Conflicting Wills in South Africa: Legal Consequences and Precautions

A client asked: What happens if I don't revoke my first South African will where I leave everything to one person and then make a second will years later, leaving everything to a second person? What are the legal consequences?

Introduction

If you have a will and want to make a new one because of changed circumstances (for example you have since gotten married and have children) it is essential that your new will revokes the earlier will or wills.  The revocation clause would typically read: I revoke all previous wills made by me.

When a person fails to revoke their first will while making a second will that contradicts the first, it can cause significant issues during the winding-up process and distribution of assets.

Legal Consequences of Conflicting Wills

The legal consequences of having two conflicting wills can be complex and may include disputes between beneficiaries, uncertainties in estate administration, and potential challenges during the winding-up process. If both wills are considered invalid, the estate might be treated as if the deceased had died without a will, subjecting it to intestacy laws.

Precautions and Expert Guidance

To avoid these legal complexities and ensure that your estate is distributed according to your wishes, it is crucial to seek the counsel of a qualified estate planning attorney. They can assist in creating a clear and legally valid will, revoking any previous wills appropriately, and providing advice on additional estate planning measures, such as trusts, to safeguard your assets and mitigate potential conflicts.

Conclusion

Creating multiple wills with conflicting provisions can have serious legal implications. Seeking professional legal guidance and ensuring that your estate planning documents are up-to-date and consistent can help prevent disputes and ensure that your assets are distributed according to your wishes.

Court awards full parental responsibilities to mother in parental alienation syndrome case

 

TLD v BG [2023] ZAGPJHC 801

Summary

This is a case about an 8-year-old boy whose parents were never married. The court appointed a psychologist to investigate the situation. The psychologist found that the boy was in a difficult family situation, where he lacked empathy under his father's influence and was convinced that his mother and her parents were harmful. This condition is called Parental Alienation Syndrome and can harm a child's mental well-being. The court decided that the mother should have full parental rights for three months, and during this time, the child would get therapy to help him. The court also ruled that the child should have no contact with the father during this period to protect him from further harm.

Therapist's Findings

The expert reported that the child's psychological condition was very worrying. The child was at a greater risk than before, and his mental well-being was deteriorating rapidly. The family environment was chaotic and emotionally unstable, which was harmful to the child's growth. The expert was especially concerned about the child's lack of empathy when influenced by his father's beliefs. This suggested that the child might be losing his ability to understand his mother's feelings and experiences, raising serious concerns about his emotional development.

Court’s ruling

The court found that the child was at significant risk because his parents couldn't cooperate for his well-being. To protect him from further harm caused by parental alienation, the court took decisive action. The court gave the mother full parental responsibilities and rights (she now has the authority to make important decisions about how he is raised and taken care of). Additionally, the court granted her primary custody of the child for three months. To break the cycle of parental alienation and help the child recover, the court ordered that he should have no contact with his father during the three months. This was to shield him from any negative influence or manipulation from his father. During these three months, the child will receive therapy to address the emotional impact of parental alienation and work on building healthy relationships with both parents.

Conclusion

The court's ultimate goal with this ruling was to protect the child’s mental and emotional health. They recognized that intervention was necessary to ensure the best interests of the child. By granting the mother full parental responsibilities and temporarily limiting the father's contact, the court aimed to create a positive environment for his emotional healing and development.

 

Courts Must Only Adjudicate Based on Pleadings and Trial Issues

The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings.

Introduction:

In the Mashola case (22/2022), the Supreme Court of Appeal (SCA) had to determine whether a partial forfeiture order should be imposed on the husband’s pension interest/benefit held by the Government Employee Pension Fund (GEPF) following their divorce. This article discusses the legal principles involved in the case and analyses the court's decision.

Background and Evidence Presented:

During the trial, it was revealed that the husband had engaged in a long-standing extramarital affair, which had significant impacts on their marital estate. He made minimal financial contributions to the joint estate and transferred assets to his mistress. The wife had to resort to the maintenance court to compel her husband to contribute to the maintenance of their children.

Legal Principles Applicable:

The Divorce Act contains three key provisions relevant to this case. Sections 7(7) and 7(8) address the entitlement of spouses to a half share in each other's pension interests, while section 9(1) deals with the forfeiture of benefits. In the Wijker v Wijker case, the Appellate Division clarified the legal principles relating to section 9(1), establishing two key steps for the court to consider.

