Now is the time to consider your estate planning

I previously suggested that there has been a massive rise in demand for wills and estate planning from people worried about COVID-19, as the awareness of mortality amid a pandemic increases.

Our specialist consultant, an estate planning expert, Dr Mervin Messias, urges you to immediately put your affairs in order.

He is prepared to have an e-meeting with you – without charge – to assess your unique estate planning needs. Planning for your estate is not a cookie cutter exercise (not one size fits all). Dr Messias will help you understand the estate planning process, for without understanding there can be no comfort. 

While you are still capable, he will assist you to put together all the estate planning documents you need, such as a will, a living will, a power of attorney, and living trust, depending on your exclusive requirements.

Especially in these uncertain times, don’t ask: “Why do today what I can put off until tomorrow?”  In estate planning, tomorrow may instantly become today.  None of us can predict the timing of our own deaths with certainty.  Death sneaks up on most of us and respects no time parameters.  Statistically, there may be a tomorrow, but don’t plan on it!  Planning now is mandatory.

Almost everything can be achieved remotely while we are under lockdown. It is time to be proactive. Estate planning is a process that begins within your life and can continue far after death.  It is not unique or indigenous to any economic class. How often we have heard. “Estate planning for me?  Heavens, I don’t need an estate plan!  I have so little.”  Really?  No loved ones, no disposition towards a favourite family member, close friend, or institution (charitable or otherwise)?  No insurance, property or insurance plan?  No personal possessions, mementos, or family heirlooms that require a loving pass-on?  No debts?

These are some of the issues he will chat to you about:

·         Estate planning involves people: spouses, children, grandchildren, favourite family members and close friends; their security and prosperity without you. It is taxes: income, death and gift.  It is lawyers, accountants, insurance people, banks and financial planners.  It is society’s rules along with red tape and courts of law that accompany those rules.  It is a world of advisors busily accomplishing things that most people do not understand.  It is time and money!

·         Estate planning involves creating and maintaining a lifestyle for you and your family while you are alive and for your loved ones after your death.  It involves the sacrifice of Rands to purchase life insurance or to invest in a portfolio, in lieu of personal indulgences, with the sincere belief that you are creating security for you and your loved ones.

He always asks our clients, “What do you want done with your property and insurance after you’re gone?”  The responses have been different, but they all contained thoughts that could be summarised as follows:

“I would like to give my property to whom I want, in precisely the way I want.  Further, I wish my beneficiaries to receive my property when I wish them to receive it.  But and this is very important to me, I want to save every last tax rand in accomplishing my objectives.  Oh yes, I also want to avoid, or at least reduce, attorneys’ fees and court costs.  Finally, I don’t want myself or my family involved in a lot of red tape that prevents my objectives from being accomplished quickly.”

If you want Dr Messias to contact you, please email info@bmalaw.co.za and we’ll set up the free chat or e-meeting.

Coronavirus lockdown – how do I get a will?

There has been a massive rise in demand for wills from people worried about coronavirus, as the awareness of mortality amid a pandemic increases.

In South Africa, our law requires that you sign your will in front of two independent witnesses in person, in your presence. If you don’t comply with this requirement, your will is invalid.

In family homes, loved ones named in the will are not permitted to witness a will, as this would void their entitlement and they would have to forfeit their inheritance.

One area of concern is people trying to make a will shortly before they die. Finding independent witnesses when confined to a hospital bed may be difficult. Visitors are not allowed, and doctors and nurses are not allowed to bring potentially tainted documents to bedsides. These professionals are concentrating on medical treatment anyway.

That means someone in hospital and likely to pass away will not be able to write a last-minute will. Currently healthy people are thus encouraged to execute a will now, while they still can.

So, what do you do, if you are in lockdown and don’t have access to two independent witnesses and want to finalise a will at short notice? You can go to a pharmacy, so perhaps the pharmacist and his or her assistant can be the witnesses. I believe that there must be a relaxation of our lockdown rules, in these circumstances.

If you need a will please seek professional advice, as do-it-yourself wills from online templates may be risky and invalid.

