Newsletter 57 (Jun 2021)
Dear Colleague
“No one is born hating another person because of the colour of his skin, or his background, or his religion.
People must learn to hate, and if they can learn to hate, they can be taught to love,
for love comes more naturally to the human heart than its opposite.”
Nelson Mandela
Next month we celebrate the remembrance of Nelson Mandela, on 18 July. He was a wise and experienced man, revered by many, earning worldwide recognition and fame, to this day. He bestowed on the world numerous inspiring and powerful quotes that could enrich any life, if adopted and lived by:
“I learned that courage was not the absence of fear, but the triumph over it.
The brave man is not he who does not feel afraid, but he who conquers that fear.”
“Forgiveness liberates the soul. It removes fear.
That is why it is such a powerful weapon.”
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“A father is neither an anchor to hold us back
nor a sail to take us there
but a guiding light whose love
shows us the way.”
We hope that every father was celebrated and had a very
special day on 20 June.
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IMPORTANT NOTICE REGARDING EXECUTOR FEE DISCOUNTS:
Please take note that the negotiated discounts reflected in the Value Proposal document on the standard 3,5% executor’s fee, depends on the nature and value of the estate. The sliding scale discounts are NOT AUTOMATICALLY standard to all estates. It will only come into effect should a client request it and qualify for a discount on the executor’s fee. This request must then be submitted with your Will application. Any discounts outside the scope of the proposal must be approved by Willem Basson. Send an e-mail to willem@efw.co.za with the details of the request for consideration.
Life is uncertain. Therefore, nothing should be taken for granted. We urge you to ensure that your clients’ Wills are updated on a regular basis, at least once a year, to ensure circumstantial changes have been considered. It is normal for changes to take place during a person’s lifetime, that is why a Will is a living document. Your role as an advisor is very important in keeping clients’ testamentary needs and status up to date. The fragility of life is especially highlighted in the current circumstances.
A client could have gotten married or divorced, a new family member may have been born, an heir may now be deceased – these are just some of the many changes that could happen. They happen all the time and need to be considered in updating your clients’ Wills on an evolving and progressive basis. It is vital that your clients leave detailed instructions in their Wills to ensure their remaining assets are dealt with according to their wishes. Updating a Will makes it easier to execute, and to avoid conflict and stress between family members. It is an important part of your clients’ financial planning and should not be put off until a life-threatening event takes place. Careful planning is essential
DELAYS IN SERVICE DELIVERY
Read more about this in our next edition
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FIVE REASONS A WILL COULD BE CONTESTED
It is often said that a Will is one of the most important documents one would need to sign in a one’s lifetime. And rightfully so. It is important to create a valid Will to ensure one’s assets (possessions and finances) are distributed according to one’s wishes after one passes away. Unfortunately, even if there is a valid Will, signed and witnessed correctly, there is still a chance that someone could contest it. According to probate law, Wills can only be contested by spouses, children or people who are mentioned in a Will or a previous Will (if not revoked). A Will must be contested within six months after death.
The following are reasons why a Will could be contested:
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Failing to update a Will after a major life event.
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Failing to revoke previous Wills.
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When a deceased’s mental state is questioned.
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If the Will contains fraudulent terms or shows signs of undue influence.
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Some terms in the Wills are illegal.
1.
Failing to update a Will after a major life event
Once a Will is created, it is often stored away with the idea of having it out of sight and out of mind. Most people do not want to linger on the thought of death. This is not a wise approach to such an important document. A Will should be revised on at least an annual basis. Should major life events take place in between (like, getting married or divorced, having a biological or adopted child, receiving a large endowment, or obtaining a significant amount of real estate), the terms of the Will should be re-evaluated. Not taking these changes into account can have far-reaching consequences on the estate. Often people undergo changes in life and neglect to amend their Wills. Changes like:
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People getting married and having their own children, but never changing the beneficiaries in their Wills to provide for each other and their own children, still having parents or siblings as beneficiaries.