Analysis of the Decision:

The full court dismissed Mrs Mashola's appeal, arguing that she had condoned her husband's extramarital affair for nine years, which undermined her claim for a forfeiture order. However, the SCA found that condonation was not raised in the pleadings or during the trial before the High Court. The SCA emphasized that courts should not pronounce on claims or defences not presented in the pleadings, highlighting the misdirection of the full court in this case.

Furthermore, the full court failed to apply the two-pronged approach outlined in the Wijker case. The SCA held that the wife did not condone the extramarital relationship on every interpretation of the facts. The court considered various factors, including the humiliation caused by the affair being conducted publicly, the depletion of the joint estate, the husband's financial support of his mistress at the expense of his family, and Mrs Mashola's sole dependence on her salary.

Conclusion:

This judgment underscores the importance of courts adhering to the principle of adjudicating only on issues raised in the pleadings or during the trial. Pronouncing on claims not presented by the litigants constitutes an impermissible misdirection. In this case, the SCA upheld the appeal, finding that Mr. Mashola's substantial misconduct and Mrs. Mashola's direct financial contributions to the joint estate satisfied the requirements for a partial forfeiture order under section 9(1) of the Divorce Act.

The Process to Wind up a Deceased Estate

Notification and Death Certificate:

If your loved one passed away in a hospital, the medical practitioner will complete a BI-1663 form (notification of death) to certify the death. You will receive a copy.  If your loved one did not pass away in a hospital, the mortician will complete the form and hand it to the next of kin. You must take the BI-1663 form, with the deceased’s original valid South African identity card to the Department of Home Affairs which issues a death certificate. The funeral home or the Department of Home Affairs stamps ‘Deceased’ on the identity card or document of the deceased and punches a hole in the identity card.

Reporting the estate:

The estate of a deceased person must be reported to the Master of the High Court’s office in the area where the deceased lived. within 14 days from the date of death.

 

The person nominated to wind up the estate (the executor or his or her agent – normally a lawyer, accountant, or trust company) reports the estate at the offices of the Master, who issues Letters of Executorship in favour of the executor or executrix, authorising him or her wind up the estate.

 

If an executor is not specified in the will of the deceased, the Master will appoint one on the deceased’s behalf. The family may also nominate an executor if there is no will.

 

The following documents must be lodged:

 

• An original or certified copy of the Death Certificate and Identity Document.
• An original or certified copy of the marriage certificate.
• A declaration of marriage by the surviving spouse indicating the type of marriage.
• The original will and any annexures that may apply.
• A completed next-of-kin affidavit if there is no will in place.
• A completed inventory.
• A declaration to confirm that the estate has not been reported at another Master’s office.

 

Letters of executorship:

 

The master then issues letters of executorship authorizing the nominated executor to wind up the estate of the deceased. In estates worth less than R250,000 the Master issues Letters of Authority and the formalities are much less stringent.

 

Notice to creditors:

 

On receipt of the Letters of Executorship, the executor arranges the publication of a notice to creditors in a local newspaper and government gazette, inviting them to submit any claims against the estate, within 30 days.

 

Estate Account Submission:

 

Within 6 months of the issuing of the Letters of Executorship, the executor must submit an estate account (liquidation and distribution account) to the Master. This account gives effect to the wishes of the deceased in his will (or the laws of intestacy if there is no will).

 

Approval and Advertisement:

 

Once the Master approves the account, the executor has it advertised, and it lies for inspection for 21 days. If no objections are received within 21 days, he or she pays out the heirs and beneficiaries and transfers any fixed property.

 

Finalising the estate:

The executor then lodges proof of advertisement, proof of payment to heirs and creditors, bank statements, a tax clearance certificate and other required documents and asks the Master to confirm that the estate may be regarded as finalised.

