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Cape Town - Many owners of farms in South Africa may not aware that the subdivision of their land is not permitted without the consent of the Minister of Agriculture in terms of the Subdivision of Agricultural Land Act.
This can give rise to serious problems if a farmer wants to leave his property to more than one heir or beneficiary.
According to Ulrik Strandvik, director of property at the Cape legal firm of Gunston Attorneys, even if the benefactor did apply well in advance to the minister for consent to subdivision, it almost always takes a very long time for the beneficiaries to achieve this.
In some cases it can take more than two years and in many cases approval is not granted.
“The aim of the legislation preventing subdivision on the whole is recognised as being praiseworthy. The state does not want to see good agricultural land sacrificed to other forms of development or parcelled up to the point where the farm might struggle to survive as a smaller entity," said Strandvik.
"However it is also unreasonable to expect two or three land inheritors to forgo their right to own and possibly work on the portions that the testator would like them to have.”
What then is the solution in these circumstances?
One possible solution, said Strandvik, is to bequeath the entire property into a trust or a company which is then run by the beneficiaries working together as trustees or shareholders.
This has the big disadvantage, however, that the heirs might find it very difficult to cooperate with one another.
“The whole concept of leaving a farm to more than one heir is, therefore, fraught with difficulties and the best advice an attorney can give is to avoid doing this if that is at all possible," said Strandvik.
"If that has to be the arrangement, the testator or testatrix should consider one of the arrangements suggested or consult a legal advisor or a recognised estate planner to assist with the drafting of the will.”
This can give rise to serious problems if a farmer wants to leave his property to more than one heir or beneficiary.
According to Ulrik Strandvik, director of property at the Cape legal firm of Gunston Attorneys, even if the benefactor did apply well in advance to the minister for consent to subdivision, it almost always takes a very long time for the beneficiaries to achieve this.
In some cases it can take more than two years and in many cases approval is not granted.
“The aim of the legislation preventing subdivision on the whole is recognised as being praiseworthy. The state does not want to see good agricultural land sacrificed to other forms of development or parcelled up to the point where the farm might struggle to survive as a smaller entity," said Strandvik.
"However it is also unreasonable to expect two or three land inheritors to forgo their right to own and possibly work on the portions that the testator would like them to have.”
What then is the solution in these circumstances?
One possible solution, said Strandvik, is to bequeath the entire property into a trust or a company which is then run by the beneficiaries working together as trustees or shareholders.
This has the big disadvantage, however, that the heirs might find it very difficult to cooperate with one another.
“The whole concept of leaving a farm to more than one heir is, therefore, fraught with difficulties and the best advice an attorney can give is to avoid doing this if that is at all possible," said Strandvik.
"If that has to be the arrangement, the testator or testatrix should consider one of the arrangements suggested or consult a legal advisor or a recognised estate planner to assist with the drafting of the will.”
