The Wills and Estates Company - Pty Ltd

10/02/2024

18/04/2023

Having a will is important in South Africa for several reasons:

Control over the distribution of your assets: With a will, you can control who receives your assets when you pass away. Without a will, your assets will be distributed according to South African intestate succession laws, which may not align with your wishes.

Minimizing conflict among heirs: A clear and detailed will can help minimize potential disputes among your heirs and reduce the likelihood of litigation.

Appointing guardians for minor children: If you have minor children, a will allows you to appoint a guardian for them in the event of your death.

Saving time and costs: A well-drafted will can help streamline the process of administering your estate and potentially save your heirs time and money.

Tax planning: A will can also help with tax planning, as it can allow you to structure the distribution of your assets in a way that minimizes tax liability for your heirs.

Overall, having a will in South Africa is an important part of estate planning and can provide peace of mind that your assets will be distributed according to your wishes after you pass away.

06/09/2019

Your Will: What You Can a

“Where there’s a will, I want to be in it” (Anon)

Your will (“Last Will and Testament”) is quite possibly the most important document you will ever sign. Without a properly-executed will you put your loved ones at risk of financial and emotional hardship, you forfeit your right to nominate who administers your deceased estate, and most importantly you forfeit your right to choose who inherits what from you.

But just how wide is your right to choose? Can you leave anything to anyone? Is your freedom to decide limited in any way? Must your executor blindly carry out your last wishes?

Your fundamental right to “freedom of testation”…

For centuries our common (i.e. unwritten) law has recognised “freedom of testation” as a basic principle, subject only to being balanced against a restricted list of specific limitations.

Moreover our courts have confirmed that this freedom is supported by our Constitution. To quote the Supreme Court of Appeal (SCA): “The right to dignity allows the living, and the dying, the peace of mind of knowing that their last wishes would be respected after they have passed away.”

…and the limits

Even as far back as Roman times there were limits to freedom of testation, and these have grown over time to incorporate the following general principles against which your will’s validity can be tested –
You cannot have anything in your will that is illegal, immoral, or “against public policy”, or impossible to fulfil, or so vague as to be unenforceable.

Legal obligations for maintenance of dependents and of your “surviving spouse” (where he/she qualifies) will generally take preference over bequests.

How you were married could well be relevant. Thus if you were married out of community of property with the accrual system, your surviving spouse may have a claim against your estate for half of the combined increase in the value of your separate estates during the marriage (specific rules apply).

Courts also have a variety of other statutory powers such as the power to alter trust provisions and to remove or modify restrictions on immovable property.

Pension and retirement fund benefits may not be paid out to your nominee – the fund’s administrators must first identify any dependants with possible claims on them.

Constitutionality: Your bequests also stand to be tested against our Constitution. Thus in 2010 the SCA removed a discriminatory clause in an educational fund bequest open only to “European girls born of British South African or Dutch South African parents”, commenting that “In the public sphere there can be no question that racially discriminatory testamentary dispositions will not pass constitutional muster” (emphasis added). Similarly in 2006 the High Court struck down provisions in a will limiting a bursary fund to white non-Jewish males.

On the other hand, the SCA in a 2018 judgment upheld a private trust’s provisions benefitting only the deceased’s biological descendants to the exclusion of two adopted grandchildren. “There is much to be said for public trusts being judged more strictly than private trusts”, said the Court, noting that the public nature of the bequests in the earlier judgments was “a determining factor in the weighing up process in those specific cases.” Note that the particular facts of that case also played a part in the Court’s decision, so adopted children and grandchildren might well succeed in different circumstances.

Clearly, there will always be a balancing act in play here because, as we saw above, freedom of testation is itself regarded as a constitutional right.

Critical: A well-drawn and valid will

The last thing your grieving loved ones will need is a long and bitter court battle over whether your will is valid – or over any areas of uncertainty or dispute.

Bear in mind that of necessity the list above is only a brief summary of the legal principles involved - there are many “ifs and buts”, grey areas (such as the balancing act referred to above in regard to the question of constitutionality), and considerations beyond the scope of this article.

That's why there can be no substitute here for legal advice specific to your circumstances. Have your attorney draw your will for you (or check it if you already have a will). It must be properly drawn, it must correctly and clearly reflect your wishes, it must be validly executed – and it must pass muster when tested as above!

LAWDOTNEWS

15/03/2019

WHY SHOULD I HAVE A WILL ??

1- To appoint a guardian for your children

No one knows their children better than a parent and, if you pass away without a Last Will and Testament, the State will decide who should care for them. You can choose a guardian for your children in your Will and make sure they’re looked after by someone you love and trust.

2- To protect your business

Making a Last Will and Testament (and using Living Trusts) is a good way to pass your company to your heirs or the co-owners of your business. A full 70% of family owned businesses do not last past the first generation and the main reason for this is lack of estate planning.

3- To decide who receives your assets

Whether it’s a family heirloom, a classic Corvette, or your savings, you should decide who receives your belongings after you die, not generic state rules. These rules might not meet your wishes and never include provisions for those not related to you, like close friends or mentors. Make sure your loved ones get the assets you want them to receive.

4- To provide for a favorite charity

Wills don’t have to be just for friends, family, and loved ones. They can also be used for altruism. Including a charity in your Will is a great way to give back and make sure your assets are used for a good cause.

