Buy-and-sell agreements. Protecting your business interests.
Francois le Clus • July 1, 2024
Buy-and-sell agreements. Protecting your business interests.
If you’re running a business with partners, having a buy-and-sell agreement in place is crucial.
But why, you may ask? The answer is pretty straightforward.
Here’s the deal: When you pass away, your shares in the company become part of your estate or transfer to your business partner as per your shareholder’s agreement. If there’s no clear plan in place, those shares end up in your estate, to be distributed according to your will.
Enter the buy-and-sell agreement – your solution to these issues. This agreement is backed by life insurance policies on each partner’s life, ensuring enough cash to cover the purchase price. Simultaneously, the agreement establishes the obligation to sell the deceased partner’s shares and the obligation for the surviving partner to buy them.
Now, let’s talk about the risks:
- Insufficient cash: The remaining owners might not have enough cash to buy the deceased partner’s business interests.
- Uncertain fair price: Heirs might not be guaranteed a fair price for the business interests, potentially leading to a forced sale.
- Ownership complications: The remaining owners might face unclear ownership, dealing with heirs or delays in estate settlement.
- Business capital drain: Funding the purchase could drain the business’s capital, jeopardizing its continuity.
On the flip side, the benefits are significant:
- Business continuity: The business keeps going without outside interference.
- Smooth transition: Funds are available for a timely conclusion of the transaction.
For dependents or beneficiaries, the advantages are:
- Inherited capital: They receive a capital amount instead of dealing with a business they may not know.
- Financial security: The received capital can replace lost income and contribute to overall estate planning.
Now, let’s consider the importance of a shareholder’s agreement:
This agreement, entered into during the partners’ lifetimes, governs their relationship and outlines what happens to shares in the event of death or retirement. Without it, shares become part of the deceased partner’s estate.
And remember, getting the structure right is essential to qualifying for estate duty exemption. The Estate Duty Act provides exemptions if specific conditions are met.
In conclusion, a buy-and-sell agreement is vital for protecting interests and ensuring the intended transaction occurs. Without it, disputes can end in costly and time-consuming court battles, benefiting no one, especially not the deceased owner’s beneficiaries.
Suid-Afrika se Protea F-Ope-span het homself as die beste ter wêreld bewys deur die VSA met 18 punte te klop en die F-Ope-spanwêreldtitel (die Farquharson-beker) te verower. Die sewende F-Klas-wêreldkampioenskap is van 10 tot 16 Augustus by die National Shooting Centre in Bisley, Engeland, gehou, met meer as 220 skuts van meer as 19 lande wat aan die individuele kompetisie deelgeneem het en tien nasionale spanne wat om die spantitel meegeding het. Dit was 'n besondere prestasie: die VSA word as een van die sterkste F-Ope-lande ter wêreld beskou, met 'n groot poel skuts en uitstekende toerusting, en het reeds die wêreldtitels van 2017 en 2023 gewen — albei kere met slegs vyf punte. Spankaptein Jan Swanepoel het gesê die 18-punt-oorwinning dié keer wys hoe goed die Suid-Afrikaanse span dwarsdeur die wedstryd gevaar het. Die span, bestaande uit 12 skuts, twee windafrigters, 'n kaptein en 'n bestuurder, het op die eerste dag reeds 'n sterk indruk gemaak deur op 800 m en 900 m uitstekend te skiet ondanks moeilike windtoestande — 'n prestasie wat die span 'n 25-punt voorsprong op dag een besorg het. Volgens Swanepoel was dit nie een spesifieke skoot wat die titel verseker het nie, maar eerder die somtotaal van baie goeie besluite, konsekwente skietwerk en spanwerk oor die hele kampioenskap. Onder die skuts wat namens Suid-Afrika gekompeteer het, was Werner Prinsloo — 'n kliënt van Bovest.
Most divorcing couples fight over the house, the cars, or who gets the dog. Retirement savings barely get a mention until months later, when someone asks their adviser what actually happens to their pension fund now that they're divorced. By then, the assumptions they were working from are usually wrong. What happens to your retirement investments in a divorce comes down to two things: how you're married, and what stage your investment is in. Start with the marriage. If you're married in community of property, everything you and your spouse own falls into one joint estate, including retirement savings built up during the marriage. That estate gets divided when the marriage ends, and your spouse has a claim on your pension interest. If you're married out of community of property with accrual, your estates stay separate, but the spouse whose estate grew the most during the marriage owes the other spouse a claim equal to half the difference, and retirement fund growth counts towards that number. If you're married out of community of property without accrual, your estates stay entirely separate, and so does your pension. Your spouse has no automatic claim on it at all. So the contract you signed years ago quietly decides how your retirement savings get treated on the way out. Now the second question: is your investment still growing, or already paying you an income? Pension funds, provident funds, preservation funds, and retirement annuities that are still accumulating are all treated the same way under the law. Section 37D of the Pension Funds Act allows a portion of that fund, the pension interest, to be paid out to the non-member spouse immediately on divorce, without waiting for the member to retire or resign. That's the clean-break principle, and it's been law since 2007. The non-member spouse can take their share in cash, which is taxed in their hands, or transfer it into their own retirement fund and keep the tax benefit intact. If you belong to the Government Employees Pension Fund, the same clean-break idea applies, but the mechanics differ because the GEPF isn't regulated by the Pension Funds Act; it runs under its own legislation. Since 2011, the GEPF has paid a portion to the non-member spouse in much the same way private funds do. Where it differs is how the fund recovers that amount from you afterwards. Instead of creating a debt that you had to repay with interest, as it once did, the GEPF now reduces your years of pensionable service to reflect what was already paid out. That quietly lowers your eventual benefit, so it's worth building into your retirement planning rather than discovering it later. Living annuities work differently again. By the time you're in one, you've already retired, and the capital technically belongs to the insurer, not you. What you hold is a contractual right to draw an income from it for the rest of your life. That means a living annuity doesn't count as pension interest, and an ex-spouse can't simply claim a slice of it the way they could with a pension fund. But the right to keep receiving that income is still worth something, and the courts have found ways to bring that value into account. Read our previous article on this here: https://www.bovest.co.za/living-annuities-and-divorce Here's a case worth knowing about, because it shows how a badly worded divorce order can leave someone chasing their ex-spouse personally for money that should have come straight from the fund. Mrs Swemmer's divorce order stated that she was entitled to the “full proceeds” of her husband's retirement annuities, held with Old Mutual and Sanlam. When she tried to claim, both insurers refused to pay out the full amount. She took them to court, and in 2004 the Supreme Court of Appeal sided with the insurers. The Divorce Act, the court explained, only deems a specific, narrowly defined slice of a retirement fund — the “pension interest”, roughly what the member would have received had they resigned on the date of divorce — to be an asset that can be assigned to a non-member spouse. Anything beyond that isn't binding on the fund, no matter what the divorce order says, because the Pension Funds Act specifically prevents a member's benefit from being ceded or transferred outside that narrow exception. The lesson: a divorce settlement is only as good as the wording used in it. If the order doesn't track the statutory definition precisely, the fund is entitled to refuse payment, and you're left pursuing your ex-spouse personally for a shortfall that should never have existed. A few things worth doing if this applies to you: Get retirement fund statements and living annuity valuations to your adviser and attorney early, not once the settlement is already being drafted. Make sure the divorce order's wording tracks the statutory definition of pension interest exactly. Funds won't act on anything less precise. Update your beneficiary nominations the moment the decree is final. Divorce doesn't automatically remove an ex-spouse from a nomination form. This is general information, not advice tailored to your specific situation. Ruvan J Grobler FSA® (PGDip Financial Planning)
