Principles of Interpretation of Wills

There is a maxim that ‘Where there’s a will there’s a relative’’. What happens when a relative who has been left out of the will, challenges it, or disputes a particular clause?

According to legal cases, the court's role is to understand and fulfil the testator's intentions as stated in the will, as long as it doesn't contradict the law. The court uses a method called the "armchair approach," where they put themselves in the testator's position and consider all relevant facts and circumstances known to the testator when making the will.

When interpreting a will, the court focuses on determining the testator's expressed intention from the language used in the document. They may also consider external facts and circumstances, but only to the extent that they help identify the subject or object of a disposition. Evidence that contradicts or alters the clear intention of the testator as reflected in the will is generally not admissible. The court's objective is to understand the testator's intention as expressed in the will, rather than speculating on what the testator might have meant.

The interpretative principles described in a landmark case, Natal Joint Municipal Pension Fund v Endumeni Municipality, emphasize the process of attributing meaning to the words used in a document. When interpreting any document, including a will, the court considers the language used in the context of the entire document, the ordinary rules of grammar and syntax, the purpose of the provision, and the background of the document's creation.

In summary, the key principle in interpreting a will is to give effect to the testator's wishes. Regardless of how clumsily worded a will may be, the court aims to understand the true intention of the testator from the language used in the document, ensuring that the testator's wishes are carried out.

See Wills and Deceased Estates | Bregman Moodley Attorneys JHB (bregmans.co.za)

 

 

 

Constitutional Court Declares Section 4 of Mediation in Certain Divorce Matters Act 24 of 1987 Unconstitutional

 

In a recent court case known as Centre for Child Law v TS [2023] ZACC 22, the Constitutional Court examined the issue of whether section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 was consistent with the Constitution. Section 4 of the Act pertained to the involvement of the Family Advocate in matters concerning never-married parents and married parents who were not going through a divorce, as well as their children.

Background

The case stemmed from the circumstances involving Mrs TS and Mr BN, who had two children together during their romantic relationship. When their relationship ended, Mrs TS got married and desired to relocate with her children to Australia. However, she needed Mr BN's consent, which she was unable to obtain. Seeking resolution, Mrs TS approached the High Court, requesting an order for the Family Advocate to investigate the best interests of her minor children and permit her permanent relocation to Australia, thus modifying the existing parenting plan.

Central issue

The central issue, in this case, was that the Family Advocate, in matters involving minor children, does not conduct investigations or compile reports when the parents have never been married, unless specifically ordered by the court to do so. The applicant argued that this provision was unconstitutional, as it created an obstacle for never-married parents and their children to access the services of the Family Advocate on an equal footing with married parents going through a divorce or parents who were married to each other. The argument emphasized the principles of equality before the law, non-discrimination, and the fair treatment of different groups of people.

Findings by Court

The court examined these arguments and concluded that section 4 of the Act unjustifiably limited the rights to equality and dignity, as well as the rights of the affected parents and children under sections 9(1), 9(3), 10, and 28 of the Bill of Rights. It highlighted that the Office of the Family Advocate could not become involved in such cases without a court order, while in divorce proceedings, its involvement was initiated by the simple submission of Annexure B. This distinction was seen as an unfair and unwarranted differentiation between different groups of parents and their children.

As a result, the court confirmed the High Court's declaration of the constitutional invalidity of section 4 of the Act. The confirmation meant that never-married parents and married parents not going through a divorce, along with their children, would now be able to access the services of the Family Advocate in the same manner as divorced or divorcing married parents. The court acknowledged the need for an interim solution while awaiting parliamentary intervention to address the flaw in the legislation.

Lesson learnt

The decision, delivered by Justice Tshiqi, was reached unanimously by the court. It signifies an important step towards equal access to services and protection of rights for all parents and children, regardless of their marital status or divorce proceedings.

Freedom of testation

In your will, you have the freedom to distribute your assets to whomever you choose. This means that you can determine who will receive your property, money, or other possessions after your passing. The principle of freedom of testation allows you to have complete discretion over the beneficiaries of your estate.

The Constitutional Court has accepted that freedom of testation ‘is fundamental to testate succession’ and that it forms part of s 25(1) of the Constitution, in that it protects a person’s right to dispose of his or her assets, upon death, as he or she wishes.

The Court, in Harvey NO and Others v Crawford NO and Others referred to this principle as follows:

‘The right of ownership permits an owner to do with her thing as she pleases, provided that it is permitted by the law. The right to dispose of the thing is central to the concept of ownership and is a deeply entrenched principle of our common law. Disposing of one’s property by means of executing a will or trust deed are manifestations of the right of ownership. The same holds true under the Constitution.’

