Know Your Money with Bronwyn Waner and Craig Finch
Know Your Money with Bronwyn Waner and Craig Finch
128. Your Final Testament: Why Proper Will Execution Matters More Than You Think
What happens when your final wishes aren't legally binding? Attorney Charl Du Plessis pulls back the curtain on the high-stakes world of will execution in this eye-opening conversation about estate planning essentials.
Most people don't realize that seemingly minor technical errors can completely invalidate a will. Charl walks us through shocking real-world examples where small oversights led to devastating consequences - like a will deemed invalid because of a 13-centimeter gap between text and signature, or when a commissioner signed in their capacity as an attorney rather than explicitly as a commissioner of oaths. These technicalities might seem trivial, but they've forced families into protracted legal battles costing hundreds of thousands of rand.
The discussion takes an unexpected turn when Charl reveals the Roman-Dutch legal principle that prevents someone from inheriting if they caused the testator's death - even negligently. He shares the astonishing story of the De Wett case where a wife who arranged for her husband to be "confined to a wheelchair" (but was instead killed) tried to claim she should still inherit. This principle extends to accidental deaths too, potentially preventing a spouse from inheriting if they caused a fatal car accident through negligence - unless your will specifically allows for it.
Beyond the legal formalities, Charl offers practical guidance on protecting your family during the lengthy estate administration process, emphasizing the importance of including maintenance provisions to support dependents while estates are being settled. His insights underscore why professional estate planning isn't just about distributing assets - it's about ensuring your final intentions will actually be honored. Ready to take control of your legacy? Start by understanding the critical legal foundations that make your will truly valid.
Contact Charl on:
Charl Du Plessis
Charl du Plessis Attorneys Inc. | charl@marclaw.co.za | +27 83 292 1418 |www.marclaw.co.za
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www.growthfp.co.za
Hello everybody, welcome to Know your Money. I'm Bronwyn Wehner and I'm Craig Finch, and we are from Growth Financial Planning. We hope you enjoy our podcast. Hi everybody, we've got Charles Duplessis, who's an independent attorney specializing in trusts and wills and estates. Charles, good to see you again and can you introduce yourself to our clients and our guests?
Speaker 2:Thank you very much, craig. Thanks for the opportunity. Thanks, bronwyn. Yes, I'm a practicing attorney in Johannesburg. I'm on Notary Public. I have my own firm, charles Du Plessis Attorneys, and we do a lot of transactional work, and part of the transactional work are also estates, wills and trusts. What we have found, craig, is that for your clients for example, when somebody had to pass away, how long it takes for a state to be wound up there are many hurdles and one of the biggest hurdles is a will that is not validly executed. It can cause tremendous prejudice and suffering for your clients who pass away their family, for the descendants and family members, clients who passed away their family, for the descendants and family members. What I'd like to discuss with you is just a couple of aspects that will prevent a scenario happen where there's unnecessary delays and your family or president is thereby or the estate's family is president is thereby. So let's just start basically with a will, if I may, yes, please, and just say that a a will, if I may yes, please?
Speaker 2:And just say that a will is a very powerful document and that's basically because the status is no longer there to be questioned. What did you in fact mean? So make sure that your will is unabiguous, clearly drafted and that it cannot be challenged. Now. Wills get challenged for various reasons. And that it cannot be challenged Now.
Speaker 2:Wills get challenged for various reasons Wife, aggrieved family members, previous spouse divorces, and it happens. So in order to avoid a scenario like that, let's just look at some of the formalities. And one thing I just want to add is that people may say, yes, but I can always get relief from court. I can go to court. Be careful about running to court. You want to avoid that at all costs. Just to give you a quick example an advocate today would cost you 40,000 rand and that's just to be one day in court. He'll prepare three days.
Speaker 2:They normally say the general rule is three days. That's 120,000, 140,000 rand plus the attorney and you go to court. So it is unnecessarily expensive just to go to court and then often it goes to the Supreme Court. It takes years, so there's a big cost involved, and avoid that. So let's just get to the formalities of a will. It's governed by Section 2 of the Wills Act. The Wills Act comes from 1953, but it's been amended on a regular basis. The first thing, a will must be written and must be signed by the testator. At the end of it.
