Van Zyl Retief

Will solar power increase the value of your home?

The upfront investment is high, which you’ll want to recover when you sell. Stage 6 loadshedding is now firmly in effect, many South Africans are without power for up to 12 hours each day, and the threat of Stage 8 blackouts looms large on the horizon.  It’s no wonder then that many households are turning to ‘off-grid’ power sources to keep the lights on and return to some semblance of normality. Solar power has emerged as the most popular alternative energy option due to its relatively quick installation, soundless efficiency (unlike a noisy generator), environmental benefits, and the prospect of lower future energy bills. However, the upfront costs associated with a solar installation may be prohibitive for the average middle-class homeowner with options ranging between R59 000 to R289 000, according to the pricing from solar provider Solana Energy. Luckily, the increased popularity of solar power has given rise to a variety of innovative financing options to make solar more accessible and affordable. These include: Outright purchase: Buying the system outright using one’s own funds. Financing the system through a home loan provider: Some of the major banks now offer the ability to add the cost of solar installation to one’s home loan. Rent-to-own: Various solar financing companies have popped up in recent years, offering consumers the option to pay a monthly fee for solar with the understanding that you will own the equipment after a certain period of time, usually five to seven years. A subscription service: Solar providers such as GoSolr offer a fixed-monthly subscription to solar power using their equipment.  Prices generally start at R1 580 per month. What’s also important is to take into account whether the significant initial financial investment is justified by considering the value it will add to your home in the long term. According to South African home loan experts, ooba Home Loans, solar panels can increase the value of a property by around 3 to 4%.  However, taking into account the current electricity crisis in South Africa and with no long-term solution in sight this estimate is actually rather conservative. Ability to sell the buyer long-term peace of mind: The majority of the country is still experiencing a buyer’s market, meaning that many well-priced and well-designed homes are sitting on the market for far longer than they usually would, due to an oversupply of homes. Solar power is definitely a Unique Selling Point (USP) and a way for sellers to distinguish themselves from the competition.  Homeowners are thus encouraged to make the transition now while they can afford it, as it can be a lifeline should they become financially distressed in the future and need to make a quick sale. By investing in solar power, owners are also able to market the ‘peace of mind’ that their property will offer prospective buyers, both in the short- and long term.  The buyer has the assurance that they will be able to work from home and perform daily household tasks such as cooking without interruption. Another positive selling point is the prospect of lower electricity bills and resilience against unforeseen tariff increases. Eskom was recently approved to implement an 18.65% tariff hike come April 2023, which is yet another blow to South Africans dealing with interest rate hikes and the rising cost of living.  In contrast, most solar providers’ annual price increases are in line with annual inflation, giving consumers the ability to plan and budget accordingly. Five factors to maximise your solar investment: Choose your financing option wisely: If you’re investing in solar power with the goal of adding to the value of your home, make sure that you own the equipment outright.  If you’ve opted for the ‘rent-to-own’ (and haven’t completed the contract) or solar subscription option, the new owner will have to carry the costs of the contract. Take the size of the installation into account: The more solar panels on your roof, the more electricity can be generated. Make sure that you purchase a hybrid solution: A hybrid system consists of solar panels, a smart invertor, and a battery.  The battery is what keeps your electricity running during loadshedding, using the power generated from the solar panels during non-loadshedding periods. Choose a reputable service provider: Make sure that your provider is accredited, uses the highest quality materials to increase their lifespan, and that they offer a warranty should something go wrong. Finally, remember that location is key: If your roof is constantly in shade, the solar panels will receive very little sunlight to generate electricity, making a costly installation essentially useless. Solar power has the potential to greatly increase the selling potential of your home, but all factors must be considered to maximise your return on investment including whether you can recoup the investment costs in your eventual selling price. WRITTEN BY GRANT SMEE Grant Smee is a property entrepreneur and the managing director of Only Realty Property Group. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes.

