The difficulty of choosing a guardian
No parent wants to think about giving their child over to someone else. The idea itself is enough to send many into full Liam Neeson Taken mode, refusing even the idea of their child being taken away from them to find a hold in their minds. But what is it’s not your child that is taken away, but you? Making sure your child is cared for and looked after by someone you know will care for them (almost) as much as you when you’re gone is something that can only be achieved through the appointment of a guardian in a will. The appointment of a guardian should not be taken lightly, though. While your own personal relationship with the prospective guardian is vital, consideration needs to be given to your child’s opinion of them as well. When you feel you have found the perfect candidate, take the time to talk to your child about it. Even if you don’t, the High Court will. Once a legal guardian has been appointed, the Court takes the child’s opinion into consideration and will conduct the necessary investigations to determine whether the most suitable guardian has been appointed, putting your child in a difficult situation that could have been avoided. Unfortunately, the appointment of guardianship is not legally binding. Appointed guardians are free to accept or decline their position as legal guardian before any parental rights or responsibilities are given to them. The reason for refusal may include that they have started a family of their own, they moved too far away, they started a new profession, or even that they have simply changed their minds. The grounds for declining guardianship have no bearing on whether or not their decision is accepted or not. In the case where the appointed guardian refuses guardianship, the High Court will look towards the next of kin of the deceased parents to find a suitable guardian. This search is conducted according to the degree of familial relation, making the aunts, uncles and grandparents of the child the first options, with second cousins twice removed on someone or other’s side barely being given a second thought. In these cases, the next of kin will also have to accept their guardianship, though, just like any other guardian. When no next of kin can be found, the High Court will place the child into childcare. But what if you had actually considered that second cousin as a guardian when you set up your will? What if you have a friend that will make an amazing parent (just maybe not as amazing as your first choice of guardian)? When appointing a guardian in your will, it is important to consider the fact that your primary candidate may not be able to fulfil their duties and include the names of substitute guardians for such cases. This will ensure that the child’s future is still in the hands of their parents, and not with a distant aunt that no one even knew of. Choosing a guardian (or guardians) isn’t a simple task, but it’s one that is essential to ensuring your child will always have someone ready to go full Liam Neeson for them. 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)
Get organised by putting these essential documents in place
If you can believe it, we are already at the end of January. With all the beginning-of-year struggles and excitement, there is something to keep in mind – your New Year’s resolutions. It is never too late to become better organised. One of the best ways to become better organised is to put life’s most essential documents in place. No one really wants to think about serious illness or death. While you may not want to think about these things at the start of a new year, going without planning can be problematic on many levels. If you want to make sure that your loved ones and your assets are secure, it is time to get better prepared by having those essential documents in place. Consider having these three documents prepared and signed: Last Will and Testament You really meant to get around to updating your Will after your wedding… the birth of your child… your divorce… your big move…but you just haven’t found the time. The right time is now! A Will is the only method by which you can ensure that your assets, including items of monetary and/or sentimental value, are properly protected and distributed in accordance with your wishes. A Will can have a great influence on the well-being of the persons that you care about, and when you draft a Will you ensure that they will be looked after when you are no longer there for them. Ensure that your Last Will and Testament leaves a legacy of love and not a deluge of destruction. Your Will should be a practical document in simple language which records your intentions and is easy to understand and execute. Living Will A Living Will is a document regarding healthcare at the end of your life. It states that any treatment that would otherwise lengthen your life should be withheld in specific circumstances, such as being in a permanent vegetative state, irreversibly unconscious or terminally ill. Through a Living Will, you express the desire to die a natural death, free from having your life extended artificially using life support in any form such as a life support machine, tube feeding, or medication. In other words, by way of a Living Will, you tell your family and your doctor that you do not consent to being kept alive artificially. A Living Will provides peace of mind as it enables you to express your choice of medical care should you be unable to communicate. A Living Will can also assist in settling disagreements amongst family members and medical professionals regarding appropriate treatment. Power of Attorney Power of attorney is one of those phrases that you hear quite often, and there can be some very real implications for a person that signs it over. Understanding exactly what a Power of Attorney is, and how it can affect you after certain life events, is very important. A Power of attorney is essentially a notice by way of which one person, known as a Principal, appoints and authorises another person, known as an Agent, to act on their behalf and make decisions for them. This can be for specific matters (Special Power of Attorney) or for all matters (General Power of Attorney). A Power of Attorney is a valuable tool when you are absent or become too frail to physically sign documents. These are a few suggestions to help you get administratively organised. It is all about peace of mind and knowing that your loved ones are cared for and aren’t put in a position to make difficult decisions. Having these documents in place might be one of the final acts of love you show your family. 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 validity of an e-will
In terms of South African law, for a will to be accepted as valid by the Master of the High Court (a statutory body to which deceased estates are reported), it must comply with the legal formalities as set out in section 1(a) of the Wills Act, 7 of 1953 (hereinafter referred to as the Wills Act). The main requirements in terms of the Wills Act are that the will must be signed by the testator and two competent witnesses, all in the presence of one another. Non-compliance with the formal requirements of the Wills Act will render the will invalid and void. Please note that a certified copy of a signed will is not valid as the Master of the High Court will only accept an original signed will. An electronic will is a will saved as a data message, email or word document on a hard disk or memory device. This type of will is usually typed on the computer/email/data message, but there is no actual signature which allows the law to recognise the document as authentic. The legislator saw a need for a court to be able to declare a will valid even though it does not comply with the formalities of the Wills Act and added section 2(3): “(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, 1955, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)” Therefore, a will that is drafted electronically can be regarded as a validly executed will if application is made to the High Court and the court is satisfied that (a) the document was drafted by the deceased (b) the deceased has died since the drafting of the document and (c) the document was intended by the deceased to be his last will. Currently, there is no legal certainty as to how and when electronic data can be used for the purpose of conveying your final will. Until the Wills Act is amended to include electronic wills, it would be best, if you wish to avoid complications, to draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act. If you have any questions please contact our Estate Advisor, Inge Heath, at inge@asl.co.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)
How do our courts interpret wills and testaments?
