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Newsletter 37

Newsletter 37


Dear Colleague

Take one day at a time.
Today, after all, is the tomorrow you worried about yesterday.
Billy Graham
 
Just another reminder to live focused and with a positive attitude, every day.  A new day presents a renewed opportunity to achieve your dreams and be whatever you want to be.  No one can master the rest of their lives in one day, but you can master it one day at a time. Repeat this mastery every day and go for it, whatever the “it” in your life may be! 
 
In the words of Mae Jemison: “Never limit yourself because of others’ limited imagination; never limit others because of your own limited imagination.”  Amongst other achievements, she became the first black American woman astronaut after all!

REMINDERS: 
  • Please return original signed Wills to Legatus Trust for free safe keeping.
  • Remember that each signed Will contributes to your points for this year’s competition.  Talk to your marketer or see Newsletter 39 of October 2019 for the competition rules.
THE CHOC CHILDHOOD CANCER FOUNDATION SA
CHOC is a non-profit organisation made up of caring, committed and passionate people who stand up for and support the well-being of children and teenagers diagnosed with cancer or life-threatening blood disorders and to also support their families.
 
CHOC aims to save lives through early detection and making the journey of those who are affected by childhood cancer, less burdensome through the comprehensive support programmes they offer.
 
Read more on CHOC at https://choc.org.za/ 
 
CAN AN EXECUTOR BE REMOVED?
Read more about this in the next edition


WHAT CONSTITUTES A VALID WILL?
 
Any person over the age of 16 can make a Will.  According to the Wills Act of 1953, the following conditions apply before a Will can be valid:
  • The testator must be mentally capable of “appreciating the nature and effect” of their actions. 
  • The testator must sign the Will in full at the bottom of each page of the Will. 
  • Two competent witnesses must be present when the Will is signed.  They must be over the age of 14 and be able to give evidence in a court of law. 
  • These witnesses must be impartial, in other words, not stand to inherit from the Will or be a spouse of a beneficiary in the Will. 
  • Persons who are nominated to hold a position such as the executor, trustee or guardian cannot act as witnesses either, including such a person’s spouse. 
  • Both witnesses must be present when the testator signs the Will and must also sign in the presence of each other.  They must sign the Will in full on the last page together with the testator. 
  • If the testator can only sign by the making of a mark, it must be made before a Commissioner of Oaths who cannot sign as a witness as well.  The Commissioner of Oaths must co-sign each page of the Will. Two impartial persons must still be present to sign as witnesses. 
  • Any deletion, addition, alteration or interlineation must be validated with signatures by the testator and two witnesses.  These witnesses need not be the same ones that signed with the testator on the last page of the Will but must all be present at the same time. 
There should be no excessively large open spaces between the paragraphs of the Will or above the signature of the testator/testatrix as this leaves the document open to fraudulent actions.
 
If a Will does not meet all the requirements of the law, the Wills Act stipulates that a court can order the Master of the High Court to accept it for the purpose of creating and settling a deceased estate if the court is satisfied that the document “was intended to be the testator’s Will or an amendment of the Will”. 
 
It is unfortunately costly to approach the court for relief and places this option out of reach of a lot of people if the Will is invalid. This just adds to the burden of bereaved relatives or friends at a time of great sorrow.
 
One of the best legacies to leave to loved ones, is a valid and feasible Will.  This will ensure that this tragic and sorrowful event is not further exacerbated by a lack of preparing for this unavoidable event.


WHEN DOES AN HEIR BECOME THE OWNER OF A LEGACY?
 
When does an heir become the owner of a legacy? There is a misconception that an heir becomes owner of whatever inheritance comes their way upon the death of the benefactor (the testator who signed the Will). This is a myth. 
 
The executor of the deceased estate takes ownership of the entire estate in a fiduciary (caretaking) capacity for the time that the estate is under administration. As determined under the Administration of Estates Act 66 of 1965, the executor is obliged to take control of all estate assets until such time as the estate is fully wound up.  The executor must be completely satisfied that all estate administration cost and liabilities have been paid before the transfer of legacies and inheritances can take place.  The liquidation and distribution (L&D) account must lay open for inspection, be free from objections and approved by the Master of the High Court before ownership of estate assets can be transferred.
 
A recent court case decided by the Eastern Cape Local Division of the High Court of South Africa confirmed this clearly.  Acting judge Albert Beyleveld, granted an order to the executor in a deceased estate to have an heir evicted from a property which had been bequeathed to him in the Will as he did not (yet) own the property and funds were needed to meet a claim by the deceased’s wife, who was also the executor of the estate. 
 
The more complicated court case can be read in full at: https://www.fisa.net.za/court-case-about-the-rights-of-an-heir/
 
Source:  Article by Louis van Vuren, CEO of FISA
 
 
Until next time.
“The Legatus Times” Team


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