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Newsletter 43

Newsletter 43


Dear Colleague
 
Winter is almost over and with spring in the air, it is a lovely reminder of how beautiful change can truly be. South Africa has moved up to level 2 under the lockdown regulations, which just confirms once again that negative situations must at some stage turn around into positives, just like the constant change of the seasons.
 
In the words of Peter Marshall:
“When we long for life without difficulties, remind us that oaks grow strong in contrary winds
and diamonds are made under pressure.”

 
IMPORTANT NOTICE: WILL APPLICATIONS
 
The Will application is the first step in preparing a correct and professionally drafted Will. To deliver a quick service to you, the application form should be completed thoroughly. But most importantly, the information should be legible

If your handwriting is not clear or difficult to read, please make use of our electronic version. Click here for an electronic version of the application form. If you do not have a personalised printable version yet, click here to download a generic form. Complete your registration details in the space provided at the top of the forms. It is preferable to make use of a personalised application form though, which can be requested from our office.
 
We appreciate your adherence to these requests as it will ensure a quick and hassle-free service to you.
 
Remember to return original signed Wills to Legatus Trust for safe keeping. Courier services are available again and the office is open for business.
 
  
HOW TO PLAN FOR MINORS IN A WILL
Read more about this in the next edition

DOES A POWER OF ATTORNEY (POA) CEASE AT DEATH?
 
In law it is a general principal that no person may act on behalf of another unless the necessary authority was given to do so.  This authorization is referred to as a power of attorney (POA).
 
There are two parties involved in a POA: 
 
  • the principal - the person who grants the authority/empowers another person; and
  • the agent - the person entrusted with the authority.
The POA is a formal document that gives power to a specified person (the agent) to act on behalf of another person (the principal).  The agent can act in specified ways, like financial matters, or perform juristic acts on behalf of the principal.  The agent can have broad legal authority or limited authority to make legal decisions about the principal’s property, finances or medical care.
 
Certain actions are set out in a POA and the signing thereof does not only authorize the agent to act, but also informs third parties that the principal intends to be bound by the acts performed by his/her agent.  The agent may perform all or some of the actions set out in the POA on behalf of the principal who will be bound thereto, but not more. The agent may only perform acts that the principal has the legal capacity to perform. A POA gets automatically and legally revoked when the principal becomes mentally incapacitated, insolvent or dies. Therefore, when a person dies, that person is no longer capable of performing or concluding any juristic acts and the authority conferred to the agent to perform any actions also ceases.
 
Irrespective of the wording of a POA, which may include sections to cater for the death of the principal, the POA will no longer be in force.
 
Case study:  A retired gentleman travelled overseas regularly which caused him to be out of the country for long periods of time.  Therefore, he signed a POA in favor of his nephew.  This gave the nephew the authority to manage the sale of his beach house on his behalf while he was away.  The nephew received a good offer, accepted it and signed the agreement of sale.  Before the property had been transferred, his uncle died. The buyer wanted to continue with the transaction, but the nephew was unsure if he could still represent his uncle after his death. He approached an attorney who responded as follows:
 
The attorneys informed the nephew that the POA had ceased on the death of his uncle.  The estate needed to be reported to the Master of the High Court and an executor be appointed to administer the estate.  However, since the agreement of sale was signed before the uncle died, the POA was valid at the time of the transaction and the contract will be binding on the executor, subject to certain exceptions.  The executor will now have to take over the responsibility to honour the agreement of sale on behalf of his uncle and do the necessary to transfer the property to the buyer.  The nephew, however, has no more legal rights to act on behalf of the deceased anymore.
 
Sources:  https://www.news24.com/news24/southafrica/local/express-news/does-power-of-attorney-lapse-in-the-event-of-death-20180417
https://www.tathamwilkes.co.za/NewsResources/NewsArticle.aspx?ArticleID=2381


SMOKING GUN
 
We placed some interesting endowments in the newsletter before, but this is one of those that makes one lift an eyebrow and ask the question: Should conditions in Wills that seek to “punish” benefactors be allowed or entertained?
 
Samuel Bratt’s Will is an example of this.  He loved to smoke cigars, but his wife did not share his passion.  She prohibited him from smoking cigars because she considered them to be noxious. This obviously really rubbed him up the wrong way and he used his Will to get even.  When he died in 1960, he left his entire estate to his wife on one condition: She had to smoke five cigars a day for the remainder of her life.
 
This condition, of course, posed a great risk to her health and was probably one of those unenforceable conditions. Mrs Bratt would have most likely received her inheritance anyway.
 
 
Until next time.
“The Legatus Times” Team



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