5- To make a difficult time less difficult

Losing someone is incredibly hard, and the last thing any of us want to do is spend those hard times haggling with lawyers and family members. Making a Will keeps your loved ones from having to deal with bureaucracy in a time of sadness.

ROCKETLAWYER WEBSITE

08/09/2016

YOUR WILL AND A PRACTICAL PLAN FOR YOUR LOVED ONES

“Where there’s a will, I want to be in it” (Anon)

Whether you are young or old, healthy or ill, single or attached, you should have a Will. Without one, you die “intestate”, which means you forfeit your right to decide who inherits what, who administers and distributes your estate, and who looks after your children and their money. You owe it to your loved ones to spare them the
inevitable financial and personal risks.

So if you don’t yet have a Will get one drawn up immediately.

Here’s a practical guide to making sure that it will protect and provide for your loved ones properly.

Do it properly with a professional:

Don’t be tempted to use a template Will or to copy a friend’s - there is just too much at stake here to take any chances. Apart from all the legal formalities involved, there are a multitude of practical considerations that all call for professional help.

Badly drawn Wills risk outright invalidity, reduce tax and estate planning efficiency, confusion, doubt and dispute - our law reports are replete with bitter and costly family feuds that would have been avoided with a properly drawn and executed Will.

Appoint the right executor/s:

Your estate will be administered and distributed by an executor or executors. If you decide to nominate a non-professional such as your spouse, he/she will need professional assistance so consider appointing a specialist as joint executor. Choose someone you can trust to act with absolute integrity and professionalism – you will no longer be around to keep an eye on them !

A practical plan for your loved ones:

Firstly, all your bank accounts and other assets will be frozen when the executors take control and deceased estates take a long time to wind up. So check that your dependents will have enough on hand to tide them over for at least several months’ worth of living expenses.

Take advice on how best to do this – common solutions include separate bank accounts and investments, life assurance policies that will pay out directly to dependents on your death, and family trusts.

Secondly, when you die your family will be in shock. Help them through the stress and anxiety of bereavement by keeping a file with everything listed below -

• Right in front put a list of the names and contact details of everyone you can think of who your family can and should turn to for support and advice – your lawyer, accountant, tax adviser, insurance broker, medial aid specialist, doctor, financial adviser, investment manager, bank contact, employers, employees, business partners and so on
• Next, a copy of your Will and contact details for your executor (who should keep the original Will in safe custody)
• If you have particular wishes in regard to funeral arrangements, cremation, etc, leave a signed directive giving details (or referring to any instructions in your Will)
• Medical aid details and details of any funeral policy
• Copies of ID documents – for you, your spouse, your children, other dependents or heirs, guardians etc
• Important family documents like marriage certificates, ANCs, cohabitation agreements, divorce orders and so on
• A full list of your assets (give detailed descriptions of any important assets, and don’t forget full details of any loans made to family members) and your liabilities
• Details of all bank and savings accounts, credit cards, investments, life policies, pension funds, retirement annuities and the like
• Information on entities like companies and trusts in which you or your family have any interest or involvement
• A list of all monthly recurring liabilities, debit orders etc
• Important documents relating to your assets and liabilities – title deeds, vehicle registration papers, rental agreements, loan agreements, insurance policies, tax returns, tax records – really anything your family or executor may need to access quickly and easily
• Notes on the location of things like safes, spare key boxes, security documents, firearm cabinets etc, and of the keys or codes needed to access them (see under “Passwords” below for ideas on doing this securely)
• A note on how to access passwords, PIN numbers and access codes, which are a big issue in our electronic age but often overlooked. Don’t make that mistake - your loved ones will need access to your computers, your cell phone, your online accounts, your email, your online payment portal, your Social Media pages and so on. For some ideas on how to do this securely read “Making Life Easier for Your Heirs in a Digital World” on Siller & Cohen’s website. If you use a password manager like LastPass www.lastpass.com look for functions like “Emergency Access” to share your passwords with your heirs, and “Secure Notes” to share information like PINs, safe and alarm codes, location of keys etc
• Anything and everything else your loved ones or advisers may need to know about – ask them if they can think of anything to add.

Where your file contains copies of documents rather than originals, say clearly where the originals are kept.

Put your file somewhere safe then tell everyone where to find it and how to access it (it’s no good telling them it’s in your safe if they don’t know where to find the safe key!).

Diarise regular reviews:

All sorts of life events - marriage, divorce, deaths, births, adoptions, retirement, new family circumstances and the like – call for amendment of your Will. So diarise regular reviews and again take full professional advice on how to make any changes both validly and to best advantage.

Contact us on 021 852 8313 or [email protected] should you need any assistance regarding your will, estate planning or trust administration.

All our Facebook friends qualify for a 1 hour estate planning session, at our expence, which includes advice from our business partners - Hannes Pretorius Bock and Bryant Attorneys and Crowe Horwath RMA Accountants.

27/06/2016

We are sponsoring the Strand Golf Club's Wednesday Competition in conjunction with our business partners Hannes Pretorius Bock & Bryant Attorneys, Profin and Crowe Horwath Accountants. Prizes for the day will amount to R26000 !! Players will receive handouts at registration and a free 1 hour estate planning session.Don't miss out on this event !

01/09/2015

We render our services with precision and in a professional and friendly manner. With us you will have the peace of mind that your loved ones will not be handled as just a number in a queue, but will receive personal and compassionate assistance in the difficult time associated with the passing away of a loved one.