Life partners now qualify for intestate succession

The Constitutional Court recently confirmed the October 2020 ruling of the Western Cape High Court that section 1(1) of the Intestate Succession Act is unconstitutional in so far as it excludes life partners in a relationship intended to be permanent, as per the definition of “spouse”. The Court ordered parliament to amend two laws to recognise the right of a surviving life partner in any relationship to inherit and claim maintenance after the other partner dies. The case arose after Jane Bwanya challenged the constitutionality of the Intestate Succession Act and the Maintenance of Surviving Spouses Act for discriminating on the basis of marital status. Ms Bwanya, originally from Zimbabwe, and the deceased, Mr Ruch, were involved in a relationship that comprised most, if not all, characteristics of a marriage. They met and entered into a romantic relationship in 2014. Later that year Mr Ruch asked Ms Bwanya to move in with him on a permanent basis. Ms Bwanya obliged. From then onwards, they split their time between Mr Ruch’s Camps Bay and Seaways properties. Ms Bwanya retained her place at the Meadows where she was employed as a domestic worker. Ms Bwanya’s and Mr Ruch’s friends were aware of the relationship. The pair used to accompany each other to various social gatherings. Mr Ruch introduced Ms Bwanya as his wife to his friends. They often hugged and kissed in the presence of other people. Mr Ruch referred to Ms Bwanya’s brother as his brother-in-law. In November 2015 Mr Ruch proposed to marry Ms Bwanya. She accepted the proposal. Preparations to travel to Zimbabwe began so that lobola negotiations could commence and Mr Ruch could meet Ms Bwanya’s family. These preparations involved selling the Seaways property. The proceeds were to be used to pay lobola and purchase a vehicle for the trip to Zimbabwe. The plan was for the pair to get married after the trip. On 23 April 2016, two months before the scheduled journey, Mr Ruch passed away unexpectedly. In his will he had nominated his mother as the sole heir to his estate. However, his mother had predeceased him. Ms Bwanya lodged two claims against Mr Ruch’s estate in terms of the Administration of Estates Act. They were for maintenance in terms of the Maintenance of Surviving Spouses Act and for inheritance in terms of the Intestate Succession Act. She based the claims on the fact that her permanent life partnership with Mr Ruch was akin to a marriage and that they had undertaken reciprocal duties of support towards each other. The basis of the claims was the following: the deceased was her life partner, they had been living together in a permanent, stable, and intimate relationship, and they were engaged to be married. Moreover, their partnership was analogous to, or had most of the characteristics of, a marriage: the deceased supported her financially and emotionally, and introduced her to friends as his wife. Furthermore, they had undertaken reciprocal duties of support and were to start a family together. The executor of the deceased’s estate rejected both claims on the basis that the Intestate Succession Act and Maintenance of Surviving Spouses Act conferred benefits only on married couples, not partners in permanent life partnerships. The majority judgment of the Constitutional Court, penned by Madlanga J, stressed that permanent life partnerships are a legitimate family structure and are deserving of respect and, given recent developments of the common law, entitled to legal protection. The judgment held that the definition of “survivor” in section 1 of the Maintenance of Surviving Spouses Act is unconstitutional and invalid insofar as it omits the words “and includes the surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The judgment ordered that these words be read into the definition. “Spouse” and “marriage” are also declared to include a person in a permanent life partnership. The declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect. Additionally, the majority judgment confirmed the declaration of invalidity of section 1(1) of the Intestate Succession Act made by the High Court. Likewise, this declaration of invalidity was suspended for 18 months to afford Parliament an opportunity to cure the constitutional defect. The Bwanya judgment is a victory for permanent life partners, who now qualify as intestate heirs. If you wish to avoid uncertainty and prevent unintended consequences, then the best solution remains to execute a professionally drafted will and update it as and when necessary. Having a will is always extremely important. A valid will would have avoided the necessity for a court application in the case presented above. Executors should henceforth consider any claims from life partners under either of the mentioned Acts, as failure to do so could result in litigation. Reference List: Intestate Succession Act, 81 of 1987 Maintenance of Surviving Spouses Act, 27 of 1990 Bwanya v Master of the High Court, Cape Town and Others [2021] ZACC 51 https://collections.concourt.org.za This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Death during a divorce: Who takes care of the funeral?

“Family feuds, in relation to who has the right to bury a deceased person, has the potential of permanently dividing the family. These are sensitive disputes that are best suited to be mediated and resolved by family elders rather than being brought to court where there is no winner and a united family structure ends up divided and torn apart. It is a time where the family should be united more than ever, preparing to give the loved one a dignified burial, rather than airing their dirty linen in court”. Polokwane High Court Judge Maake Kganyago stated the latter when handing down her judgment in the Mabulana v Mabulana and Others (LP) (unreported case no 5040/2021, 26-7-2021) matter. The High Court dismissed Mrs Mabulana’s (the Applicant) application to interdict Gledies and Sophy Mabulana (the Respondents) from burying the Applicant’s estranged husband, Wilard Mabulana (the deceased). Gledies was the deceased’s sister-in-law and Sophy the deceased’s sister. Gledies took care of the deceased since 2013, especially while he was sick. The Applicant and deceased were married on 3 July 1996 and three children were born from their marriage. However, as the years passed, the couple realised that their marriage was on rocky waters. The deceased decided to move out of their matrimonial home in 2018 and the couple effectively separated. On 9 January 2018, the Applicant instituted divorce proceedings against the deceased on the grounds that she had no more love or affection towards the deceased. The deceased was apparently disgruntled by the pending divorce proceedings, but eventually agreed that a decree of divorce should be sought on an unopposed basis. The parties further agreed that their joint estate would be equally divided between them. During a court appearance on 30 June 2021, the parties agreed to postpone the hearing of the divorce to 28 July 2021. The reason for the postponement was that the Applicant had to obtain the assistance of an interpreter. The divorce would likely have been finalised on 30 June 2021, was it not for the postponement. On 18 July 2021, the Applicant was informed by one of her children that the deceased had passed away. The Applicant, therefore, started preparing and making arrangements for the deceased’s burial. When the Applicant approached the burial services to claim the body, she was advised that the Respondents brought the deceased to them and that they accordingly cannot assist the Applicant. This led to the Applicant instituting an application to interdict the Respondents from burying the deceased. The Applicant submitted that she had a clear right to bury the deceased as she had been married to the deceased, and the deceased’s will was silent on the issue of the person who had to prepare and arrange the deceased’s funeral. The court held that it was evident from the facts of the matter that the Applicant had lost her love, affection, and respect towards the deceased. The Applicant failed to explain how the death of the deceased had restored the lost love, affection, and respect towards the deceased when she was on the verge of divorcing him. The court pointed out that the deceased, in his will, did not give directions as to who would be responsible for arranging his burial. The deceased, however, made a separate will, despite being married in community of property with the Applicant, and in that will had disinherited the Applicant. According to the court, this was a sign that the deceased had made his position clear that he had severed ties with the Applicant. The court referred to Trollip v Du Plessis and Another where the court held that it was within the bounds of reasonableness to respect the wishes of the deceased, whether expressed in a testament or not, and if no such preference was expressed, to resort to the wishes of the heirs. During the deceased’s final days, he was in the care of the Gledies and expressed his wish that Gledies should bury him. The Applicant was not present when the deceased passed away and they have been separated from each other for a long time. In turning down the wife’s application, the judge held the wishes of the deceased had to be respected. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Deceased’s will declared invalid, despite clear wishes