If you don’t have a will, the laws of intestacy (dying without a will) apply. Read more here.

Can a bank sell a repossessed vehicle for a ridiculous amount?

FirstRand Bank Limited t/a Wesbank v Davel (1229/2018) [2019] ZASCA 168 (29 November 2019).

FirstRand Bank Limited t/a Wesbank (Wesbank), concluded a written instalment sale agreement with Davel, in terms of which he purchased a 2010 Volkswagen Polo, payable over 59 months with a balloon payment in the 60^th month. Davel fell behind on the payment of his instalments.

Wesbank sent him a notice in terms of s 129(1)(a) of the National Credit Act 34 of 2005 drawing his attention to the options available to him in terms of the Act, but also stating that, in the event of him not choosing any of them, legal action would be instituted against him claiming, inter alia, cancellation of the agreement and return of the vehicle. Mr Davel did not respond to the notice, prompting Wesbank to issue summons claiming the relief it had threatened. This was followed by an application for summary judgment by Wesbank, in terms of which it claimed, inter alia, the cancellation of the agreement, the return of the motor vehicle and that the entire damages component of its claim be postponed sine die. It also sought forfeiture of all monies paid by Mr Davel.

The court had to decide what relief to grant. It had to balance the interests of the credit provider (Wesbank) and the credit receiver (Davel). the Credit Act provides protection for consumers and for the enforcement of the rights of credit providers - an "equality of arms".

The court was concerned that there was a tendency to recover vehicles and then sell them at a ridiculous price. It ordered Wesbank (the plaintiff) to give Davel (the defendant) notice:

a)    setting out the estimated value of the vehicle;

b)    informing the defendant that it intends to sell the returned vehicle as soon as practicable for the best price reasonably obtainable; and

c)    informing the defendant that the price obtained for the returned vehicle upon its sale may be higher or lower than the estimated value;

Thereafter, the plaintiff shall sell the returned vehicle as soon as practicable for the best price reasonably obtainable. After selling the returned vehicle, the plaintiff shall:

a)    credit or debit the defendant with a payment or charge equivalent to the proceeds of the sale less any expenses reasonably incurred by the plaintiff in connection with the sale of the goods; and

b)    give the defendant a written notice stating the following:

                      i.        the settlement value of the agreement immediately before the sale;

                     ii.        the gross amount realised on the sale;

                    iii.        the net proceeds of the sale after deducting the plaintiff’s permitted default charges, if applicable, and reasonable costs allowed under paragraph (a); and

                    iv.        the amount credited or debited to the defendant’s account.

The notice shall state that:

a)    If the defendant disputes the amount of the proceeds of the sale or any other charges or expenses incurred, he or she may engage directly with the credit provider in relation thereto.

b)    If the engagement referred to in (a) does not yield, from the defendant’s perspective, the desired result, he or she may, refer the dispute to the Tribunal or submit a complaint in terms of s 136 of Credit Act 34 of 2005 to the National Credit Regulator.

If an amount falls to be credited to the defendant’s account which exceeds the settlement value immediately before the sale of the returned vehicle, the plaintiff must remit such excess amount to the defendant.

If an amount is credited to the defendant’s account which is less than the settlement value before the sale, or an amount is debited to the defendant’s account, the plaintiff may demand payment from the defendant of the remaining settlement value. If the defendant fails to pay the amount demanded within 10 business days of receiving such demand, the plaintiff may commence proceedings against the defendant for any outstanding damages.

Covid-19 breaks that the South African Government provides to small businesses and employees

Covid-19 Benefits provided by the South African Government

Pay As You Earn Entities, who are tax compliant (tax clearance certificate), with a turnover of less than R50million will be allowed to delay 20% of their monthly PAYE liabilities over the next 4 months. After the 4 months the companies will be required to settle the outstanding amounts not paid during the period. This is deemed to “enhance” cash flow over the next few months, but entities must keep in mind to “budget” for the 20% relieve received during this 4 month period as it will become due at the end of the 4 month period. If not settled penalties and interest will be charged. (In short, the liability is extended to assist entities with cash shortages for the next few months, but entities are required to budget for the settlement liabilities extended.) Provisional Taxes Entities, who are tax compliant (tax clearance certificate), with a turnover of less than R50 million will be allowed to extend their provisional tax payments due for the 2020/02 for the next 6 months to “enhance” cashflow positions. Entities must keep in mind that the amount will become due at the end of the 6-month period and if not settled penalties and interest will be charged. (In short, the liability is extended to assist entities with cash shortages for the next few months, but entities are required to budget for the settlement liabilities extended.)

