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)
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)