Newsletter 73 (May 2023)
June is Youth Month in South Africa. In June, we not only celebrate our youth but also the future for our Rainbow Nation, which will be determined and shaped by the youth.
“The working youth is critical to our future. The economy depends on you.
With your hard work and efforts at improving your skills, you can make
our one of the most prosperous nations in the word.”
“Education is the most powerful weapon which you can
use to change the world.”
As Franklin Roosevelt said: “We cannot always build the future for our youth, but we can build our youth for the future.” As it is the youth of today that will shape our future, good values and habits formed while young make all the difference.
Friday, 16 June 2023, is Youth Day and a public holiday.
Enjoy the celebration!
The month of June would not be complete if we did not also pay tribute to all the fathers in South Africa. On Sunday, 18 June 2023, we will be celebrating fathers and the contribution that they make in the lives of their children and to society as a whole.
Happy Father’s Day!
COMPLETING LEGATUS WILL APPLICATION FORMS
We would like our service offering to you to be as efficient as possible. In most cases, the first step is to draft a Will, and that starts with an application form.
To enable our process to run as smoothly as possible, we require your help when completing the application form. It is imperative that the application form is completed meticulously and that any additional instructions are clearly stipulated. This will allow us to offer you a correctly drafted Will the first time around. We urge you to please ensure that identity numbers, names, and surnames are spelt correctly. Please copy these directly from your client’s identity document. It is also good practice to obtain copies of the identity documents of all of the individuals mentioned in the Will and to include these copies when submitting the application form.
In respect of special instructions that pertain to joint Wills, please discuss these special instructions thoroughly with your client(s) and note the instructions in chronological order on the application form:
What should happen if the testator passes away first?
What should happen if the testatrix passes away first?
What should happen in the case of simultaneous demise?
When should special bequests come into effect?
Keep in mind that, should heirs live abroad but they have not formally emigrated and/or have their tax affairs in order, it could cause delays in the payment of the inheritance, as well as in finalising the estate.
If any of the above is unclear, please do not hesitate to contact your Legatus Trust consultant. We appreciate your co-operation and thoroughness in this regard.
NEW LEGISLATION: DO NOT HASTILY DEREGISTER EXISTING TRUSTS
Read more about this in the next edition
‘DE BLOEDIGE HAND ERFT NIET’: PENSION FUND DISTRIBUTION
In our previous newsletter No 69 of January 2023, we addressed the ‘de bloedige hand erft niet’ principle in a short piece on a court case. In this newsletter, we look at a different court case involving this same principle and the extension of its application down the blood line. This particular case highlighted the ‘de bloedige hand’ principle and its application to the distribution of pension funds in this specific case.
The ‘de bloedige hand’ principle holds that no person who unlawfully causes the death of another person can derive any benefit from the Will of their victim. In the case Nel and Others v Netcare 1999 Pension Fund and Others (8142/2019)  ZAGPPHC 423 (24 August 2022), the child of the deceased’s murderer was the beneficiary of a death benefit.
In the events around this case, the deceased’s stepdaughter, Bonolo, murdered the deceased and his wife. Bonolo had a minor child who lived with and was dependent on the deceased and his wife. The deceased nominated his mother and his wife as beneficiaries to his pension fund benefits and, should his mother not survive him, he nominated his wife as the sole beneficiary.
Despite his nominations, the pension fund made their own decision and awarded the entire benefit to Bonolo’s child in terms of Section 37C of the Pension Funds Act 24 of 1956, irrespective of the fact the child’s mother murdered the victim.
The deceased’s siblings contested the decision made by the pension fund and filed their complaint with the pension fund’s adjudicator who ordered a re-investigation of the allocation. After the pension fund conducted their re-investigation, their finding was that the siblings were not dependants of the deceased. The adjudicator thus confirmed the pension fund’s decision. The siblings then launched a further application at the Pretoria High Court to review the decision of the pension fund adjudicator on the basis of the principle that ‘de bloedige hand neem geen erfenis’. They felt that the common law ought to be extended in that the murderer’s child was equally not entitled to benefit.
The Pretoria High Court refused to extend the principle to the child of the deceased’s murderer. Their reasons were:
The ‘de bloedige hand’ principle does not extent down a bloodline. Therefore, it cannot exclude anyone else than the murderer themself from receiving the benefit.
They agreed that the pension fund correctly awarded the benefit in accordance with Section 37C of the Pension Funds Act. Even though the child had no biological link to the deceased, he was factually dependent on the deceased.
The court agreed that the trustees correctly compared the child’s position to that of the siblings. The siblings were not dependent on the deceased, neither were they poor nor needy, and their need was premised on what could be categorised as speculative future contingencies.
The position was that only the culprit, in this case, Bonolo, should be prejudiced by her actions and the judgement be aligned with this position. Any other decision by the pension fund or the court would have been to the detriment of the child despite him being innocent.
CECIL GEORGE HARRIS’ UNIQUE HOLOGRAPHIC WILL
Cecil George Harris was a hardworking Canadian farmer. On 8 June 1948, he was working on his land and accidentally became trapped under his tractor. Harris realised that he would probably not survive the ordeal and used his pocket-knife to scratch a Will onto the tractor’s fender. It read:
“In case I die in this mess I leave all to my wife. Cecil Geo Harris”.
After 10 hours, he was discovered by neighbours who took him to hospital, but he, unfortunately, did not survive. Harris passed away the next day. Even though he told no one about his unusual Will, it was eventually discovered, and the fender was taken off of the tractor and was presented in court. The court ultimately awarded the estate to his wife and determined that Harris created a valid holographic Will.
The tractor-Will is on display at the University of Saskatchewan’s Law Library.
A holographic Will is a handwritten Will created by a testator with no witnesses present. In some countries abroad, it is acceptable, but the requirements of such a Will are very strict. The Wills Act in South Africa does not directly provide for holographic Wills, but the Law of Succession Amendment Act 43 of 1992 allows a court to waive any formal requirements if the court is satisfied that the testator intended for a document to serve as their last Will and Testament.
Until next time!
“The Legatus Times” Team