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People getting divorced, but never removing their ex-spouse from their Will. If the Will is not revised during the three months’ grace period awarded after the divorce, the existing Will comes into effect again.
2.
Failing to revoke previous Wills
It is common that one to create several Wills during one’s lifetime. Revocation is a very important part of a Will. There should be an express revocation of all earlier Wills or codicils in one’s latest Will. Should this clause not be in the latest Will, it is a general rule confirmed by the court that where a testator dies leaving more than one Will, the Wills must be read together and reconciled. The provisions of the earlier Will are deemed to be revoked in so far as they are inconsistent with the provisions of the later Will. That is why it is important to have a Will drafted by a professional who will ensure that every Will includes a revocation clause. If a Will is not correctly drafted and executed it can result in a dispute, which can end up in the Supreme Court or even the Constitutional Court - at great expense to all parties involved. Even though a Will does not need be dated according to law, it is still important to date the Will to determine which Will reflects the last wishes of the deceased.
3.
A deceased’s mental state is questioned
A Will may be contested if there are suspicions that the testator lacked the mental capacity or was not of sound mind when the Will was signed in the first place. Mental capacity refers to the fact that the testator was mentally healthy when they signed the Will. Sound mind refers to the fact that the testator was able to understand the contents of the Will and used logic and reason to create it. That is why it is important to create a Will when a person is still fit and healthy, and not to wait until there is a serious illness or a person is close to death. In these circumstances it will be easier to dispute the validity of the Will on the grounds of illness, old age or mental incapacity, as it will be easier to suggest that the testator’s state of mind may have altered.
4.
If the Will contains fraudulent terms or shows signs of undue influence
If it seems as if the Will has been tampered with and is not genuine in some way, there will be grounds to contest the validity of the Will. Fraud or undue influence could mean that:
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A signature could have been forged. The signature will then have to be authenticated by experts.
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Paragraphs or pages were taken out or changes made without authorisation, i.e., items crossed out, edited or added without being validated by the correct signing requirements.
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A particular clause or request in the Will could be invalid.
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It is evident that somebody, maybe a beneficiary, exercised undue influence and manipulated the testator to endow them with a larger inheritance.
5.
Some terms in the Will are illegal
Any stipulation in a Will which contradicts the laws of the land gives way to contestation. For example:
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To leave prime agricultural land to be sub-divided amongst beneficiaries. This cannot be done without the permission of the Minister of Agriculture, which would not come easy (or at all).
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To establish a trust which will only provide for boys/girls of a specific race, a specific religious group, or perhaps only biological and not adopted children. These are discriminatory provisions and will not be allowed under the laws of the country.
Stipulations or provisions which go against good moral values or are discriminatory in nature based on race, religion or gender would be invalid. Attempts to rule from the grave or even downright illegal stipulations, are all grounds on which a Will can be contested. For example:
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A beneficiary can only inherit if they attend a university and acquire some prestigious degree.
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A person can only receive a benefit if they burn down a specific store or cause somebody any type of harm.
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A beneficiary can only inherit if they do not get married until a specified age, or not get married at all, etc.
It is not difficult to avoid contestation. Update your clients’ Wills regularly, keep up with the laws of the land, and be responsible regarding the contents of a Will.
Source:
www.lawdepot.com/blog/5-reasons-your-will-could-be-contested/
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KING OF THE SMOKERS
Imagine being so besotted with tobacco that specific instructions regarding smoking would be stipulated in a Will. The story of the wealthy Dutch tradesman, Mr Klass, is for all the avid smokers out there. Mr Klass was known as the “King of the Smokers”. Unsurprisingly, he made more than a few smoke-related requests in his Will:
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That all smokers in the country be invited to his funeral;
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That everyone at his funeral be given tobacco and memorial pipes engraved with his name;
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That the pipes be kept alight throughout the funeral service and then emptied out onto his coffin;
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That his oak-coffin be lined with the wood of his cigar boxes; and
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That his favourite pipe with a box of matches, a flint, steel and some tinder be buried with him as “there was no knowing what might happen”.
Until next time!
The Let’s Talk EFBOE Team
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