FREEDOM!!
 
Our ultimate freedom is the right and power to decide how anybody or anything outside ourselves will affect us.
Stephen Carey
 
You can’t separate peace from freedom because no one can be at peace unless he has his freedom
Malcolm X
 

April is the month of freedom when we will celebrate our freedoms and liberties. Some freedoms that we enjoy today were fought for very hard and most came at a very high price.
 
What are the formal definitions of freedom and liberty? Freedom is the power or right that everyone has to act, speak or think as one wants without constraint. Liberty is the state of being free within society from oppressive restrictions imposed from authorities on one’s way of life, behaviour or political views under a democratic government.
 
Freedom of choice is a God-given right that is so easily taken for granted. Why is it that people only really appreciate something after it is gone? During this worldwide situation, everyone had to give up a lot of freedoms of which some were fought for relentlessly by our predecessors. This is an unusual situation to which few are accustomed to. Especially if freedom is taken away and then returned as a reward as if it never was yours before.
 
But with freedom also lies great responsibility, which is also not always the right to do anything, but the right to do the right thing. Abraham Lincoln said that those who deny freedom to others deserve it not for themselves either.
 
Thus, what can be said about our current situation? It is evident that our basic freedoms are under attack on various levels, especially freedom of speech. Something so valuable as freedom should not be given up so easily. Let’s ponder for a moment and be thankful and appreciative every day for every freedom that is still ours to treasure and enjoy.
 
Reporting of an estate
 
A deceased estate comes into existence when a person dies and leaves property or a Will. All estates though, should be reported to the Master of the High Court within 14 days of the date of death. Even though this is the case, it does not always occur in this time span as some estates are not reported until a survivor also passes away and then there is, for example, a property that must be transferred which forces the reporting of the estate/s. Then both estates are reported at the same time because the property cannot be transferred before the pre-deceased estate has been reported. Any person that has control or possession of any property or a Will of a deceased, can report the estate of the deceased.
 
A deceased estate must then be administered and distributed in terms of the deceased’s Will or, if there is no Will, in terms of the Intestate Succession Act (Act 81 of 1987). Legatus Trust is the nominated executor in our Wills and will report the estate to the Master of the High Court by lodging a completed death notice and various other documents with the Master. Legatus Trust will carry out the directives as set out in the Will. Therefore, ensure that all signed Wills are returned to Legatus Trust for safekeeping as soon as possible. Keep in mind that the current restrictions sometimes hamper the normal flow of business.
 

HOW WIDE IS A TRUSTEE'S DISCRETION?

Read more about this in the next edition
 

Digital technologies have advanced more rapidly than any innovation in history.  Via electronic tools, systems, devices and resources that generate, store or process data, around 50% of the developing world’s population has been reached in only two decades, in effect transforming societies. Well-known examples include social media, online games, multimedia and mobile phones.  Digital technology can help improve communication and successful enterprises embrace technology to create digital workplaces that improve business cohesion.
 
Therefore, questions regarding the use of digital technology when a document like a Will is signed, become more common. People want to know why they cannot just take a self-video or make a voice recording in which they set out who inherits what after his/her death. Why does a Will still have to be a hard-copy document?
 
It is true that electronic devices like computers, laptops, tablets, smartphones, etc. have changed the way we interact with and store information. It has led to hard-copy documents going out of fashion and the current situation has enhanced this view.
 
The Wills Act in South Africa requires that a Will be signed by the person whose Will it is, the testator.  This implies that there must be a document to be signed.  The act also requires that the testator signs in the presence of two appropriate and impartial witnesses who must also sign the Will while in the presence of the testator and each other.
 
A Will can be drafted on any electronic device, i.e. computer, smartphone, etc., but the draft must be converted into a document which must be printed and signed according to the requirements of the law.
 
ECTA (the Electronic Communications and Transactions Act of 2002) determines that a document included in a data message, which is a digital or electronic document, fulfills the requirement of a document to be in writing.  But it excludes a Will from such documents because a signed and electronically stored Will does not comply with the requirements of the Wills Act.
 
The reason behind the requirements of the Wills Act is to prevent fraud when dealing with an important issue like a person’s estate. A Will that complies with the stipulations of the act is accepted as authentic and if it is disputed, it must be proved to not be a valid Will. It is harder to authenticate a data message.  Video recording can be altered very successfully and are not reliable or authenticatable at all. Examples of this are the altered memes about Donald Trump.
 
Even though the technology exists to create digital documents, it is not that easy to switch to electronic Wills. If it were at all feasible, most of the world would have moved to electronic Wills by now. The debate regarding video Wills has started more than 30 years ago, but most countries still insist on hard-copy Wills despite the availability of digital technology.
 
Of course, in some countries they do provide legislation that the court can order that untraditional Wills and recordings can be accepted as valid Wills if it can be proven to be the person’s Will. In South Africa, section 2(3) of the Wills Act empowers the court to order the Master of the High Court to accept a document as a Will when that document was drafted or signed by a person before their death and was intended by that person to be their Will, despite the fact that the document does not comply with the formal requirements for a valid Will.
 
Most of the applications regarding electronic documents which were granted by the high court were based on paper printouts of documents and not the electronic versions. Approaching a court is extremely costly and time-consuming though. Unopposed cases could cost anywhere between R15 000 and R50 000 which can increase drastically if opposed.
 
Several other countries have emergency legislation in place which allows for the signing of a hard-copy Will by the testator and witnessed via videoconferencing.  Under South Africa’s Disaster Management Act, which covers the current lockdown regulations, no provision is made for any power to amend the requirements of the Wills Act.  Changes to the Act can only be implemented by way of an amendment of the Wills Act by parliament.

When it comes to legacies, most people want to leave their earthly possessions to family members, close friends, or charities.
 
Ray Fulk had a very different view.  He was a loner, still single at age 71, no children or close family members.  A lot of neighbours did not even know who he was. He lived and died alone in his Lincoln, Illinois farmhouse, a home without running water. He also drove nothing fancy, but an old 1960s Ford truck. Surprisingly, he died leaving an estate of over $1 million.
 
He had this strange belief that he had friends in two actors he had never personally met, Kevin Brophy and Peter Barton.  His contact with them was through letters, supporting them and pitching for their next movie or show; on which they responded and thanked him for. By chance, the two actors were friends who also acted in the same 1981 movie, Hell Night.
 
After his death, the two actors received letters from his attorney, Donald Behle, informing them that they were named beneficiaries in Ray Fulk’s estate.  Of course, they initially thought that it was a scam. Barton actually visited Lincoln and the attorney to see if the letter was real.  Apart from a $5,000 donation to an anti-cruelty animal society, the rest of the estate was divided between the two actors.