Speaker 1:So written, no verbal. What happens if the person can't write?
Speaker 2:If the person can't write, then he can dictate it to somebody, tell somebody who it is, and the will does provide for somebody to write the will and sign the will in his presence and by his direction.
Speaker 1:Okay, so these.
Speaker 2:But if that happens, then there must be a commission of oath that certifies, at the back of the will, that he has identified and satisfied himself as to the identity of the testator and that there's in fact the will of that testator.
Speaker 1:And just in terms. Testator is the person writing.
Speaker 2:The testator is the deceased.
Speaker 1:So you can write it on behalf of somebody.
Speaker 2:yes, so now be careful on the, because the courts take a very strict approach. So they have, and, for example, a commissioner of oaths. He had certified in his capacity as he was the family attorney and came out certified and he signs it as an attorney. The court held that that will is not valid because he didn't certify as commissioner of oaths. Oh, my.
Speaker 2:And when you sign it says sign at the end hereof. And there's been a case where there's a two page rule where there was a 9cm gap and a 13cm gap, where the last word of the will was where you signed. That rule was held to be invalid because it wasn't at the end, so at the end it means every page. No at the end, because it wasn't at the end.
Speaker 1:So at the end means every page.
Speaker 2:No, at the end. You must sign it at the end. Okay, not every page. The status signs every page, every page okay, a witness doesn't have to sign every page. He signs at the end, but a commission of oath, in our example, he has to sign every page as well.
Speaker 2:So be careful, therefore. So we have, don't leave gaps at the end and don't leave a 13 centimeter gap. And then also the witness the will says it must be in the presence of two people there, so don't be. For example, say, I'm nervous as a witness, I'm quickly going to have to wash my hands and just pop up to the bathroom and wash your hands because you've got sticky hands, or something like that. It has been challenged that the witness is not present. Both witnesses present. Both witnesses present.
Speaker 1:So you can't say on Sunday, Sunday we'll sign today and then take it to the neighbour and then take it to the other neighbour.
Speaker 2:You can do that. That has happened. Okay, the World's Act does allow for that, where the testator has signed. He then got in his car and he drove to his business colleagues, but there he told them both of them present this is my signature. I've verified it's my signature. Please sign in my presence that the World's Act does allow for.
Speaker 1:So you can't sign it and then drive down the road and get your neighbour and then drive to another neighbour.
Speaker 2:You could, if you no, the two witnesses must be present.
Speaker 1:The two witnesses must be together when they are signing as witnesses. And the witness can't be someone named in the will. Correct, yeah, you cannot.
Speaker 2:A witness let's be very careful of those as well. A witness mustn't be somebody that takes a benefit under the will. Okay, for example, I draft the will for my dad and my wife wanted to be the witness because I took benefit of it. You can't have that, so you must be an independent related party benefit on it. You can't have that, so you must get an independent-related party. Having said that, the courts have had a very strict approach in the past. In 1992, they brought in and it led to a lot of hardships. For example, why would my will be invalid just because there was a 13-centimetre gap?
Speaker 1:Yeah.
Speaker 2:Or it's obvious that the attorney is a commissioner of a his office. Now the whole will is invalid because of that. So in 1992, there was an amendment act that came in and under that it does give the court a leeway to interpret the will according to the intention of the testator and the court will look at the intention of the testator. And the court will look at the intention of the testator and make sure that does. This will reflect his intention and interpret it like that. But again you have to go to court.
Speaker 1:Okay.
Speaker 2:And we got those costs. And the more you will Delay as well Delay the more your costs. Your will deviates from section two of the Wills Act regarding the formalities, the more difficult it's going to be for court to be satisfied.
Speaker 1:What happens, Charles, if you can't find the original will?
Speaker 2:That is a Well. You can't find it, Is it photocopy?
Speaker 1:You've got a copy on file, but you haven't got the original.
