Newsletter 45 (May 2020)
Some good news under level 4 of the Government’s COVID-19 regulations! Our offices are open for normal day-to-day business, but as per level 4 regulations. Most personnel are still operating remotely. The necessary protocols are in place to ensure a safe and secure environment for our employees and our clients. Despite a few hindrances, you can be assured of our dedication and continuous effort to deliver an excellent service to you.
Are your clients’ Wills in order
Winter is approaching quickly and so some of your clients are also in the winter season of their lives already. There is no better time than NOW to ensure that their Wills are in order.
Make use of the usual channels for requesting the drafting or amending of Wills and the reporting of estates
. We are ready and eager to be of assistance to you.
Courier are also available again. If there are no other arrangements in place regarding the delivery of signed Wills to EFBOE, they can be couriered to your allocated EFBOE service office using one of the two following addresses:
Efficient Board of Executors, Third Floor, Roan House, 263 Kent Avenue, Randburg, 2194;
Efficient Board of Executors, Third Floor, Imperial Terraces, Carl Cronje Drive, Bellville, 7530.
Please discuss the delivery of original signed Wills with your EFBOE marketers, Dawie Roux or Marie Eksteen.
Unfortunately, our services regarding the administering of estates are still hampered because of limited service delivery by the Master’s office, Deeds office, SARS and several other businesses which are not fully operational yet. This is causing a ripple effect of delays which in turn is creating an enormous backlog in the workplace.
The Master’s Office is still operating with minimum officials on duty. Therefore, only mails as provided on their website must be used to curb the number of people entering their offices. Because they are not fully staffed, it will take time for them to deal with new matters, as well as the backlog of old matters. This requires a great deal of patience on everyone’s part as normal turnaround times will unfortunately not be adhered to at this moment.
JHB: 010 210 5200 / 086 172 2626
CPT: 021 914 0835
DOES THE PROCEEDS OF A LIFE POLICY FORM PART OF A COP MARRIAGE JOINT ESTATE?
Read more about this in the next edition.
IMPORTANCE OF AMENDING A WILL AFTER A DIVORCE
One of the most important tasks for newlyweds is to tend to their estate planning. The estate planning will depend on what form of marriage they chose and what they want to happen with their assets. This should include the drafting and signing of a Will. But what if this marriage ends in a divorce?
According to Statistics SA’s latest data, released in March 2019, on divorce orders between 2016 and 2017, it shows an increase in divorce rates.
In 2017 there were 25,390 completed divorce forms processed.
In 2016 there were 25,326 completed divorce forms processed.
An increase of 0.3%.
Four in ten divorces of those processed in 2017 were marriages that did not reach their tenth wedding anniversary, a staggering 44.6%.
This is alarming and the consequences of divorce takes a toll on all the parties involved. One thing that must be addressed in these circumstances, is the changing of a Will after this heart-breaking turn of events.
Let us look at the following case study:
The couple married in community of property, but the husband was a divorcé. After the marriage, the husband died without leaving a new Will. Under his previous marriage, the husband had a valid Will, which was never rescinded. His new wife, the widow, only found out about this after his death. According to the previous Will, his ex-wife was the sole heir of his estate. She approached an attorney to determine how this affected her and if she still had a right to his whole estate.
The main legal consideration in this matter: How long ago did the testator get a divorce?
Section 2B of the Wills Act 7 of 1953 determines that if an individual dies within three months of becoming divorced and has a Will predating the date of the divorce, the Will would be read as if the previous spouse had died before the date of the divorce. Except if it is clear from the Will that the testator intended for the ex-spouse to benefit despite the divorce. This clause grants the testator a period of three months’ grace to amend the Will after the divorce. Have the testator not amended the Will in this period, the Will would still be valid and administered according to the provisions in the Will.
In the light of the above, the following questions need to be answered:
Did the husband die within three months of the date of his divorce from his previous wife? Then his ex-wife would have no right or claim to any inheritance from his 50% portion of the joint estate.
Did the husband die more than three months after the divorce? Then the previous Will will be valid and stand as is and will be administered according to the stipulations thereof.
The latter has dire consequences for the inheritance of the new wife at the time of death, even if the couple were married in community of property.
What does it mean to be married in community of property
In South Africa, it means that the surviving spouse will have a claim to 50% of the value of the joint estate. The actual value of the estate is thus reduced to 50%. The division of the estate only takes place after all the debts of the deceased estates have been settled.
In this specific case, the wife and deceased husband owned everything in the joint estate in equal shares. There are some exclusions, for instance donations or bequests. On the husband’s death, the joint estate is divided, and she gets 50% of the joint estate in terms of matrimonial property law. The ex-wife will inherit the amount available for distribution in terms of the Will. Thus, neither parties will get everything.
If the deceased signed a new Will, revoking all previous Wills, after they got married, bequeathing his whole estate to his new wife, she would have inherited his full 50% share of the joint estate, thus be the owner of everything in the estate. If he died intestate (without a Will) and they had children, she would have inherited R250 000 or a child’s share of his estate, whichever is the greatest. If there were no children, she would have inherited his whole estate. If the value of the estate were R250 000 or less, she would have inherited the full amount available for distribution.
This is just a wake-up call to anybody who gets a divorce. If circumstances change, a Will should always be amended to address these changes.
LESLIE ANN MANDEL’S AVIARY FOR BIRDS
It is no secret that people love their animals. But some are more passionate about their animals than others and their love inspire them to go to great lengths to consider their pets’ lives after they die. The childless millionaire, Leslie Ann Mandel, was such a person.
She had 32 cockatiels who lived freely in an aviary on her East Hampton property. She also had a rescue dog named Frosty and a cat named Kiki. Their wellbeing was foremost on her mind and she made special provision for them in her Will. All her birds, as well as her cat and dog, were named on the second page of her Will. She instructed that $100,000 of her $5.3 million estate be placed in a trust which was to be managed by her stepson to care for her pets for the rest of their natural lives. She left detailed instructions for the care of the cockatiels, but no specific instructions for the cat and dog.
Leslie Ann died in June 2015 at the age of 69, after being treated for kidney stones in hospital. Her last Will was drafted in 2005 and numerous handwritten notes led to a court case between her husband and her sister. In 2006 there were numerous places where her husband’s name was replaced with that of her sister without complying to the correct witnessing requirements according to testamentary law. Just another reminder that your clients should review their Wills regularly and that all changes are made according to the letter of the law.
Until next time!
The “Let’s Talk EFBOE” Team