Understanding living wills
When one thinks of a will, the first thing that comes to mind is probably a last will and testament. This type of will expresses a person’s wishes after they have died. However, a living will, despite sharing some similarities with a last will and testament, is not the same thing. It can be described as a legal document outlining an individual’s preferences for medical decisions in the event they are unable to communicate these wishes themselves. It can be a very helpful tool for family members and healthcare providers when they are faced with making medical decisions on someone’s behalf. Validity requirements for a living will Like most legal documents, certain requirements must be met for the document to be considered valid and binding. According to the Living Will Society of South Africa and the South African Medical Association, there are four requirements which must be met for a living will to be valid. 1. The person making the living will must be 18 years or older. 2. At the time of making the living will, the person must have the necessary mental capacity. 3. The person making the living will should only be allowed to refuse medical treatment if they have been fully informed of the condition and the proposed treatment thereof. 4. The doctor treating the person must be satisfied that they have not changed their mind. Requirement 1: This requirement is very straightforward. A living will can only be valid if the person who made such a will is 18 years or older. Requirement 2: This requirement states that a person must have the necessary mental capacity to make a living will, which means that they must understand the decisions they are making. Under normal circumstances, proving that an individual has the necessary capacity is not a difficult task, however, this becomes more complicated if the individual is elderly or has an intellectual disability. An individual’s mental capacity can be assessed in several ways and by several professionals such as a doctor, psychologist, or psychiatrist. Requirement 3: The third requirement holds that a person may only refuse medical treatment where they have been informed of their condition and the possible treatment thereof. This requirement will be unproblematic where an individual has a chronic or terminal illness and decides to draft a living will after finding out their diagnosis. In this instance, the individual is likely to have discussed all possible treatments with their healthcare provider and are properly informed. However, this can become slightly more problematic when a person suddenly becomes ill or in case of an emergency. Requirement 4: This requirement is focused on the subjective opinion of a specific healthcare provider. Doctors have an obligation to protect their patients’ lives, subject to certain limitations of course. As a result, withholding lifesaving treatments will have to be carefully considered by healthcare providers. The subjective nature of this requirement means that the individual has less control. However, some steps can be taken to assist healthcare providers in their decisions. For example, one can ensure that their living will has recently been attested to. The more recently a living will has been drafted and signed, the less likely healthcare providers are to question a patient’s possible change of heart. This can be particularly helpful where the living will has been signed after life changes in an individual’s life such as getting married or having children. Formal requirements for a living will There are no prescribed requirements for the format of a living will. However, some important details should be included such as: 1. Full names as they appear on the individual’s identity document. 2. The current residential address of the individual. 3. A list of directives and what the individual does not consent to. 4. When and where the living will was signed. 5. The individual’s signature. 6. The full names and signatures of two witnesses who were present when the living will was signed by the individual. Should you wish to learn more about living wills or need assistance drafting living wills, contact us. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the 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. Powered by SucceedGroup
Can you inherit from someone you have merely been living with?
