It is hard to believe that we are well on our way to August 2022, the last month of the Winter season in South Africa. Our country and its people have suffered a great deal owing to the lack of constant electricity supply during the cold Winter months. We are looking forward to Spring and its warmer temperatures!
 
August is Women’s Month and will we be celebrating Women’s Day on 09 August. This day was declared a national holiday in 1995 after the election of Nelson Mandela when South Africa became a democratic country. The commemoration of this day marks the anniversary of the great women’s march of 1956, when a group of about 20 000 women marched to the Union Buildings to protest against having to carry passbooks.
 
We wish all the women in our lives a happy Women’s Day!
 
THE IMPORTANCE OF PROPERLY-COMPLETED WILL APPLICATION FORMS
Legatus Trust always endeavours to provide quick and efficient services to our clients. The drafting of Wills form an integral part of our service offering. The first step that enables us to draft a Will is to receive a thoroughly-completed application form. This application form is the instruction to your Wills drafter to draft the Will.
 
Please note that a completed application form is part of the compliance requirements and forms an integral part of the auditing process. It is, therefore, a strict requirement that a duly-completed application form must be submitted with the request for the drafting of a Will. No Will may be prepared without this document.
 
Another important purpose of a completed application form is to confirm the correct source of the Will, as well as to ensure that your commission is paid out correctly.
 
We urge you to always complete an application form when you request a Will to be drafted to ensure a speedy and efficient drafting service, and to enable us to comply with industry requirements.
 
THE CORRECT WITNESSING OF A WILL
 Just to recap: Two impartial persons older than 14 years of age must witness the signing of a Will and all the parties must be present when the Will is signed. Furthermore, no person who is to receive a benefit, or are nominated to hold a position in the Will, are allowed to act as a witness, neither any of their spouses.
  

ESTATE DUTY: THE DUTIABLE PART OF THE ESTATE

Read more about this in the next edition

 

SIGNIFICANT CHANGES AHEAD FOR DIVORCING COUPLES MARRIED OUT OF COMMUNITY OF PROPERTY
 
A landmark ruling by the Gauteng High Court in Pretoria has delivered some good news for couples married out of community of property and without the accrual system. The ruling stipulates that neither party will walk away empty-handed when they get divorced.
 
On 11 May 2022, the Pretoria High Court declared that Section 7(3)(a) of the Divorce Act (70 of 1979) is inconsistent with the Constitution and invalid to the extent that it limits the operation of Section 7(3) of the Act as applicable to marriages out of community of property that were entered into before the Matrimonial Property Act that came into effect on 1 November 1984.
 
This ruling led to the Pretoria High Court asking the Constitutional Court to confirm an order that will have significant implications on how assets are distributed when couples who are married out of community of property get divorced.
 
The judgement followed an application that was brought by a woman who got married out of community of property in March 1988, excluding the accrual system. The respondents in the case were the Minister of Home Affairs, the Minister of Justice and Constitutional Development, and her husband. The application was unopposed.
 
The wife maintained that the “limited and exclusionary” application of Section 7(3)(a) of the Divorce Act constitutes unfair discrimination, prohibited by Section 9(3) of the Constitution. It also imposed a limitation on the right to equality.
 
Shani van Niekerk, a Senior Associate at Adams & Adams Attorneys, appeared on behalf of the Pretoria Attorneys Association and was admitted to the proceedings as a friend of the court. She maintained that the ruling means that individuals married out of community of property without accrual will be entitled to claim a redistribution of assets despite what their signed antenuptial contract may prescribe.
 
Such a redistribution claim would, however, not be an automatic entitlement. To be successful, a spouse instituting a Section 7(3) claim would still have to prove their direct or indirect contributions made toward the estate of their spouse. Each claim will differ as the court would not only have to decide whether the spouse was entitled to a claim, but also the extent of the claim.
 
Senior Associate and Family-law Attorney at Barnard Incorporated, Natasha Truyens, notes that, should the Constitutional Court confirm the order, this will have a significant and compelling effect on many marriages in South Africa.
 
Section 7(3)(a) of the Divorce Act states that: “A court granting a decree of divorce in respect of a marriage out of community of property, community of profit and loss and accrual sharing in any form are excluded […] may, subject to the provisions of subsection (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.”
 
Judge Elmarie van der Schyff took issue with the words “entered into before the commencement of the Matrimonial Property Act, 1984”, saying its phrasing was inconsistent with the Constitution and, therefore, invalid.
 
She further stated that Section 7(3)(a) separated the two parties solely on the date of the commencement of the Matrimonial Property Act (MPA) where:

Judge Van der Schyff said: “The only difference between these groups is speculative in that it can be argued that there might be members in the first group who did not know that they could incorporate the accrual system post the commencement of the MPA, while a deliberate choice underpinned the position of the second group.”
 
“Speculation aside, these groups are par excellence in a similar situation, and yet the one group is denied the benefit of Section 7(3)(a) only on the basis of the date on which their marriage was concluded.”
 
“The differentiation amounts to discrimination based on the date on which a marriage was concluded, because economically-disadvantaged parties’ human dignity is impaired if they cannot approach the court to exercise the discretion provided for in Section 7(3) of the Divorce Act.”
 
“Unlike their counterparts whose marriages were concluded before 1 November 1984, economically-disadvantaged parties who contributed to their spouses’ maintenance or the growth of their estates are vulnerable parties whose only recourse is to approach the court for maintenance. The unequal power relationship implicit to any maintenance claim, and the extent to which it renders an economically-disadvantaged party vulnerable in these circumstances, speaks for itself.”
 
Source: https://www.moonstone.co.za/court-ruling-has-major-implications-for-divorcing-couples-married-out-of-community-of-property/


REQUESTS IN WILLS
 
“Frank Smith, from Romsey, Hants, had £2989 and wrote his Will in December 1937. He died in November 1942. He wrote in his Will to leave all remaining possessions to his daughter as long as she doesn’t continue living with her ‘immoral husband’ or permit her husband to benefit from the inheritance. And if the daughter does not do this, everything will go to be Exchequer for the purposes of the state.”
 
Anything can be written in a Will, including bizarre requests. The question is: Is the request enforceable? In this instance it is not and would be classified as a wish. Wishes are not enforceable and also do not form part of the duties of the executor.