table” or just a simple sense of responsibility- “if not me then who”. I posed the question to the group as to whether any of them had made provision for the Black Tax they were each paying in their Wills?

What would the implications be of such an omission from one’s Will? By illustration, Aphiwe is married to Thabo and together they have three minor children. She is an only child and has one surviving parent, namely Sanele, who is a retired nurse. Aphiwe pays for the bond on her mother’s primary residence, her mother’s medical aid and also contributes towards her monthly expenses. Aphiwe and Thabo die simultaneously in a car accident. Her Will makes provision that failing Thabo, her estate shall devolve on her children in equal shares, subject to any benefit due to a minor being held in trust until he or she attains the age of eighteen. The effect is that Sanele may struggle to meet some of her financial obligations. Despite Aphiwe’s intentions having been to take care of her mother, her failure to make provision for her mother’s maintenance in her Will, has the effect of inadvertently revoking the gift that she wished to bestow on her. The aforementioned is just one possible scenario, Aphiwe could be contributing towards a sister or distant relative’s university fees, medical aid or maintenance. It is important to note that should Aphiwe not have executed a Will she would have died intestate and her heirs determined by legislation known as the Intestate Succession Act 81 of 1987 (“the Act”). In terms of the Act, Sanele would not qualify as an heir as Aphiwe is survived by her children.

The fiction of Aphiwe’s story could be the reality for many South Africans. It further places the emphasis that your Black Tax is an element that should thus be considered in any discussion relating to your estate planning (which includes the structuring of your Will), to ensure that the gift you bestowed on your loved one(s) during your lifetime, is not inadvertently revoked at your death, as a consequence of a failure to plan correctly.

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