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Newsletter 7

Newsletter 7

Dear Colleague
“A human life has seasons much as the earth has seasons, each time with its own particular beauty and power.  And gift.  By focusing on springtime and summer, we have turned the natural process of life into a process of loss rather than a process of celebration and appreciation.  Life is neither linear nor stagnant.  It is movement from mystery to mystery.  Just as a year includes autumn and winter, life includes death, not as an opposite but as an integral part of the way life is made.”
Quote by Rachel Naomi Remen
Death is as part of life as life itself.  Therefore, we need to live the one and prepare for the other.  A well drafted Will is just one of the essentials in life to make it easier for those left behind. In this edition as well as in next month’s, we concentrate on instructions that are impractical or cannot be executed at all.  We trust that this will be helpful to you in discussing the drafting of a Will with your clients.
 Read more in the next edition.
There are some bequests in Wills that just cannot be carried out.  For instance:  A man leaves everything in his estate to his secretary, on the condition that she does not wear perfume or make-up for a year and that she does not date another man in this time.
Although it seems funny and it must have been his honest wish at that time, such a provision is not feasible.
The first question is:  Who is going to control this provision?  And what happens if she does not comply?
Sometimes one honestly wants to leave certain assets to loved ones with the best intentions, but it could not be practical to do so.  Let’s look at some common bequests found in Wills that are not feasible:
-          Leaving firearms or a motor vehicle to a minor.  Should the fire arms or motor vehicle be kept in safe custody until the child becomes major, the cost of doing so could exceed the worth of the asset and in the case of a vehicle, it’s value will also depreciate.
-          Stating that a bequest can only come into effect after a beneficiary has a degree.  What happens if a child is not capable of obtaining a degree or the child that is busy studying are involved in a major accident and cannot proceed or complete the studies?
-          The house or farm may not be sold.  What happens if circumstances change so much that it becomes dangerous to live there or financially they cannot afford the upkeep of the property?  This can cause the property to deteriorate and the heir might in any case lose it.
-          Leaving a business to a minor child.  Who is going to run the business?
-          Leaving a sum of money to a beneficiary and there is insufficient cash in the estate to cover the legacy.

Conditions that are unlawful, immoral, contrary to public policy, against the norms or values of society, discriminating on the base of race, gender or religious grounds, is not feasible, i.e.:
I bequeath my estate to X on condition that
·         she robs a bank or divorces her husband.
·         she does not marry someone from another race or religion.
Another actual example is where a deceased person made provision for a trust in her Will, but appointed no trustees.  The deceased left a property to her grandchildren of whom some were still minors.  Even though she already had grandchildren, her own children were young enough to still have more children.  In other words, there were an unconfirmed number of beneficiaries.  It could only be confirmed when the last of her own children died or a doctor confirmed that they could have no more children and only thén can the property be transferred to the intended heirs.  This bequest was unpractical and not feasible at all.  Because no trustees were appointed in the trust, the property could not be transferred to the trust either.
The following questions should always be asked when making a bequest:
  • Who is going to take responsibility for such assets?
  • Who is going to control the provision?
  • Is it enforceable?
  • Is it practical?
In short, whatever bequests are made in a Will should be considered very carefully.  Although bequests are usually an emotional affair, one should look outside the box for that moment and make sure the decisions that are made is practical and feasible.  If one, however, decides to make a specific provision, think about it thoroughly and logically and state what would happen should the intended heir not comply with the condition of the provision.
Robert Louis Stevenson was a celebrated Scottish artist who wrote amongst other, The Strange case of Dr Jekyll and Mr Hyde and Treasure Island.  In 1981, he learned that the 12-year old daughter of Henry Clay Ide – then U.S. Commissioner of
Somoa where Stevenson lived – was unhappy that her birthday fell on Christmas Day.  He sent a legal document to her father in which he donated his birthday of 13 November to Annie H. Ide as he has attained an age where he had no further use for a birthday of any description. 
The provision was that she took care of it with “moderation and humanity…the said birthday not being so young as it once was”.

Until next time.
“The Legatus Times” Team

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