Where is your will?

My uncle, just turned 95, invited me to his death rehearsal. Morbid, but practical.

He showed me where he has stored his will, title deed to his property, bank information, etc.

He even has a list of people to invite to his funeral (names and addresses)!

When you are young, you are immortal. Drawing up a will is conceding that you are going to die, so avoid it, right? Wrong!

See your bank or lawyer to prepare your will. If you are living together but not married, conclude a life partnership (or cohabitation) agreement.

To prepare for your death, I advise you to:

·         Put together a box file containing all your important documents, and tell your nearest and dearest, where it is. In this box file, store your will, marriage contract, insurance policies, title deeds, papers for cars, caravans and boats, timeshare information. and other important papers;

·         List your creditors (credit card, loans, mortgages, store accounts, etc.);

·         List important numbers for your heirs, such as the name of your broker, lawyer, doctor, dentist, financial advisor, etc.;

·         Leave a list of family and friends, to contact on your death;

·         List what happens to your DSTV, armed response, personal and home insurance, etc.;

·         Describe where you want to be buried or cremated, and your funeral wishes, in general;

·         List codes for your security system, and where to find keys for your safe deposit box, post office box, etc.; 

·         List all your virtual accounts, user names and passwords (ranging from email accounts to your social networking profiles) and retain these passwords, with other valuables, in a safety deposit box, to be revealed to your executors, only on your death.

·         Instruct your executors whether to keep your social media sites current or delete them. You may, for example, want your executors to notify your friends or connections of your passing, and to keep the sites open, as a memorial. If you decide to memorialize your accounts, Twitter and Facebook will shut down your account, but your executors can set the privacy so that only confirmed family and friends can see the profile and leave posts on the profile Wall, in remembrance.

What contact rights do grandparents enjoy with their grandchildren?

In LH and another v LBA (EL1426/20101, Eastern Cape High Court) the court had to decide what rights of access grandparents had to their grandchild.

Summary

The applicants sought an order allowing them access to their six-year-old grandson, born out of a relationship between their deceased son and the respondent. The respondent had initiated contact between the child and the applicants when the child was about six months old. The applicants then had regular contact with the child and he soon started to spend weekends with them. That arrangement continued until December 2008, after the child’s third birthday, when the respondent abruptly stopped it. Despite various attempts by the applicants to convince the respondent to allow them to see the child, they had not had any contact with him for the past three years.

Held

That when considering such an application the Court is enjoined to consider, inter alia, the best interests of the child; the relationship between the applicant and the child, and any other relevant person and the child; and the degree of commitment that the applicant has shown towards the child. In terms of section 7 of the Children's Act 38 of 2005, the Court must, when determining what is in the best interests of the child, have regard to the need for the child to remain in the care of his or her parents, family or extended family; and to maintain a connection with his or her family, extended family, culture or tradition.

The Court was not convinced that the reasons proffered by the respondent for refusing to allow contact between the child and his biological paternal grandparents were valid. However, the Court was also of the view that the extent of the access sought by the applicants was too wide, and it would not be in the child’s best interests to allow contact on that basis. A more limited right of access was granted.

Contracting with a trust

If you buy a property in the name of a company, the offer to purchase can state that Joe Bloggs acts in his capacity as an agent of a company to be formed. This is perfectly valid in that the company can subsequently ratify the offer.

This is not the case with trusts. The following principals apply:

·         All contracts must be concluded with an already-established trust;

·         All (or in the case of some trusts, a majority of) trustees must consent in writing to the contract before entering into contracts on behalf of a trust. If there is no prior written authority (usually in the form of a resolution), the contract will be void;

·         A void contract cannot be rectified by ratification (i.e. the remaining trustees can’t approve, and thereby resurrect, a void contract after it has been signed).

This was confirmed by our Supreme Court of Appeal in the case of Thorpe and Others v Trittenwein and Another 2007 (2) SA 172 (SCA). In this case one trustee (who was also the founder and a beneficiary of a trust) signed a sale agreement for the purchase of land without the prior written authority of the other trustees. The other trustees subsequently ratified the first trustee’s act but the Court held that this was not possible and the seller was free to sell to someone else.

Trustees can only exercise a power if that power is given to them in the trust deed. If, for example, the trust deed doesn’t give the trustees the power to buy and sell property, a unanimous resolution of trustees to do so doesn’t cure this defect and the agreement will still be void.

So, if you are about to enter into a contract with a trust, make sure that the trust deed gives the trustees the authority to contract with you, satisfy yourself that the trustees are who they claim to be (see latest Letters of Authority for the trust) and ensure that an appropriate resolution is in place, signed by all the trustees.

Must I work overtime?

Section 10 of the Basic Conditions of Employment Act (‘the BCEA’) provides that an employer may not require or permit an employee to work overtime unless there is an agreement to work overtime.

If there is such an agreement, a refusal to work agreed overtime amounts to misconduct.

Agreement to work overtime

·         The agreement does not have to be in writing, but in order to avoid disputes it is advisable to record it in writing;

·        The contract of employment may contain an agreement to work overtime if the need arises. If an employee refuses to work agreed overtime, it amounts to a breach of contract and disciplinary action can be taken against the employee;

·      If employees collectively refuse to work agreed overtime it amounts to industrial action and the relevant provisions pertaining to strike law would apply. (Note: Some Bargaining Council Agreements may contain specific provisions that regulate overtime in a particular industry or sector);

·   Section 6 of the BCEA provides that the normal requirement that overtime must be by agreement does not apply in cases where ‘work is required to be done without delay owing to circumstances for which the employer could not reasonably have been expected to make provision and which cannot be performed by employees during their ordinary hours of work’. If these circumstances exist and employees refuse to work overtime they may be subjected to disciplinary action.

When is someone disqualified from benefiting under a will?

The following persons are disqualified from benefiting under a will:

1.     A person who has unduly influenced the person who wrote the will to give him a benefit under the will.

2.     A person who is unworthy, e.g.

·         A person who unlawfully has caused the death of the testator. This is in accordance with the maxim de bloedige hand er neemt geen erffenis, and clearly the person who murders another cannot take a benefit from the will of his victim.

·         a person who has led another into an immoral life and indirectly caused the latter’s death;

·         a person who has concealed the will of the testator;

·          A person who has attempted to defraud persons of their rightful inheritance by forging a will.

In Makhanya v Minister of Finance the court used the de bloedige hand maxim to extend the rule to cover any proceeds from the deceased’s pension fund from benefiting the person who caused the deceased’s death.

The facts in Danielz NO v De Wet and Another were that De Wet was the sole nominated beneficiary under four life insurance policies on the life of her late husband. In 2000, she hired and paid two men to assault her husband. Unfortunately, they killed him.

In 2006, after the she had been convicted on the criminal charges against her, she claimed under the life insurance policies from the insurer. The applicant, who was the nominee of the insurer (Old Mutual), applied for a declaratory order that De Wet was not entitled to the proceeds of the life insurance policies.

The court agreed and the application for a declaratory order to bar De Wet from claiming the proceeds of the policy was therefore successful.