It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves a will or a testament, it is the duty of the court interpreting the will or testament to make an order that obeys the wishes of the testator as far as legally possible. This article will look at the two competing approaches taken by courts in the interpretation of wills and testaments – namely the golden rule and the use of armchair and extrinsic evidence – and attempt to identify the current approach taken by our courts. I The Golden Rule The starting point for the interpretation of wills and testaments is the golden rule established in the case of Robertson v Robertson’s Executors 1914 AD 503. In this case, it was held that courts are to “ascertain the wishes of the testator from the language used. And, when these wishes are ascertained, the Court is bound to give effect to them, unless it is prevented by some rule or law from doing so”. In other words, the golden rule holds that courts must ascertain the wishes or intentions of the testator by merely looking at the language used by the testator. Accordingly, this rule makes no provision for courts to have regard to external factors when interpreting the testator’s language. The rationale for restricting courts to the words used by the testator in their will or testament is because the testator’s words are the primary indication of their intention. Therefore, the courts are often reluctant to depart from the ordinary or literal meaning of the words used by the testator. However, there have been some significant developments in the approach of our courts to the interpretation of wills and testaments since the golden rule was established. One such development is the use of armchair and extrinsic evidence in the interpretation of wills and testaments. II Armchair and Extrinsic Evidence Armchair evidence sees a court placing itself in the position of the testator in order to determine their intention. In other words, a court puts itself in the armchair of the testator to understand their thought process in the creation of their will. Extrinsic evidence is evidence that is obtained elsewhere, i.e. not from the will itself. Extrinsic evidence, therefore, refers to the surrounding circumstances or factors accompanying the will. In Cuming v Cuming 1945 AD 201, it was held that armchair and extrinsic evidence may only be used if the wording of the will is ambiguous or uncertain, and the intention of the testator cannot be determined merely by examining the wording used in the will. In other words, when armchair and extrinsic evidence is used in situations where the testator’s use of language is ambiguous, the courts can step into the shoes of the testator and investigate the surrounding circumstances of the creation of the will in order to determine the testator’s intention at the time of creating the will. However, this line of reasoning has been challenged. In Allen v Estate Bloch 1970 (2) SA 376 (C), the court held armchair evidence to be admissible in cases where there is no ambiguity or uncertainty regarding the words that the testator used in their will. In this case, the court held that the correct approach is that a will should not be analysed in isolation. It is seen as a more practical approach to ascertain the intention of the testator, as it takes into account all the relevant factors surrounding the creation of the will. III Conclusion: What is the Approach of Our Courts? The case law regarding whether or not the golden rule is still adhered to by courts remains inconclusive. The magnitude of case law seems to suggest that, to a large extent, our courts do not follow the golden rule, but rather follow the reasoning of the Cuming case, which allows for the use of armchair and extrinsic evidence only where the wording used by the testator is ambiguous. To summarise, it is evident that our courts still use the golden rule as the starting point for interpreting wills and testaments, but it is generally no longer used in isolation. Reference List: Robertson v Robertson’s Executors 1914 AD 503. Jamneck, et al The Law of Succession in South Africa 2 ed (2012). Cuming v Cuming 1945 AD 201. Allen v Estate Bloch 1970 (2) SA 376 (C). 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)
Managing disputes over a deceased relative’s estate
If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles. The Administration of Estates Act, 1965, determines what must happen with an estate after a person’s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to do this an executor will be appointed to act on behalf of the estate. Finding the will of a deceased relative If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the Master of the High Court to check if they have a copy of the will. Other places to call would be the deceased’s life insurance company, bank or lawyer. Otherwise, the deceased might have left a copy of it somewhere secure in their home. Who is the executor? An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the Master of the High Court. The Master will ultimately decide who will take the role of executor. If the chosen executor doesn’t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the Master will give them “Letters of Executorship”, which will give only them the authority to handle the estate. What does the executor need to do? The executor has several responsibilities such as arranging the valuation of the estate’s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries. Some other responsibilities of the executor include: Arranging provisional payments for the family’s immediate needs. Opening a bank account for the estate and depositing the estates money in it. Paying all the necessary estate duties. It’s important that any person who wants to act on behalf of the deceased person’s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate’s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it. Eventually, the executor will prepare a liquidation and distribution account. This would include what they intend to do with all the assets left after expenses. This account would be delivered to the Master, who will check to see if the executor’s actions reflect the will of the deceased and that all legal requirements have been fulfilled. Important things to keep in mind? The Master of the High Court should be notified of the deceased person’s estate not later than 14 days after the death. According to the Department of Justice, the death of anyone who owned property in South Africa must be reported to the Master, whether or not they died in the country. All estates that exceed R50 000 should be reported to the Master of the High Court directly because magistrate’s offices have limited jurisdiction. If reported to the magistrate’s office, estates will usually be referred to the Master. References The Department of Justice and Constitutional Development. 