In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies without a will? Should a surviving partner in such a scenario have a claim for inheritance or maintenance from the deceased estate? If yes, under what circumstances would a claim be allowed? The answer to these questions will be explored in light of the Bwanya v Master of the High Court, Cape Town and Others case. The facts of the Bwanya case were as follows: Ms Bwanya and Mr Ruch entered into a romantic relationship in 2014. They grew so intimate that they moved in together as well. The couple’s friends all knew about their relationship, and Mr Ruch even introduced Ms Bwanya to his friends as his wife. The romantic relationship they had, comprised all the characteristics of a marriage. For example, Mr Ruch bought all the groceries, and household necessities and also provided for the household expenses. Ms Bwanya provided him with love, care, support, and companionship. In addition, the couple also made future plans together. For example, Mr Ruch has been helping Ms Bwanya obtain her license. The deceased had also planned to buy her a car, as the couple planned to start a cleaning business together. The two also had plans to cement their relationship with a baby. In 2015, the pair got engaged. The couple planned a trip to Zimbabwe for lobola negotiations to commence. Mr Ruch also planned on selling one of his properties in preparation. Sadly, two months before the trip to Zimbabwe, Mr Ruch passed away. He had nominated his mother in his will who had already predeceased him. Thus, he died intestate. Ms Bwanya, after the death of her life partner lodged a two-fold claim against the deceased estate. Firstly, to inherit under the Intestate Succession Act, and secondly, to claim maintenance under the Maintenance of Surviving Spouses Act. The basis of the claim was that the relationship between the two, was akin to a marriage and that the parties had undertaken reciprocal duties of support. The Constitutional Court in its judgement, held that permanent life partnerships must be accorded the necessary respect in our society as they are one of life’s realities. Furthermore, the court declared that the relevant legislative provisions constitute unfair discrimination and are constitutionally invalid. On this basis, the court held that when the term “spouse” is used in the provisions, it must include: “a 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 effect of this judgement is that a surviving partner in a permanent life partnership will be able to claim for maintenance and inheritance. However, it must be emphasised, that this legal entitlement of a surviving life partner does not flow from the mere act of living together permanently as a couple. Permanent life partners do not obtain a right to inherit or claim from a deceased estate by the operation of law. The court qualified the claim by stating that a surviving partner can only claim where the parties had undertaken reciprocal duties of support. The court gave a guideline as to what can be considered to determine whether or not there is a reciprocal duty of support between life partners. A reciprocal duty of support between life partners may entail the following: “…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or a support-generating business…To my mind, these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.” In conclusion, it is clear from this judgement that a surviving life partner is not left without a claim when their life partner has predeceased them. However, this claim is not guaranteed because the claim does not flow from the mere fact of living together. The court carefully set out the circumstances under which the claim would possibly be allowed. Reference List: 1. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC). Marriages on the decline in South Africa (02-10-2023) <https://www.statssa.gov.za/?p=16142> While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the 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. Powered by SucceedGroup
Can a testator disinherit their surviving spouse?
The Maintenance of Surviving Spouses Act 27 of 1990 permits surviving spouses to seek maintenance from the deceased spouse’s estate upon the marriage ending due to death. This claim lasts until the survivor’s death or remarriage and factors in estate value, the survivor’s financial circumstances, marriage duration, living standards, and age. It is widely recognised that testators have the freedom to distribute their assets as they see fit. However, certain laws, grounded in public policy, limit this freedom. While many legislations restrict the freedom of testation, this article will specifically focus on the Maintenance of Surviving Spouses Act 27 of 1990. When a marriage is in community of property, the surviving spouse automatically receives 50% of the joint estate upon the other’s death due to the nature of the marriage. A will cannot change this entitlement. However, such an exclusion in a will might impact any potential maintenance claim by the surviving spouse. In the Hodges vs. Loubrough case, Didcott J observed that the mutual duty of support between spouses, and the consequent maintenance obligations, arise from their matrimonial bond. Once this relationship ends, either by death or divorce, that duty ceases. The Maintenance of Surviving Spouses Act 27 of 1990 (the Act), changed this common law perspective. The Act, effective from 1 July 1990, was introduced to allow surviving spouses a claim for maintenance against the estate of the deceased under certain conditions. According to Section 2(1) of the Act, if a marriage ends due to the death of one spouse after the Act’s commencement, the surviving spouse can claim from the deceased’s estate for their reasonable maintenance. This claim can continue until the surviving spouse’s death or remarriage, provided that the surviving spouse cannot meet these needs through their own earnings. Section 3 of