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Newsletter 32

Newsletter 32


Dear Colleague
 
Imagination is more important than knowledge.  For knowledge is limited to all we now know and understand, while imagination embraces the entire world, and all there ever will be to know and understand.
Albert Einstein
 
Imagination allows one to move towards a dream which might seem far-fetched at the time.  After all, someone imagined electricity, flying in planes, computers and cell phones way before anyone thought these things were possible.  When something is already imagined and it transpires into action, a dream can become a reality.
 
If you can imagine it, you can achieve it. 
If you can dream it, you can become it.

William Arthur Ward
 
A dream doesn’t become reality through magic; 
it takes sweat, determination and hard work.

Colin Powell
 
The next charity in our series on NPOs is The Sunflower Fund – Hope begins with you.
 
The Sunflower Fund
The Sunflower Fund was founded in 1999.  It is a donor recruitment centre and registry. They fight blood diseases like leukemia through the recruitment of stem cell donors and maintain a registry of potential donors committed to helping anyone in need of a life-saving stem cell transplant.   They raise funds to cover the cost of education and awareness about the need for donors and the process to become a blood stem cell donor as well as to cover the cost of the HLA tissue-typing test involved in the recruitment of donors.
 
They also maintain a patient support fund to assist patients who are unable to afford costs associated with getting to transplant, as well as being actively involved in creating a platform for support structures to assist patients, families and communities.
 
Read more about The Sunflower Fund at www.sunflowerfund.org.za
 

PITFALLS WHEN DRAFTING A WILL - Part 1
Read more about this in the next edition.


IS A DIY-WILL SUFFICIENT?
 
Drafting a Will can bring out the best intention in people, as it gives them a chance to share with loved ones what they have accumulated and what they eventually will no longer need.  For example:  leaving prime agricultural farmland to children. 
 
Or it can also bring out the worst in those who want to manipulate the behaviour of their heirs.  For example:  leaving a sum of money on condition that the heir complies to certain stipulations, for instance not wearing make-up, not using a cell phone or be drug-free for a specific period after the benefactor passes away.
 
Regardless of the motivation, there are plenty of pitfalls when drafting a Will: what is said, how it is said and whether the instructions in the Will are feasible. 
 
For that reason, a DIY-Will is potentially dangerous and should be avoided.
 
If a Will is invalid, it could have painful, unintended consequences.  It may not be able to achieve what was intended and beneficiaries could end up in long and expensive court cases, as they battle over the interpretation of the words or actions.  When money is involved, some beneficiaries or potential beneficiaries will look for any loophole to exploit.
 
It is possible that a DIY-Will, whether it is self-drafted or the template type available online or from stationery stores, can meet all the requirements of a valid Will, but knowledge of what constitutes a Will is not enough.  The drafter also needs to be well versed in the effect of common law, as well as laws on the statute book and the implications of the proposed Will on assets, liabilities and cash flow in an estate.  Over the years, laws have become more stringent and it is no longer that easy to just compile a slapdash document in the hope that it will serve its purpose.
 
For instance, in the example mentioned above of leaving prime agricultural land to children, the farm owner would need to know that agricultural land cannot be sub-divided without the permission of the Minister of Agriculture.  In the second example, the conditions are toothless as it would be difficult to enforce.  The beneficiary will most likely still inherit, anyway.  But there are ways to add workable conditions to a Will.
 
Unwary drafters of Wills may think that if the estate is small, the division is straight forward and the language used is simple, that there will be no problems.  Unfortunately, the unknowns stay unknown and are a minefield for the person who does not understand all the laws simultaneously at play.
 
Template type Wills may work in many circumstances, but with a template Will there is more of a chance of the testators and witnesses failing to comply with the legal formalities in executing the Will.  They also may not address specific circumstances.  It could be argued that it could work nine out of ten times, but it is the tenth where an expert was needed, which presents the problems.
 
If someone is brave enough to draft their own Will, speaking to a professional first will most likely make them reconsider.  Terms like “thoroughbred” and “bullet-proof” have been used when speaking of Wills, as it is one of the most important documents one will sign in a lifetime.  With the knowledge required to draft a proper Will, it pays to consult Legatus Trust to assist.
 
Some of the common mistakes made in the drafting of a Will are:
  • Not sticking to the law
  • Not revoking previous Wills
  • Non-nomination of an executor
  • Not providing for the security of the estate assets
  • Not considering debts linked to assets
  • Not providing for children/minor heirs or heirs with special needs properly
  • Inserting stipulations that cannot be met or monitored
  • Inserting clauses that are against public policy
  • Not reviewing a Will regularly
  • Not revising the succession clauses
  • Lack of estate planning, estate duty and the residue
In the next edition, we will elaborate more on the common mistakes listed above.
 

THE “EASY RIDER” STORY
 
Divorce is a traumatic affair.  It is wise to update estate planning documents during a divorce process.  In the case of Dennis Hopper, the Easy Rider star, it proved to be quite the clever thing to do.  He did not have such an easy ride during the last few months of his life.
 
In 2010 he passed away from cancer at the age of 73, in the middle of a messy divorce-war with his fifth wife, Victoria Duffy-Hopper, who was six years younger than his youngest daughter.  The battle was more about his estate than anything else and the case turned into an even bigger battle after his death.
 
Even though Dennis died before the battle was concluded, he had already taken steps to safeguard his heirs and disinherit Victoria.  He had changed his life insurance policy by removing Victoria as beneficiary and made sure she was no beneficiary in his Will or trust.  In terms of the prenuptial agreement, she would have received a quarter of his estate if they were still living together and married at the time of his death. Probably the reason why she refused to move out during the proceedings.
 
The estate planning documents left her virtually nothing.  Two years of litigation followed, where she tried to claim from the estate.  In the end she received 17% (about $40 million) of the estate, which formed part of the 40% share in the trust that was already left for Victoria’s young daughter with Dennis. 
 
While the fight started ugly, it quieted down quickly and most of Dennis Hopper’s heirs received what he wanted them to, because he had the foresight to proactively update his estate planning documents during the divorce proceedings, instead of waiting for them to be over.  He made sure that 60% of his estate still passed to his adult children, yet his minor daughter with Victoria was protected too.  This serves as a great lesson for everyone to remember to update estate planning documents when important life events happen or are about to happen, such as marriage, children born or divorce.  Had he not taken these steps, all the heirs would have paid a much steeper price.
 
 
Until next time.
“The Legatus Times” Team


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