The following words are commonly used when dealing with deceased estates:

Estate	the deceased’s assets and liabilities at the time of his or her death
Testator	a man who makes a will
Testatrix	a woman who makes a will
Dying testate	when a person dies leaving a will
Dying intestate	when a person dies without leaving a will
Executor	a man who distributes the estate under a will
Executrix	a woman who distributes the estate under a will
Letters of Executorship	letters issued by the Master, authorising the executor to wind up the estate

 

A Holistic Approach to Winding Up a Deceased Estate in South Africa

 

Introduction:

Losing a loved one is a deeply emotional experience that can be accompanied by overwhelming legal and financial concerns. We understand the challenges involved in winding up a deceased estate and want to assure you that you don't have to face this journey alone. At Bregman Moodley Attorneys Inc, we offer more than just legal expertise—we provide compassionate support to help alleviate the burden during this difficult time.

With a focus on providing expert legal assistance and addressing all aspects of estate administration, we strive to ensure a smooth and thorough process. In this guide, we will outline the steps involved in winding up a deceased estate.

Legal Requirements

When someone passes away, their estate consists of their immovable and movable assets. The primary objective of estate administration is to transfer ownership of these assets to the beneficiaries mentioned in the will or according to the Intestate Succession Act if there is no valid will. The Administration of Estates Act provides the necessary guidelines for administering a deceased estate.

Steps in the Process:

Understanding your needs: We begin by listening to your concerns and understanding your unique circumstances. Our empathetic team takes the time to comprehend your specific requirements, ensuring a personalized approach to winding up the estate.

Gathering essential documentation: We assist you in gathering all the necessary documents required to report the estate to the Master of the High Court. Our attention to detail ensures that nothing is overlooked, and the process moves forward smoothly.

Streamlining administrative tasks: Acting as your trusted agent, we handle the submission of reporting documents and obtain the crucial Letters of Executorship or Letters of Authority. This streamlines the administrative procedures, saving you valuable time and effort.

Facilitating effective communication: We acquire a power of attorney to communicate with creditors and debtors on your behalf. Our proactive approach ensures that all parties are kept informed, fostering transparency and efficient resolution of any financial matters.

Financial management made easy: We guide you in opening a dedicated bank account for the estate. This dedicated account simplifies financial transactions, ensuring that funds from debtors are received and managed efficiently.

Meeting financial obligations: We address expenses associated with disbursements promptly and diligently. By ensuring that all financial obligations are met, we pave the way for a seamless estate administration process.

Comprehensive estate assessment: We compile a detailed Liquidation and Distribution Account, meticulously documenting all income, expenses, and the distribution of surplus to heirs. This comprehensive account serves as a reliable reference for estate settlement and addresses any estate duty requirements.

Seeking necessary approvals: We seek permission from the Master to advertise the Liquidation and Distribution Account, adhering to the legal requirements. Our experienced team handles the necessary correspondence, ensuring a smooth and compliant process.

Transparent publication: We publish the Liquidation and Distribution Account in the Government Gazette and the Citizen newspaper, providing an opportunity for interested parties to review and raise any objections if required. Our commitment to transparency fosters a fair and inclusive approach.

Allowing for inspection: We facilitate a 21-day inspection period of the Liquidation and Distribution Account, providing an opportunity for interested parties to scrutinize the details. This period ensures transparency and addresses any concerns that may arise.

Fulfilling financial commitments: We settle any outstanding debts with creditors, ensuring that all financial obligations are met with integrity. Our diligent approach leaves no stone unturned, ensuring a fair and equitable distribution of assets.

Asset distribution: We oversee the distribution of remaining assets to the heirs in accordance with the wishes expressed in the will or the Intestate Succession Act. Our meticulous attention to detail ensures a smooth and just allocation process.

Compliance with tax requirements: We facilitate the process of obtaining tax clearance from the South African Revenue Service (SARS) with the assistance of a bookkeeper. This ensures that all tax obligations are met in a timely and compliant manner.

Finalizing the estate: We fulfil any remaining requirements, ensuring that the estate administration process is brought to a satisfactory conclusion. Our dedication to comprehensive and thorough estate administration leaves no loose ends.

Throughout this journey, we stand by your side, providing you with the compassion and understanding you deserve. At Bregman Moodley Attorneys Inc, we are committed to easing your burden and honouring the memory of your loved one with the utmost care. Please reach out to us, and together we can navigate the winding up of the deceased estate, offering solace and support when you need it most.

Please email Roy Bregman to discuss the quickest and most cost-effective way of finalising your loved one’s deceased estate, thereby giving you peace of mind during your period of bereavement.

Please go here to see the process that must be followed in winding up an estate, and the definition of commonly used words.