the Act states that in determining the reasonable maintenance needs the following is taken into consideration: -the amount in the deceased estate available for distribution to heirs and legatees; -the existing and expected means, earning capacity, financial needs and obligations of the survivor; -the subsistence of the marriage; -the standard of living of the survivor during the substance of the marriage; and -the survivor’s age at the date of death. It’s evident that if a marriage ends due to the death of one spouse, the duty of support transfers from the deceased spouse to their estate. This is, of course, assuming the estate has the resources to meet this obligation and the surviving spouse cannot cover their own maintenance needs from personal earnings. Therefore, it appears that individuals can choose to leave their spouses out of their wills, provided the surviving spouses can financially sustain themselves. Reference list: -In Hodges v Coubrough NO -Section 2 of Act 27 of 1990 -Section 3 of Act 27 of 1990 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the 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. Powered by Succeed Group
The intent to revoke a last will and testament
The Western Cape High Court recently examined whether a person had the intent to revoke their existing will. The deceased, hospitalised with COVID-19, expressed a desire to revoke their will and draft a new one. However, the court found that the necessary intent to revoke was absent, emphasising the importance of complying with the Wills Act’s requirements. The question of whether a person had the intention to revoke an existing will was recently considered by the Western Cape High Court in the matter Roux NO and Another v Stemmet NO and Others. The late Mr Stemmet (“the deceased”) executed a will on 23 October 2018 in terms of which his entire estate was bequeathed to his children. In July 2021, the deceased contracted the COVID-19 virus and as a result, he was admitted to the Medi-Clinic in Worcester. On 25 July 2021, the deceased indicated to his farm manager, Gawie Willemse (“Mr Willemse”), that he wished to revoke his 2018 will and requested the latter’s assistance in this regard. On 30 July 2021, assisted by Medi-Clinic personnel, the deceased contacted Mr Willemse via video call. During this video call, the deceased again expressed to Mr Willemse, his wish to revoke the 2018 will and that his final instructions regarding the disposal of his estate were that his entire estate was to be left to the Willemse Boerdery Trust. During the video call, the deceased requested Mr Willemse’s help to engage attorneys to draft a will reflecting his final wishes. After the video call, the deceased was transferred to the intensive care unit of the hospital. In accordance with the deceased’s wishes, Mr Willemse conveyed the deceased’s instructions regarding the disposal of his estate to attorney Louis Benade (“Mr Benade”), to prepare a will in accordance with the deceased’s instructions, as expressed in the video call. Mr Benade did as was requested and on 31 July 2021, provided Mr Willemse with a duly prepared will (“the draft will”). On the same day, Mr Willemse attended the Medi-Clinic to deliver the draft will to the deceased, but he was refused access to the ICU and prevented from delivering it personally to the deceased due to the COVID restrictions in place at the time. Mr Willemse’s request to the hospital personnel to deliver the draft will to the deceased, was refused. Mr Willemse proceeded to leave the draft will in the care of the hospital personnel, with a request that it be delivered to the deceased as soon as possible. During the evening of 31 July 2021, Medi-Clinic personnel attempted to deliver the draft will personally to the deceased, but the latter was unable to receive the document as he had been induced into a coma for purposes of being intubated. The deceased never came out of the coma, never recovered, and died without signing the draft will. The trustees of the trust instituted an action for the 2018 will to be declared revoked under sec 2A(c) of the Wills Act, 7 of 1953 (“the Act”), and the draft will to be his last will. Section 2A of the Act provides that a court may declare a will to be revoked if it is satisfied that a testator, in this instance, the deceased: “…drafted another document or before his death caused such document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.” The court found that the deceased did not personally draft the will, the document which the trustees rely upon as revoking the deceased’s 2018 will and that the drafter was the attorney, Mr Benade. The instruction to Mr Benade to draft the new will was given by Mr Willemse, and not the deceased. The court also found that the deceased never physically received the draft will, never perused it, never approved of its content, and never signed it in the presence of witnesses as required by section 2(1)(a) of the Act. Furthermore, accepting that he was in a coma at the time that the draft will was delivered to him by nursing personnel, it follows that the deceased was unaware of the content and was, at least objectively speaking, not in a position to confirm that the content of the draft will correctly expressed his intentions. Accordingly, the court found that the necessary animus revocandi, the intent to revoke or rescind, was absent. 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 assistance from an attorney or a fiduciary expert with the drafting or amendment of your last will and testament, as and when your circumstances or wishes change. Reference list: -Roux N.O and Another v Stemmet N.O and Others (17064/2022) [2023] ZAWCHC 222 -Wills Act, 7 of 1953 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the 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. Powered by Succeed Group
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. 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.