“There can be no greater gift than that of giving one’s
time and energy to help others without expecting
anything in return.”
 
“Forgiveness liberates the soul. It removes fear.
That is why it is such a powerful weapon.”
 
“To be free is not merely to cast off one’s chains,
but to live in a way that respects and
enhances the freedom of others.”
 
To al the fathers:
We trust you had a really wonderful Father’s Day on the 20^th of June and
that you were celebrated and treasured by all your loved ones.
 
                             “DAD: a son’s first HERO, a daughter’s first LOVE.”

Life is uncertain and nothing should be taken for granted. We urge you to ensure that your clients Wills are updated on a regular basis, at least once a year, to ensure circumstantial changes have been considered. A Will is a living document and it is normal for changes to take place during a person’s life time. Your role as a broker is very important in keeping up with your client’s testamentary needs and status. The fragility of life is especially highlighted in the current circumstances.
 
A client could have been married or divorced, a new family member may have been born, an heir may now be deceased – these, and many other changes happen all the time and need to be considered in updating their Wills on an evolving and progressive basis. It is vital to leave detailed directions ensuring their remaining assets are dealt with according to their wishes. Updating a Will will also make it easier to execute and avoid conflict and stress between family members. Careful planning is essential and should not wait for a life-threatening event to implement such an important part of their financial planning.
 

DELAYS IN SERVICE DELIVERY

Read more about this in the next edition

ARE THERE DISCRIMINATORY PROVISIONS IN THE INTESTATE SUCCESSION ACT?
 
What does intestacy mean? If a person dies without a Will, or parts of a Will are invalid, the estate (or part thereof) will be administered according to the principles of the Intestate Succession Act 81 of 1987.
 
The Intestate Succession Act 81 of 1987 came into effect on 18 March 1988. The Act regulates the shares in which certain persons will inherit from an intestate testator’s estate. In terms of common law, a person’s blood relatives are his or her natural heirs. The rules of the Act are very fair as it looks after the spouse first, thereafter the children, if any.  If there are no spouse or children, the assets will move up in the family tree to the parents, then sideways to siblings, etc.  Click here for diagrams on the distribution of assets under the current provisions of distribution in an intestate estate. The credit for diagrams goes to Tonkin Clacey in Pretoria.
 
It is not advisable to die without a Will because there are practical issues that come into play. Amongst others, the administration process will be delayed if there is no Will or nominated executor.
 
A while ago, the regulations of the Act regarding the distribution of intestate assets came under scrutiny in the Western Cape High Court. In October 2020, the court ruled that the Intestate Succession Act is unconstitutional in that it only caters for married and same-sex couples.
 
These shortcomings in the Act came under the spotlight when a former domestic worker, Jane Bwanya’s life partner unexpectantly died. Bwanya may have succeeded in changing the provisions of the Intestate Succession Act, which had barred unmarried partners in a heterosexual union from inheriting. The High Court ruling is still subject to confirmation by the Constitutional Court.
 
Because of this ruling, Bwanya stood a chance to inherit the estate of her life partner, Anthony Ruch, who died suddenly in April 2016 at the age of 57. His estate included a guesthouse in Camps Bay and a flat in Sea Point. Ruch was never married, had no known surviving relatives and died leaving his estate to his mother, who had already passed away. Only Bwanya and a chauffeur laid claim to the estate, which was being administered by the Masters’ Office. Both claims were rejected which forced Bwanya to approach the court.
 
The judge in the case presented at the Western Cape High Court, ruled that certain aspects of the Act were unconstitutional in that, while it catered for married and same-sex couples, it did not provide for those in Bwanya’s situation. In her judgment she said: “…the act had to be amended to include, alongside the word “spouse”, the words, “or a partner in a permanent opposite-sex life partnership in which the partners had undertaken reciprocal duties of support and had been committed to marrying each other.” The judge further ruled that certain sections of the Maintenance of Surviving Spouses Act were unconstitutional as well, saying that the Act excluded life partners in permanent heterosexual life partnerships from inheriting as it specifically defines “survivor”, “spouse” and “marriage”.
 
Ruch’s assets were sold and after making a deal with the executors of the estate, Bwanya received a final settlement of R3 million, but was not entitled to his remaining estate, which went to distant relatives living overseas. She approached the Constitutional Court to have the initial judgement put forth by the Western Cape High Court confirmed, thereby changing the law. The case is ongoing, and no judgement from the Constitutional Court has been administered.  Should the judgement be confirmed, it will be ground-breaking for opposite-sex couples in life partnerships.
 
The declaration of the invalidity of certain parts of the Intestate Succession Act is an important development for the South African philosophy of law on the rights of heterosexual permanent life partnerships. The life partner in a heterosexual relationship that was not legally solemnised as a marriage or civil union will in future, qualify as a spouse and be entitled to inherit when the other partner dies without a Will. As mentioned above, this ruling is still subject to confirmation by the Constitutional Court and, in time, any changes to the provisions in the law of Intestate Succession Act, if any, will be communicated.
 
The world is rapidly changing and this case has highlighted the fact that some provisions in the Intestate Succession Act have become outdated because of changes in people’s attitudes towards relationships. Nowadays many people do not get married but choose to rather live together in a lifelong union with a life partner. The Act barring unmarried partners in a heterosexual union from inheriting from the other’s estate is thus problematic.
 
The lesson to take from this is still to always have a valid Will in place where the testator can decide what must happen to assets and who will inherit from the estate. Regardless of the legal status of a partnership, always ensure that there is a Will in place to make provision for the testator’s personal wishes.
 
Read the full article and judgement here:
https://www.groundup.org.za/article/former-domestic-worker-inherit-camps-bay-guest-house-and-flat-seapoint/
https://www.groundup.org.za/media/uploads/documents/BwanyaHighCourtJudgment-20200928.pdf
https://www.2oceansvibe.com/2021/02/23/update-on-former-domestic-worker-who-sought-to-inherit-wealthy-lovers-estate/
 
Another interesting source:
http://www.tcpta.co.za/notes-on-intestate-succession/#:~:text=The%20Intestate%20Succession%20Act%2C%2081,operation%20on%2018%20March%201988.&text=The%20Act%20regulates%20the%20shares,are%20his%2Fher%20natural%20heirs.


SHORT AND TO THE POINT
 
François Rabelais was an acclaimed master of the comic who lived during the Renaissance. This satirist’s 1553 Will was famously concise and supposedly consisted of just one memorable line: