Tracing Dynamix

Is an unsigned electronic will valid?
Posted on 09 November 2015

“My father recently passed away. His will was drafted by a financial planner who e-mailed the final draft to him, but which he never signed. We found the email with the will attached but no further correspondence or documentation between the financial planner and my father regarding the content of the will or his wishes. Is this will valid?”

The Wills Act 7 of 1953 requires strict formalities to be complied with for a will to be recognised as the testator`s final will. These formalities include:

1. that the will is signed at the end thereof by the testator;
2. that such signature is made by the testator in the presence of two or more competent witnesses present at the same time and who signs the will in the presence of the testator; and
3. that if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator.

It is essential that the requirements for a valid will be met to convincingly prove that a will is, in fact, valid on the face value thereof and a reflection of the intention of the testator to be his final will and testament. If there is any doubt as to whether any of the formalities has been sufficiently met, our courts will need to be approached to condone non-compliance with the formalities for a valid will, before the deceased’s estate can be administered in terms of the will.

Our courts recently held that a court may, if it is satisfied that a document drafted by a person who has since died, was intended to be his will, order the Master to accept that document as the deceased’s will even though it does not comply with all the formalities for the ex*****on of a will.

As your father’s will was not executed (signed) in any manner (by himself or witnesses), a personal involvement by your father during the drafting process will need to be shown if it is to be argued that the document is indeed a valid will. As no communication or instructions conveying your father’s wishes could be found to prove that your father instructed the financial planner to incorporate specific wishes into his will, the requisite personal involvement element is missing, and as such it will be difficult to show that the will was concluded personally by your father – even more so because it was drafted by the financial planner. Accordingly, a court will probably not find that the will in fact contains the wishes of your father.

Where the will was not drafted by your father, the will must then at least have been signed in order to be valid. Here also, as your father’s signature was nowhere to be found on any part of the document, obtaining condonation of the will on the grounds of ex*****on would be highly unlikely as it cannot be shown that your father ever saw the final product, and no signature (or even partial signature) can be provided to prove his approval and ex*****on thereof.

To summarize, I believe in your case given the provided facts, it would be very difficult to prove that the electronic document represents the final will and testament of your father. This does not mean that in general you can never get condonation, but that to do so it will have to be shown that a will was either drafted (or that there was personal involvement in the drafting) or signed (in full or partially) by a deceased testator.

Be wise and review your will regularly
Posted on 16 July 2015

I have a will which my wife and I had jointly drawn up by a friend just after we were married. I think the will is still ok, but I am not sure. We have three children now and I’m worried what will happen to them should my wife and I pass away or even be divorced. Should I let someone have a look at my will?

Firstly, and most importantly, it is vitally important that you do have a valid will, as without a valid will, one leaves the decision as to what must happen to your estate and to your children in the hands of others.

To determine whether your current will is valid will depend on a number of factors including whether the will was validly executed in terms of our law. Our Wills Act 7 of 1953 establishes five basic requirements for a will to be valid, namely:

1. The will must be in writing, whether handwritten or typed or a computer printed document.
2. The testator must have signed the will at the end thereof.
3. The signature of the testator must be made in the presence of two or more competent witnesses. Witnesses are considered competent if they are 14 years or older and are competent to give evidence in a court of law.
4. The witnesses must attest and sign the will in the presence of the testator and each other.
5. Should the will be longer than a single page, each page other than the page on which it ends must be signed by the testator.

If your will does not meet these requirements, it may not be valid. If it does,it may be valid, but you may also have to question whether it is still relevant. A will should not be something that is concluded only once in your lifetime, particularly where there are changes in one’s status or position in life eg. marriage, divorce, children, inheritances, etc. It is always highly advisable to revisit your will and update it to your particular circumstances with the help of an estate planning specialist. For example, if you have been divorced and did not change your will, it could happen that your ex-spouse inherits your entire estate upon your death in accordance with the will you executed when you were still happily married! Our law only gives a period of three months following a divorce for you to amend your will during which time any bequest to your ex-spouse will be deemed revoked. Following this three month period, any bequest will go to your ex-spouse if you did not change your will.

Another aspect to consider is who has been nominated as the executor of your will, the guardian of your children or the trustees of a trust to be established on your death for the benefit of for example your spouse and children. Usually testators tend to nominate friends or family for these positions, not knowing that such a role may disqualify them from inheriting if they too witness the signing of the will. Often, when making a will before there are children, testators will also not address issues relating to the legal guardianship or care of the children in the unfortunate event of the death of the parents. This could be a grave oversight particularly where minor children are involved.

