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Newsletter 12

Newsletter 12


Dear Colleague
 
The Springboks have proven that the game played at Albany did not define them.  The great match with their narrow loss of 24-25 against the All Blacks in the Castle Lager Rugby Championship match at Newlands in Cape Town is evidence of that.  New Zealand coach Steve Hansen also said that South Africa could be very proud of their excellent performance and that both sides played very well.  A real contest is much more rewarding than an easy win.  South Africans’ pride in our rugby team has been restored greatly and we know what a good rugby team we have.  All that is left to say now, is:  Go Bokke Go, keep on making us proud!
 
 
SIGNING OF WILLS:  A request:  If at all possible, please make use of a ball point pen when signing a Will.  This leaves a clear indention in the paper that identifies the document immediately as originally signed.  Felt-tip and ink pens are very misleading and sometimes make it difficult to identify if the document was originally signed.  We would like to avoid this uncertainty at all cost.
 
 
The role of the Executor of a deceased estate is often misunderstood. Can one appoint a family member? Will there be costs involved? What are the duties of an Executor?  In the next edition we will expand on the role of the Executor.
 
WHAT IS THE ROLE OF THE EXECUTOR IN AN ESTATE?
Read more in the upcoming edition!

 
WHY SHOULD A SIGNED WILL BE RETURNED FOR SAFE CUSTODY?
 
A valid Will is the first step to the eventual administering of an estate.  The Will should be drafted in accordance with the client’s wishes, which should be clear and feasible.  Therefore, it is very important that the Will Application Form is completed thoroughly and correctly.  The next step is the correct signing of the Will.  The most important is:  Where is the Will?
 
On return of the Will to Legatus’s office, the document is checked to make sure it is originally and correctly signed.  All valid Wills are filed in safe custody.
 
Case scenario:  The signed Will was never returned to Legatus’s office, therefore not checked for feasibility nor if it was signed correctly.  No file was opened as we were unaware that the Will was ever signed.  The client passes away and the next-of-kin report the estate, then presenting the signed Will (if they can at all find the originally signed Will).
 
Example:  The deceased made a mark or a thumbprint.  There is a proper certificate from a Commissioner of Oaths, but he also signed as a second witness on the Will.  According to Clause 2(a)(v)(aa) of the Wills Act No 7 of 1973 the Commissioner cannot commission and witness at the same time as he can only occupy one office at a time.  The commissioner also did not co-sign each page.
 
The result:  The Will is invalid and it could become an intestate estate which has to be administered according to the Law of Intestate Succession.  In this case scenario, it will be an invalid Will for two reasons, i.e. co-signing by a Commissioner of Oaths, which is a requirement by law, was not adhered to AND only one acceptable witness signed.  The requirement is that the testator/testatrix sign the Will in the presence of two competent, impartial witnesses.  If there are previously signed Wills, the Master will accept the last valid Will, which can result in other persons benefiting from the Will that was not according to the final wishes of the deceased anymore.
 
These problems would have been identified immediately if the signed Will was returned for safekeeping and the mistakes could have been rectified by having the clients sign a new copy of the Will.
 
Where neither the next-of-kin nor the advisor can trace an originally signed Will and Legatus does not have a valid signed Will in safe custody, that estate could also end up being administered as intestate, which presents a problem.
 
Legatus Trust provides the safe keeping of Wills as a free value-added service to our clients.  It is therefore in the best interest of all parties involved to ensure that signed Wills are returned for safe keeping as soon as possible.

 
CAREL DE JAGER'S WILL RUFFLING FEATHERS IN OUDTSHOORN
 
An interesting case emerged recently where a 115-year old Will was challenged in the High Court in Cape Town.  The Will of Carel de Jager, who died in 1904, stipulated that his properties are only to be left to male offspring in perpetuity.  This proves to be quite a sexist battle in 2017 and leaves a
family at war. 
 
Understandably so, as Carel de Jager was the founding father of the “ostrich capital of the world” and as such the owner of various farm properties in Oudtshoorn.  One of the descendants, Kalvyn, had five daughters and when he died in 2015, his property had to devolve upon his three brothers.  His brother, Johan, who has three sons, already passed away in 2005.  The daughters took the case to court as they felt the wording of the Will was unjust.  The effect of the discriminatory provisions has serious consequences for the daughters because they were disinherited, thereby denied the opportunity to own the property.  The cousins have already inherited a share of the property after Johan died in 2005.  According to the judge, the sisters’ case was by no means without merit, although the cousins have been successful in their opposition. The application was dismissed, the Will still standing firm.  According to the sisters’ lawyer, leave will be asked to appeal very soon.
 
This is a case of a classic clash between the constitution and the right to freedom of testation.  People were advised not to put these kinds of clauses in a Will as it only leads to litigation and really is not acceptable in 2017.

 
Until next time.
“The Legatus Times” Team

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