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Newsletter 74 (Jan 2023)
Newsletter 74 (Jan 2023)

Dear Colleague
 
Compliments of the new year! We hope that 2023 will present you with many new and exciting business opportunities, and that all of your endeavours will be successful. On a personal note, we wish you happiness, peace and resilience when facing any challenges that the new year may bring.
 
Tony Robbins said that “the only impossible journey is the one you never begin”. Although we always wish for the best at the start of a new year, there will be times that will cause you to feel apprehension or even fear. In these instances, we encourage you to identify and to face whatever obstacle lay ahead so that you can take the first step towards overcoming it. May 2023 afford you the courage to not just take small steps when overcoming challenges, but to take giant leaps towards success!
 
“It's your road and yours alone, others may walk it with you,
but no one can walk it for you.”

 
“If you can’t fly then run, if you can’t run then walk,
if you can’t walk then crawl, but whatever you do you have
to keep moving forward.”
Martin Luther King Jr.
 
“To get through the hardest journey we need take only one step at a time,
but we must keep on stepping.”
Chinese proverb
 
LIFE FILE
We remind you that you have access to an excellent, comprehensive Life file that is available on SharePoint. Please make use of this document. Not only is it a brilliant marketing tool, but it is also of immeasurable value to your clients. It is to your clients' benefit to have all of their personal information together in one place, making everything so much easier for their next of kin as well as for estate administration. You can also request a copy of the Life file from Marietjie van Zyl (Pretoria) or Jean Nel (Langebaan).
 
POWER OF ATTORNEY ESTATES
Keep an eye out for power of attorney estates where EFBOE can act as an agent on behalf of the nominated executor who may not have the experience or know-how to handle estate administration. A power of attorney estate can also be an intestate estate – an estate with an invalid Will or no Will at all. Keep in mind that the fees earned on these estates also contribute to your points that accumulate towards our 2023 EFBOE competition.
 
We wish you a Happy Valentine’s Day on 14 February 2023!
We hope that Valentine’s Day will be a celebration of love and happiness,
and that many special memories will be made!
_____________________________________________________

SIGNED PROPERTY SALES AGREEMENT: WHAT HAPPENS WHEN THE SELLER PASSES AWAY BEFORE REGISTRATION
 
As a result of the recent spike in interest rates caused by the government’s fiscal policies, the property market will undoubtedly be dealt a blow and some homeowners will struggle to afford the increase in monthly expenses. That being said, owning one’s own home is still a very exciting prospect and a dream for many.
 
Buying a new home comes with a lot of known and unknown stress. One risk that cannot be foreseen, is the death of the property owner/seller after a sales agreement has already been signed.
 
The question that immediately arises is: What happens to the buyer’s sales agreement to buy the property when the owner passes away before an immovable property has been legally transferred into the buyer’s name?
 
The good news is that the death of the seller does not invalidate a sales agreement, nor does the agreement lapse. The bad news is that the transaction will probably take longer to finalise. It will also have to be determined if the agreement was validly concluded and if all of the requirements of a valid contract were met. It will then be the duty of the executor to enforce the agreement if everything is in order, and to ensure that the agreement will remain in place.
 
The executor
After the death of the seller, the sales agreement of the immovable property will have to be paused. The death of the seller must first be reported to the executor, who in turn, will have to wait to be appointed by the Master of the High Court as the executor of the estate.
 
The duty of the executor is to firstly determine whether the estate is solvent, and whether the sales agreement is valid and binding. The executor will then have to obtain a certificate from the Master, which will only be provided if there are no objections to the property, i.e. if the owner has existing debts.
 
Power of attorney
The power of attorney signed by the deceased seller in favour of the conveyancing attorney will become invalid if the registration did not take place yet or if the matter has already been lodged at the Deeds Office.
 
After reporting the estate to the Master, the executor must sign a new power of attorney in favour of the conveyancer to proceed with the sales agreement. In terms of the Administration of Estates Act 66 of 1965, the new power of attorney must also be endorsed by the Master of the High Court.
 
Consent of heirs
Regarding immovable property in the deceased’s estate, the heirs must, normally, consent to the sale of the property in the estate. In this case, where a valid and a binding agreement were already signed before the death of the seller, and the registration was not finalized yet, the consent of the heirs is no longer required. Should the heirs object to the sale, the buyer can approach the court to enforce the sales agreement.
 
Even though the passing of the seller is an uncontrollable factor, it is not an insurmountable obstacle. At least it does provide peace of mind to know that if a property transaction has not been finalised yet, the transaction can still come to fruition. It is, however, important to always ensure that the content of the agreement is valid and binding, and meets all the requirements of a sales agreement.
 
Source:
https://www.golegal.co.za/property-owner-death/
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Court case: “Fraud unravels all” principle
 
In the court case Botha N.O. v Leboko-Radebe and Others [2022] ZAGPJHC 724, the first respondent (L) was married to J until their divorce in 1997. J bought a fixed property in 2002, which was then registered in his name in the Deeds office. J passed away in April 2004. In 2005, L approached the Master of the High Court in Johannesburg and falsely stated that she was the deceased’s surviving spouse.
 
This resulted in letters of authority duly issued to her. She then obtained a loan from Absa in 2006, had a mortgage bond registered over the property, and had it transferred into her name.
 
In 2015, the Master was made aware of the fraud and the applicant (B) was appointed as the executor of J’s estate. B proceeded with the application to have the transfer of the property to L cancelled. L opposed the application.
 
The ruling in this case was based on the principle that “fraud unravels all” and the court ruled that the fraud committed by L cannot be allowed to stand. The court ordered that the property be returned to J’s deceased estate and instructed the Registrar of Deeds to cancel the transfer of the property to L.
 
For more information on this case, go to https://www.fisa.net.za/court-case-about-fraud-and-a-deceased-estate-botha-n-o-v-leboko-radebe-and-others-2022-zagpjhc-724/
 
Until next month!
The Let’s Talk EFBOE Team
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