When it comes to a bequest to your minor children, you may think that just bequeathing your estate to your children is the right thing to do, not knowing that minor children are unable to inherit cash or property, and that should you pass away, their bequests will fall to and be administered by the Master of the High Court’s Guardians Fund. The guardian or person caring for the minor children can claim maintenance from the Guardian’s Fund by way of an application. Upon reaching the age of majority, or getting married or in terms of a Court application, the money in the Guardian’s Fund can be claimed by your children. But again, one may ask – is it not dangerous that a young adult come into possession of his or her inheritance and potentially squander such recklessly? By stipulating a different inheritance age in your will or even providing for a testamentary trust to administer your assets on behalf of your children, you may help ensure that they are looked after in the future.

To answer your question. Yes, it is highly advisable that you have an estate planning specialist review your will and help ensure that it is appropriate to your specific circumstances and creates the necessary planning to avoid legal entanglements for your loved ones in case of your death.

The previous owner did not pay. Can the municipality now cut off your electricity?
Posted on 16 July 2015

The municipality has notified me that it will disconnect my electricity supply because there are outstanding payments in respect of my property. However these outstanding amounts are not mine but belong to the previous owners from whom I bought the property last year. These accounts are nearly five years old! Can the municipality do this and cut off my electricity?

In the recent judgment of Stand 278 Strydom Park (Pty) Ltd v Ekurhuleni Metropolitan Municipality the applicant sought to obtain an interdict against the municipality preventing it from terminating the supply of municipal services to the property. The municipality wanted to terminate the services to the property because of 'historical debt' relating to the property ie. municipal debt in relation to property rates, taxes and charges for the provision of municipal services pertaining to all prior owners of the property.

In this case the court confirmed that a current owner (“current owner”) of property is not liable for arrear debt or charges on accounts held by previous owners of the property (“prior owners”) and a municipality is not entitled to terminate the supply of services to the current owner on the grounds that the prior owners of the property are indebted to the municipality.

The court however also confirmed the law as it currently stands - that a property can provide security for a municipal debt and that it may happen that a new owner's property is declared executable for the municipal debt of a previous owner and that the municipality can sell a property in ex*****on to recover such arrear debt. However the municipality must follow the following procedure:

• In the event that there is historical debt relating to the property, the municipality must first obtain a judgment against the party legally responsible for such debt i.e. the relevant prior owner.
• Only once such a judgment has been obtained and the prior owner fails to settle the historical debt as required by the judgment order, can the municipality proceed to obtain an order to declare the security in relation to that historical debt to be executable - the security being the property of the current owner.
• To obtain such an order against the property, the municipality must join all parties having an interest in the matter, such as the current owner and bond holders (with registered bonds over the property) in order to allow each party to state their interest and defend the granting of an order to execute against the property.
• The court will then have to decide whether the property of the current owner may be declared executable to recover the amount of the outstanding judgment owed by the prior owner.

Municipalities may accordingly not disconnect or threaten to disconnect any services or declare a property executable to recover historical debt against the property without obtaining a court order. If any such action is threatened it is advisable that you immediately consult with an attorney to assist you with defending your rights.

Can landlords switch off your electricity?
Posted on 11 June 2015

You’ve just gotten home on a cold winter night and plan to sit snuggly in front of your heater watching a movie, when you realise - no electricity! Used to load shedding, you opt for a nice warm bath. But, alas the water is already cold. Infuriated, you pull out your phone to call your friend to complain about the state of affairs, when you notice the sms from your landlord informing you that he has cut off your electricity because you are in arrears with your electricity bill. But can he just do this?

It is a fundamental principle of our law that no man be allowed to take the law into his own hands. But what remedies are available to a tenant when a landlord has cut off his electricity - and on the other hand, what can a landlord do to limit his risk of a bad tenant just running up his electricity bill?

There is no rule in our law which grants a landlord the authority to cut the electricity supply of his tenant should that tenant be in arrears with his electricity charges. When a lease is concluded rights and obligations are created between the landlord and the tenant, which includes the right of the tenant to the undisturbed use and enjoyment of the leased property, and the obligation on the other hand to pay for rent, water and electricity.

If a landlord does take the law into his own hands and cuts off the electricity supply, the tenant has the right to apply to Court for a spoliation order showing that the tenant’s possession of the leased property was unduly interfered with or disturbed. The court can then order that the tenant be placed in the position he was before the landlord’s action, and the legal cost of the application will be for the landlords account.

But is the landlord without remedy? Does he remain responsible for outstanding rates and taxes on the property and if he can’t take matters into his own hands, how is he supposed to mitigate his losses?

In the recent case of Anva Properties CC v End Street Entertainment Enterprises CC the court allowed the termination of the supply of electricity to the leased property on the basis that the landlord had provided sound reasons justifying such termination and had laid a factual foundation for the relief sought. A landlord can therefore switch off a tenant’s electricity provided that the correct procedure is followed and a court order is obtained authorising the termination of the electricity supply.

If you are a landlord frustrated with a non-paying tenant, or a tenant deprived of his rights of occupation by an overzealous landlord, consult with an attorney or property specialist to find out what steps can be taken to redress the situation. The main thing is not to take the law into own hands, but rather use the mechanisms afforded by law to address the situation.