The Wills Act sets out the requirements for a valid Last Will and Testament. For a will to be valid, it must be signed and witnessed. What happens if the wishes of the deceased are clear, but the document does not meet the requirements of a valid will? This was the heart of the matter in Estate Late Elaine Ilsia Williams and Others v Hendricks and Another, heard in the Western Cape High Court. In this matter, the close relations of the deceased sought an order directing the Master of the High Court to accept as a will for the purposes of the Administration of Estates Act, a pro forma document signed by the deceased in which she gave instructions to a bank to draft her Last Will and Testament. The nature of the bank document was consistent with its printed title, “Will Application/Aansoek om testament.” It is apparent from the terms of the document that the bank offers a service for the drafting of wills. The service is provided free of charge if the bank’s trustee company is nominated as the executor. The deceased’s instructions to the bank in respect of the content of the will were framed as follows: “I would like to give my full estate to my son until he is of age as well as any other monetary payouts as a result of any claims.” It would appear that the deceased also wished her will to provide that the bequest to her son should be administered in a trust until the child attained the age of 21. The will application form was completed by the deceased with the assistance of a representative of the bank on the day before she died. She was terminally ill with cancer at the time. The deceased passed away before her instructions for the drafting of a will were executed. The applicants relied on Section 2(3) of the Wills Act: “If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).” As is evident from the wording of Section 2(3) of the Wills Act, it is required of an applicant seeking an order of the sort contemplated by the provision to establish, amongst other things, that the document in question was intended by the deceased person to be his or her will. It is in that regard that the application runs into difficulty on the merits. Nothing specifically indicates that the deceased intended the document to be anything other than what it appears to be – an instruction to the bank to draft a will. The court held that there was no evidence that the deceased intended the will application to be anything other than an application for a proper will to be drafted. Therefore, the applicants failed to prove the requirement that the deceased intended the document to be her last will and testament, as required by Section 2(3) of the Wills Act. Courts are wary to declare documents that do not comply with the requirements of the Wills Act as valid wills. It is advisable to obtain professional assistance from an attorney or a fiduciary expert with the drafting of your Last Will and Testament. Reference List: Wills Act 7 of 1953 Estate Late Elaine Ilsia Williams and Others v Hendricks and Another [2021] ZAWCHC 66   This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Think twice before choosing an executor

The nomination of an executor is an important aspect of a Last Will and Testament. An executor is nominated in a Last Will and Testament and, upon death, he or she administers and distributes the estate in accordance with the testamentary wishes of the deceased. Importantly, although a person can nominate an executor, the executor is appointed by the Master of the High Court through the issuing of Letters of Executorship. The executor is responsible for, amongst other things, interpreting the Last Will and Testament, collecting information on all the assets and liabilities of the deceased, and distributing inheritances to beneficiaries in accordance with the Last Will and Testament. Although it is possible to appoint a family member as executor, it should be kept in mind that, not only is executorship an onerous and complex task, but the Master may in some cases refuse to appoint a nominated executor, or only grant Letters of Executorship if the nominated executor is assisted by a fiduciary professional or provides security, normally by way of an insurance policy, to the satisfaction of the Master. It is also important to keep in mind that, should a family member be nominated, the family member will have to make decisions about the administration of the estate during an emotionally difficult time, and it may become difficult for the family member to remain impartial and objective. In a recent case in the Western Cape High Court it was found that the executors, the daughters of the deceased, were conflicted and not in a position to exercise their fiduciary duty as executors properly. The facts in the matter of Brimble-Hannath v Hannath & Others were as follows: Hannath was married to Brimble-Hannath when he passed away. Hannath’s daughters were, in terms of his Last Will and Testament, the nominated executors of his estate and were appointed as such by the Master of the High Court. In terms of his Last Will and Testament, his surviving spouse Brimble-Hannath receives a lifelong right to inhabit and use the residence where she lived with the deceased, while the residue of his estate was bequeathed to a trust of which his daughters are trustees and beneficiaries. The Last Will and Testament did not provide any settlement on the surviving spouse to provide for her maintenance. She submitted a claim under the Maintenance of Surviving Spouses Act, amounting to more than R6m. It was not disputed that she is entitled to make a claim against the deceased estate. Hannath’s daughters, in their capacities as trustees of the trust, instituted a claim of R4m against the estate based on a loan extended by the trust to the deceased to finance the purchase of the residence in question. Brimble-Hannath brought an application for the removal of Hannath’s daughters as executors in their late father’s deceased estate. The Court emphasised the basic principle that nobody should be the judge in his/her own case and that because the executors had to take decisions about two competing claims which would influence their own interests, they were insurmountably conflicted. “I am accordingly satisfied, in the context of the applicant [Brimble-Hannath] disputing of the trust’s claim against the estate, woolly as her grounds for doing so might appear to be at this stage, that it is undesirable that the first and second respondents [Hannath’s daughters], who are the co-trustees and beneficiaries of the trust, should remain in office as executrixes of the deceased’s estate,” judge Binns-Ward found. The judge ordered the Master to appoint a substitute executor to wind up the estate. In view of this, it is advisable for you to consult your attorney or a fiduciary expert before deciding who to nominate as the executor of your estate in your Last Will and Testament. Reference list:  Brimble-Hannath v Hannath and Others (3239/2021) [2021] ZAWCHC 102 (25 May 2021) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The condictio indebiti: The excusable mistake

