Newsletter 36 (Jul 2019)
Dear Colleague
Take one day at a time.
Today, after all, is the tomorrow you worried about yesterday.
Billy Graham
Just another lesson to live positively every new day - a new opportunity to achieve your dreams and be whatever you want to be. In the words of Mae Jemison: “Never limit yourself because of others’ limited imagination; never limit others because of your own limited imagination.” Go for it, whatever the “it” in your life may be!
It is not uncommon for some testators to leave a mark on life by making bequests to an organisation or charity. This bequest may be life-changing for someone else, leaving the world a better place. As discussed in our June 2019 edition, the first charity we will discuss briefly is:
The Children’s Hospital TRUST
This charity is an independent non-profit organisation (NPO) established in 1994. The trust acts as the fundraising arm of the Red Cross War Memorial Children’s hospital based in Cape Town. The late Mr Nelson Mandela said of the hospital: “It is known throughout the world as a centre of excellence or pioneering research and treatment of childhood diseased….” This extraordinary hospital supports a variety of different projects and programs to help advance healthcare exclusively for children in sub-Saharan Africa. The hospital holds the hopes and dreams of desperately ill children and is it the courage of these children and the dedication of the hospital staff that continues to drive the trust to raise funds for this great institution.
The Children’s Hospital Trust has its own PBO number (930 004 493). The trust has a streamlined business approach and is independently audited. This ensures that all money received goes exactly where it is intended to.
Read more about The Children’s Hospital Trust at
https://www.childrenshospitaltrust.org.za/.
CAN AN EXECUTOR BE REMOVED FROM AN ESTATE?
Read more about this in the next edition.
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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:
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The testator must be mentally capable of “appreciating the nature and effect” of their actions.
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The testator must sign the Will in full at the bottom of each page of the Will.
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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.
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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.
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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.
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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.
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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 also co-sign each page of the Will. Two impartial persons are still required to be present to sign as witnesses.
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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 above, 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”.
Unfortunately, it is 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.
The best legacy to leave your loved ones, is a valid, feasible Will. This ensures that this tragic and sorrowful event is not further exacerbated by a lack of preparing for this unavoidable event.
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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: Louis van Vuuren, CEO of FISA
Until next time!
The “Let’s Talk EFBOE” Team
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