UIF The benefit will be at a flat rate equal to the minimum wage (R3,500) per employee for the duration of the shutdown or a maximum period of 3 months, whichever period is the shortest. * Should an employee become ill, temporarily laid-off or unemployed for a period longer than 3 months, the normal UIF benefits will apply and the following documentation will be required: UI19 and UI2.7 (completed by the employer); UI2.1 (application form); UI2.8 (bank form completed by the bank); A letter from the employer confirming that the company is shut down or employees have been temporarily laid-off due to COVID 19; and A copy of the employee’s ID document. * Where a company shuts down for a certain period or implements reduced or short time, benefits payable will be the difference between what the employer pays and normal UIF benefits payable should the employees lose their employment. * Where an employee has been quarantined for 14 days due to COVID 19, the illness benefit process will apply. For this to be applied a confirmation letter from both the employer and employee must be submitted together with the application as proof that the employer and employee have both agreed to the 14 days “special leave” granted.   Small Business Development Entities can register at www.smmesa.gov.za and will be asked to provide basic details and indicate whether they will require financial or non-financial assistance or both. Businesses within the critical sectors as stated, manufacturers, distributors, necessities, food, etc, are expected to receive priority support during the lockdown period.   Compensation Fund Any employee who falls ill pursuant to exposure to Covid-19 at work will be entitled to claim from the Compensation Fund. Broadly speaking, claimants are required to include such compensation in their gross income for tax purposes. The amount is, however, exempt from normal tax in accordance with section 10(1)(gB) of the Income Tax Act.

Solidarity Fund A Solidarity Fund has been set up to which South African businesses, organisations, individuals and members of international communities can contribute to. The Fund’s focus is to combat the spread of the virus, to assist in tracking the spread and to care for those who become ill. The Fund has its own website which can be visited at www.solidarityfund.co.za. * Where an employee has been quarantined for 14 days due to COVID 19, the illness benefit process will apply. For this to be applied a confirmation letter from both the employer and employee must be submitted together with the application as proof that the employer and employee have both agreed to the 14 days “special leave” granted.

Employee Tax Incentive Government has proposed an additional tax subsidy in the amount of up to R500 per month for the next four months per qualifying employee in the private sector. The employment tax incentive (ETI) is paid to employers who employ qualifying employees (including the youth) and is considered a labour cost sharing mechanism between government and the private sector to incentivise employment. The existing ETI is aimed at supporting qualifying employees who earn below R6500 per month on a sliding scale based on salary where the employer is registered for Employees Tax. The employer is entitled to reduce the total amount of its PAYE liability by setting off the ETI amount calculated in respect of that month. Where there is no PAYE to set off against the ETI amount, the employer will be entitled to a reimbursement of the total ETI amount available as at the end of each PAYE reconciliation period. A further proposal aims at reducing the reimbursement period to a monthly period.

Easing of Covid-19 restrictions that allow limited transport of children during lockdown

On 7 April 2020, the Department of Social Development published amended Regulations in Notice 455 in Government Gazette 43213, made under the Disaster Management Act, relating to parents who have joint custody of children.

Parents who have joint custody of children are now allowed to transport the children from one house to another during the lockdown period, but must adhere to the following:

·         The parent transporting the child must have the original court order, or at least a copy thereof, outlining the existing joint custody responsibilities with them while travelling; and

·         The house of the parent where the child will be transported to, must have no signs of anyone living in the house with the COVID-19 virus or anyone that has been in contact with a person that has the COVID-19 virus.

The amendment came into effect on the date of publication of the Notice.