South African law makes provision for the fact that a person should, in principle, be entitled to institute an action for restitution where their estate was impoverished without justification. An action for unjustified enrichment may exist if a Plaintiff transferred value to the Defendant and: The Defendant was enriched; The Plaintiff was impoverished; The Defendant’s enrichment was at the expense of the Plaintiff; The enrichment was without legal cause. There are various types of enrichment actions that find application in certain sets of circumstances. These actions are, however, beyond the scope of the present article, which focuses solely on one enrichment action, namely the condictio indebiti. The condictio indebiti deals with transfers of value that was made erroneously and without a legal cause. Common examples that could possibly trigger the application of the condictio indebiti includes the following: when funds are transferred into an incorrect bank account; when funds are transferred to a bank account under the mistaken belief that the funds are due, but are in fact not; when funds are transferred to someone under the mistaken believe that there is a valid underlying contract. To rely on the condictio indebiti, the plaintiff must first prove the aforementioned requirements for an unjustified enrichment action. If the plaintiff can prove all four requirements, they must further prove that the undue transfer was made either (1) while they were labouring under an excusable mistaken belief that the transfer was in fact due (“error and excusability”); or (2) that the transfer was subject to a certain, sufficient degree of compulsion.1 (“compulsion”) Error and excusability A Plaintiff will only succeed with the condictio indebiti if they can show that the transfer was made as a result of an “excusable” mistake. It is clear from case law that not every mistake is excusable. If a Plaintiff made a mistake that is grossly negligent or inexcusable slack, for example, it is most improbable that such a mistake would be accepted as an excusable one. In Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue & Another, the court held the following, in relation to whether a mistake is “excusable”. “Much will depend on the relationship between the parties; on the conduct of the Defendant who may or may not have been aware that there was no debitum and whose conduct may or may not have contributed to the Plaintiff’s decision to pay; and on the Plaintiff’s state of mind and the culpability of his ignorance in making the payment.” Whether a mistake is excusable will therefore depend on the facts of the case. Duress Situations may occur where a party is forced to make a payment as a result of pressure or duress. The decision in CIR v First National Industrial Bank Ltd 1990 (3) SA 641 (A) provides a good example of payments made under duress. In this matter, a dispute had arisen between the Commissioner of Revenue and FNB on whether a particular card scheme attracted stamp duties or not. The Commissioner insisted that the FNB pay the duties and FNB subsequently did so under protest. The court then found that no stamp duties where in fact payable and therefore the money had been repaid to FNB on the basis of unjustified enrichment. Other examples of duress may include threats of physical force. There are, as mentioned above, various other enrichment actions available to aggrieved parties. If you believe you may have an enrichment action, contact a legal professional to assist you in determining the way forward. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