2012. “Reporting the estate of the deceased”. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016. Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016. 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 basics of creating a Last Will & Testament
Who your property is passed on to depends on whether you have a valid will or not. If you do have a valid will, then your property will be divided according to your wishes stated therein. If you die without a will (called “intestate”), then your property will be divided amongst your immediate family according to the laws of intestate succession. How can I create a Will? If you are older than 16, you have the right to create a will, to state who you would want your property to go to when you die. In order for your will to be valid, it needs to be compiled in the proper way. According to the law, you have to be mentally competent when you compile your will; this means that you must understand the consequences of creating a will and that you must also be in a reasonable state of mind when you do so. You must make sure that your will is in writing in order for it to be valid. Two people older than 14 years must witness the creating of your will (these witnesses cannot be beneficiaries). You have to initialise every page of the will and then sign the last page. The witnesses must also initialise and sign the will. You can, and should, approach a lawyer to help you draw up your will to avoid creating an invalid will. You can appoint an executor in your will to divide your property amongst your loved ones. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will, and he/she will also settle your outstanding debts. If you don’t choose an executor yourself, then the court will appoint someone, which is usually a family member. What are the risks of not having a Will? If you don’t have a valid will when you die, your property will be divided according to the rules set out by the law. These rules state that a married person’s property will be divided equally amongst their spouse and children. If you don’t have a spouse or any children, then your property will be divided between other family members. If you also don’t have any blood relatives, then the property will be given to the government. You might think that you do not need a will, as your family will divide your possessions amongst each other, but you must keep in mind that delays in dealing with your estate could affect your family negatively; they might be relying on their inheritance for an income. The beneficiaries of your estate will be determined according to the laws of intestate succession, if you die without a will. This law determines the distribution of your assets to your closest blood relatives, meaning that your assets may be sold or split up against your wishes. Some of your assets could be given to someone in your family that you did not intent to benefit from your estate. Without a will, you cannot leave a specific item to a specific family member or friend. If you live with someone but are not married to them, the law will not necessarily recognise him/her as a beneficiary of your estate, unless you have left a will naming them as a beneficiary. References: Western Cape Government. (2017). Making a Will. [online] Available at: https://www.westerncape.gov.za/service/making-will [Accessed 22 Jun. 2017]. Momentum.co.za. (2017). Drafting a will and setting up a trust. [online] Available at: https://www.momentum.co.za/wps/wcm/connect/momV1/f150ba2e-3724-4b42-9265-332106cb6b83/drafting+a+will_E+vs+2+%2807032013%29%5B1%5D.pdf?MOD=AJPERES [Accessed 22 Jun. 2017]. 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)
Properly executing a will is extremely important
I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, my attorney emailed the will to me with clear instructions as to how I should go about signing it. I asked my neighbours to act and sign as witnesses. My neighbours signed the will on all the pages and left before I signed. I then 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, in order for a will to be valid, it has to be signed in the presence of two independent 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 recently 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. The daughters of the deceased claimed the 2014 will was invalid as there were “suspicious” circumstances. They claimed their father either did not sign the 2014 will himself or, if he did, that he lacked the mental capacity to execute a valid will by reason of dementia. The daughters of the deceased were not successful in proving that the deceased’s signature was a forgery despite the fact that three handwriting experts testified. Another witness called to testify was a witness to the 2014 will. Her testimony focused on the circumstances surrounding the signing of the 2014 will. She signed the will as a witness. She testified that she and her husband met the deceased in the street. As they were acquainted they naturally 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 in order 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. They were the first to sign the will. At the time they signed the will the deceased had not signed the will. They 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 also 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 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)