Whether it's family members, friends, charitable organizations, or even individuals outside of your immediate circle, you have the authority to specify your chosen beneficiaries in your will. This principle recognizes and respects your autonomy and personal wishes regarding the distribution of your assets.

By exercising your freedom of testation, you can ensure that your assets go to those individuals or entities that hold significance to you. However, it's important to consult with a legal professional or estate planner to ensure that your will is properly drafted and legally valid, adhering to the applicable laws and regulations in your jurisdiction.

Remember that while you have the freedom to distribute your assets as you please, it's also advisable to consider the potential implications of your choices. It can be helpful to think about your loved ones' needs, financial situations, and the overall impact your decisions may have on them.

Removal of Executor: Understanding the Process and Requirements

Introduction:

When someone passes away, the administration of their estate is carried out by an executor appointed to handle their affairs. However, there are circumstances where an executor may not fulfil their duties adequately, leading to the possibility of their removal from office. In this article, we will explain the process and requirements for removing an executor.

Responsibilities of an Executor:

Executors have fiduciary responsibilities, which means they must act honestly, diligently, and with fairness and compliance. If an executor behaves in an undesirable or detrimental manner, such as gross incompetence or dishonesty, provisions exist for their removal.

Grounds for Removal:

Under Section 54(1)(a)(b) of the Administration of Deceased Estates Act (the ‘Act’), there must be valid reasons for removing an executor from office.

Removing an executor is not a decision taken lightly. The Master of the High Court or the Court must be convinced that the executor's conduct warrants their removal, as it is deemed undesirable for them to continue in their role. A mere disagreement between the executor and beneficiaries is not sufficient grounds for removal, as established in the case of Oberholzer NO and others v Richter (2013) 3 All SA 205 (GNP).

Substantive and Procedural Requirements:

Section 54 of the Act outlines the criteria for removing an executor. This includes instances such as incapacity, appointment through an invalid will, or misconduct resulting in a conviction for offences like forgery, theft, or fraud, with a subsequent prison sentence or a fine exceeding a specified amount. According to Section 54(2) of the Act, before removing an executor, the Master of the High Court must send them a registered letter stating the reasons for the removal. The executor has the right to apply to the Court within thirty days of receiving the notice, seeking an order to prevent their removal. This ensures that the principle of audi alteram partem (the right to be heard) is upheld.

Conclusion:

In cases where serious allegations regarding an executor's conduct arise, it is the responsibility of the courts to investigate and determine whether the individual is fit for the role. The Master does not have the authority to investigate the validity of complaints. 

What to Do When You Receive a Call from a Debt Collector for a Prescribed Debt

Dealing with Prescribed Debt: Your Rights and What to Do

What is the Prescription of Debt?

Prescription of debt refers to the legal timeframe within which a debt can be enforced through legal means. In South Africa, the Prescription Act stipulates that the basic period of prescription is 30 years for a judgment of debt and 3 years for any other debt. After the prescribed period has passed, the debt is considered extinguished, and you cannot be forced to pay it.

Prescribed Debt vs. Debt Written Off:

It's important not to confuse prescribed debt with "debt written off." Credit providers may choose to write off a debt, but this does not eliminate their legal right to collect it. Prescribed debt, on the other hand, is completely extinguished and does not require payment.

Dealing with calls from debt collectors

If you receive a call from a debt collector claiming you owe a debt that has prescribed, it's important to know your rights. Read this article to understand what to do when faced with such a situation and how to protect yourself.

Receiving a phone call from a debt collector can be unsettling, especially when they demand payment for a debt you have no recollection of. In some cases, this could be an attempt by debt collectors to collect on a prescribed debt, using tactics to pressure you into making payments. Understanding your rights and knowing how to respond is crucial. This article will explain what prescription of debt means, how it affects you, and what steps to take if you receive such a call.

Tactics Used by Debt Collectors:

Debt collectors often employ deceptive tactics to collect prescribed debt. One common strategy is to request a small payment, such as R20.00, to "settle" the debt. However, any payment made, regardless of the amount, can restart the prescription period, making you liable for the full debt again. Similarly, any written acknowledgement of the debt also interrupts the prescription period.

What to Do When Contacted by a Debt Collector:

·         Stay calm and don't confirm or acknowledge the debt: If you believe the debt is older than 3 years and you haven't made any payments or signed an acknowledgement in the last 3 years, avoid confirming or acknowledging anything over the phone.

 

·         Refrain from making any payments: Making a payment, no matter how small, can restart the prescription period, reviving the debt and obligating you to pay it in full.

 

·         Seek professional advice: If you're unsure about the status of the debt or how to respond, it's wise to consult with a legal expert or debt advisor before taking any action.