The legal duty of a grandparent to maintain a grandchild

By operation of law, the liability to maintain someone is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship to the person from whom he or she claims support; and thirdly, the latter’s ability to provide support. The common law and the Children’s Act recognise that parents are the primary caregivers of their children by imposing on them a duty of support insofar as they are able to do so. There is a reciprocal duty of support between parents and children. In terms of the common law, a parent has a legal duty to maintain a child and the deceased estate of a parent also has the legal duty to support the child. Furthermore, the common law recognises that the duty of support of a child will, if both the parents of the child are unable to maintain the child, fall upon the maternal and paternal grandparents of the child if they are able to provide support. In terms of the common law, however, the duty to support a grandchild is not enforceable against the deceased estate of a grandparent. In the case Phillipa van Zyl NO v Keith Getz NO, the Supreme Court of Appeal (“the SCA”) was asked to develop the common law by recognizing a duty of support on the part of the deceased estate of a grandparent. The background to the case considered by the SCA is as follows: Father (F) and mother (M) had a daughter (D) before they were divorced. After the divorce, F left South Africa and went to live in the United States of America. M raised D on her own. D’s paternal grandfather (GF) and grandmother (GM) were both alive at the time of the divorce. GF supported D during his lifetime to the extent that F did not, and M could not. Upon the death of GF, a claim for maintenance was lodged with the executor (E) of the deceased estate of GF, on behalf of D. The claim was rejected by E on the basis that there is no obligation in law on a grandparent’s estate to maintain a grandchild. The SCA found that the common law, as it currently exists, recognises the special role and responsibility that parents have in raising children, and that the role and responsibilities which attach first to the relationship between parents and their child may only be passed on to other family members where parents are unable to fulfil them. The SCA ruled against the development of the common law to include a liability on the deceased estate of a grandparent to maintain a grandchild. The SCA held that the development of the common law would be inappropriate, given the effect it may have on the law of succession and other foundational values of the Constitution. Reference List: Children’s Act 38 of 2005 Van Zyl NO v Getz NO (548/19) [2020] ZASCA 84; [2020] 3 All SA 730 (SCA) This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What happens if I die without a will?

We’ve all seen it in movies and novels: A young unsuspecting person wakes up one day to find out that they had been left an extraordinarily large estate from a distant relative that they hardly knew existed. We chalk it up to an absurdity. Something like that would never happen in real life, would it? Although it may seem farfetched, intestate succession happens far more often than one might realise. Statistics from the Master of the High Court in September 2019 showed that 70% of working South Africans do not have a will (or by extension, estate plan). Apart from the emotional distress caused by the death of a beloved, the families of these South Africans are in for a tough time should they pass away. When somebody over 16 years of age dies, their property will be distributed according to a will or estate plan. If there is no will to speak of, the estate of the deceased is distributed in accordance with the Intestate Succession Act 81 of 1987. In many respects, intestate succession is a complex and unnecessary complication in the distribution of an estate after death. Although somewhat clear cut regarding who is included in the distribution of the estate, the Intestate Succession Act leaves much of the how of the distribution and transfer of the estate to the inheriting parties. In the case of intestate succession, the estate of the deceased will be distributed in accordance with a predetermined line of succession, which usually includes their spouse, children and/or parents. Intestate succession can lead to procedures that take time, money and energy, which are luxuries for those who are mourning and settling the estate. One should keep in mind that the largest part of any estate is often real and private property. Without a plan for the distribution of one’s estate, it means that the physical property of the deceased also becomes part of a plan for distribution, which can take extremely long to settle (since assigning a monetary value to physical assets depends on valuation). As for the how of the distribution of the estate, it ends up falling on the shoulders of the heirs to the estate to nominate someone to act as executor, failing which an executor is appointed by the Master of the High Court. For this reason, family disputes are a commonplace in intestate succession as the fair distribution of the estate is brought into question. More often than not, there is very little liquidity in the estate to cover debts and taxes related to the property to be inherited. Since most of the real and private property does not have an immediate monetary value, any possible liquidity in these assets are locked up until the executor makes a decision on how the property is to be managed. Having a will is one thing, but estate planning goes further than a mere will, in that it gives direction for the management of the estate in preparation for when you die. Where a will only gives an indication of how assets should be distributed, a complete estate plan will give guidance as to how money is made immediately available to those who need it and how investments and financial assets are to be managed. Issues of custody, settling of debt, the continuation of school fees, and management of digital assets, among many other urgent matters, can also be simplified through a well-developed estate plan. The purpose of an estate plan, then, is to guide the management of your assets in a way that a will cannot. Good estate planning can speed up the processes that take so long when executing a will and comprises a holistic strategy to ensure that your loved ones are cared for after you die. In the case of estate planning, the adage holds true: Failure to plan is planning to fail. Don’t leave your dependents in a vulnerable position while they mourn. Instead, give them the best chance to live the life you’ve always hoped for them. References: Wills Act 7 of 1953 Intestate Succession Act 81 of 1987 https://www.moneyweb.co.za/financial-advisor-views/no-will-in-place-it-will-have-consequences/ This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

Determining the validity of your will

I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as to how I should go about signing the Will. I asked my neighbours to act and sign as witnesses. My neighbours signed the Will on all the pages and left before I signed the Will on all the pages. I am now worried about the validity of my Will as the email from my attorney states that I have to sign the Will in the presence of two witnesses. Is my Will valid? The formalities for the valid execution of a Will are set out in the Wills Act. Section 2 of the Wills Act, Act 7 of 1953, reads: “No will executed … shall be valid unless the will is signed at the end thereof by the testator… and such signature is made by the testator… in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other…”. Therefore, for a Will to be valid, it must be signed in the presence of two witnesses, both witnesses being present when the Will is signed by the testator. The two witnesses signed your Will in the presence of each other, but not in your presence. A similar set of facts presented itself in a court case heard by the Gauteng Local Division of the High Court. In this matter, the two daughters of the deceased, who lost out on their inheritance in terms of the Will of their father, claimed that it was never their father’s intention for his much younger lover to inherit his total estate. The testator was 85 years old at the time of his death and he had been living with a woman 38 years his junior, for 8 years. The deceased executed two wills during his lifetime. One on 6 November 2011 (“the 2011 Will”) and another on 7 January 2014 (“the 2014 Will”). The 2014 Will was signed shortly before his death, leaving the bulk of his estate to his much younger lover. One of the witnesses called to testify in court was a witness to the 2014 Will. Her testimony focused on the circumstances surrounding the signing of the 2014 Will. She testified that she and her husband met the deceased in the street. As they were acquainted, they engaged in social conversation. She and her husband were informed that the deceased was on his way to the police station to sign a Will. She and her husband were asked if they would accompany the deceased to sign the Will as witnesses. They were assured that the process would not take long so they agreed to assist. She and her husband signed the Will and immediately left before witnessing the deceased signing the will. Hence, the 2014 Will was not signed by the deceased in their presence even though it reflects their respective signatures as witnesses. The evidence assessed collectively established that the deceased signed the 2011 Will and that he signed the 2014 Will. However, the 2014 Will was signed by the deceased after the two witnesses to the Will had already left and therefore was signed in their absence. The court referred to Section 2 of the Wills Act, in terms whereof no Will is valid unless the signature made by the testator is made “in the presence of two or more competent witnesses present at the same time”. The court confirmed that this requirement is mandatory and, if not met, the Will is not valid for want of compliance with a statutorily required formality. The court, therefore, found the 2014 Will to be invalid and, as there was no evidence that there was any irregularity in the execution of the 2011 Will, the 2011 Will was declared the Will of the deceased. This judgement of the High Court once again emphasizes the importance of complying with the Wills Act. Your Will is thus invalid and it is advisable for you to print the Will again and to sign it in the presence of two competent witnesses or, even better, for you to make an appointment with your attorney in order to sign the Will at his office. Reference List: Twine and Another v Naidoo and Another [2017] ZAGPJHC 288; [2018] 1 All SA 297 (GJ) Wills Act, Act 7 of 1953 This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Taking your will out of lockdown

The last few weeks have seen huge changes in the way we live our lives. The demand for wills has surged during the COVID-19 pandemic, which is understandable in the midst of a grave health crisis. As attorneys, we are able to work from home and have access to the necessary technology that enables agile and secure working, meaning that we are able to engage with and service clients as we would in the office. Instructions can be taken telephonically or by email and the drafted will can be sent to the client by email for approval and amendment. Once the contents of the will have been finalised, it has to be signed. The Wills Act, 7 of 1953 (“the Act”), requires the following for the proper execution of a valid will: “2.   Formalities required in the execution of a will. (1)  Subject to the provisions of section 3 bis (a)          no will executed… shall be valid unless (i)            the will is signed at the end thereof by the testator…; and (ii)           such signature is made by the testator…, in the presence of two or more competent witnesses present at the same time; and (iii)          such witnesses attest and sign the will in the presence of the testator and each other…; and (iv)         if the will consists of more than one page, each page other than the page on which it ends is also signed by the testator… anywhere on the page.” As far as the competency of witnesses are concerned, the Act reads as follows: “4A.   Competency of persons involved in execution of a will. (1)  Any person who attests and signs a will as a witness… or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.” A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. Anyone who signs a will as a witness is disqualified from receiving any benefit under the will. A benefit includes nomination as executor, trustee or guardian. Despite this provision, someone who would have inherited under the rules of intestate succession will not be disqualified, but the inheritance will be limited to the intestate portion the person would have inherited. Thus, a person creating a will and two competent witnesses have to be in the same place and all sign the document to ensure it is valid. During the lockdown, the two-witness rule is hindered by social distancing and is creating practical – but not insurmountable – challenges. People with existing health conditions and the elderly are the most likely to want to sort out their will right now, but they are also the most threatened by close contact with others. Several clients have enquired about practical ways to have wills signed during the lockdown. One option would be to sign your will outside in the presence of two neighbours who are not displaying coronavirus symptoms. They should remain at least two metres away from you, in a place where they are still able to see you sign the will. The witnesses also need to sign the will so you would then place it in a convenient spot visible to all parties and move away. Both witnesses could separately approach and sign and as long as precautions are taken such as using your own pens, making no physical contact, wearing gloves, conducting the process quickly, and adhering to strict handwashing measures afterwards. Another option would be for you to approach two essential workers, many of whom are risking their lives to continue serving the country. For instance, when attending the local supermarket for your essential requirements — such as food — or when attending the pharmacy for medication, request the workers there to witness your will. If a terminally ill patient in a hospital wishes to sign a will, it should be possible to arrange for the will to be signed in the presence of two nursing staff members. In circumstances where none of the above is an option and there is absolutely no other way to validly execute the will, the common sense approach would be to date and sign the will properly and draft and sign a memorandum or letter making it clear why the will was not signed by witnesses but stating that the will is intended to be the last will and testament. This course of action will make an application under Section 2(3) of the Act, to validate such a document as the will of the deceased, much more likely to succeed. Section 2(3) of the Act reads as follows: “2.   Formalities required in the execution of a will. (3)  If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 66 of 1965, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).” In order to ensure that the will is valid and to avoid the delay and expense of a High Court application, we invite clients to come and see us once things are back to normal to review and, if necessary, re-sign their wills. These are highly unusual circumstances, so wills written during this time may well need to be revisited in the future. Reference List: https://www.justice.gov.za https://www.moneyobserver.com https://www.legalcheek.com Wills Act, 7 of 1953. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be

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