Speaker 2:Yeah, the photocopies are not generally accepted as originals, but you haven't got the original. Yeah, the photocopiers are not generally accepted as originals, but you can bring. The world does provide that. That is the best evidence that you've got.
Speaker 1:So master could accept it.
Speaker 2:Could accept it, but there's a cost. But there's a cost. You have to go to cost, get a court advice again, go through a process of the court being satisfied.
Speaker 1:So the master might say I don't accept this, you've got to go to court and prove it. And then you've got to go to court, and then all those costs.
Speaker 2:So the court application. So just avoid these sort of things as much as possible. So get your life sorted before that. For example, I'm guilty of that as well. My father said he died of cancer, and those who've had a parent you'll know that the last few months are hard, difficult. He was in the bed. You don't want to go, as we had to go, when he's in the ICU suffering from cancer, to give him sound of will, and there can be challenges to that. Now, one aspect that I would also like to bring to your attention is that there's a concept in our law and people are very funny, we see 22 very funny cases there is a concept in our law that says, which is a Roman Dutch principle, says that if you wrongfully cause the death of somebody, you cannot inherit under that will, and that is to prevent bad faith and people.
Speaker 1:So somebody murders their wife?
Speaker 2:Somebody murders their wife. The leading case is one of the cases really funny case well, not funny, it's actually tragic was the case of the De Wettts the wife. They had a terrible marriage. Mrs De Wettette organized for her she and her lover to assault her husband so grievously and she said in court with intention that he's confined to a wheelchair. She opened the door, the lover came in and assaulted her husband but he shot him 18 times and he went overboard.
Speaker 1:And her defense was that it was never in order to be found guilty.
Speaker 2:He didn't listen to the brief, did he? Yeah, In order to be found guilty of murder, you must have intent, and she said it was in court. It was never my intent to murder him. It was only my intent to put him in a wheelchair, so I should be able to benefit.
Speaker 1:Did he die?
Speaker 2:He died. So she said I was never part. To be guilty of murder he must have intent. And she said it was never my intent to murder him, it's only to put him in a wheelchair. So I must be able to benefit.
Speaker 1:The lover definitely didn't get the brief.
Speaker 2:So I must therefore be entitled to benefit on their insurance policies and in their estate. And the judge looked at it and through public policy considerations, he did not allow her to benefit under the will. But to take that one step further and again, as it goes, to show how it happens to practical families is that that concept is happens to practical families? Yeah. Is that that concept is extended to negligence? Okay. So if you were negligently caused somebody's death, you also cannot. There's a possibility. You cannot inherit, so be careful that you can provide for a clause specifically in your will that a person that causes your death negligently can still inherit. But it must be in your will. So, for example, with my wife, her mum was quite ill. She passed away in November and she would have mums Monday. On Monday she'll take her to the doctor, go shopping, all those sort of things. What happened to? My wife Went through a red robot and her mother was killed and it's found that she was negligent.
Speaker 2:She was scratching around in a bag to get a phone or she did whatever. And there's somebody else who's lodged the other party lodged a claim and they found to be negligent. And then there's a sibling that comes and says Charles' wife caused this accident negligence.
Speaker 2:Yeah, she wife caused this accident negligence she mustn't inherit, because then I'll get more. So in your will is a clause you can insert that provides for that. Another aspect is also that if you're suffering not suffering but your family haven't got any well, if the main breadwinner dies, that you can provide in your will that maintenance is paid between the period from the death until your estate is wound up. So you can direct the executive to pay a monthly maintenance to your wife or her maintenance and support or say whatever the amount is that you require. Insert that in your will so in this two-year period when it takes for estates to be wound up, that at least your family have got money and they can carry on their normal lives, not have to wait for this estate to be wound up.
Speaker 1:Awesome stuff, Great Charles. Thank you so much Good insight on that, because you generally think, oh, quickly sign the will and it's an easy document, but it's actually more severe. Not severe, but it's a really important document. We believe that in our practice it's such an important document, but I think when you sign it you must realise how important it is and what you're trying to achieve.
Speaker 2:It's a very important document. Regretfully, people don't attach enough value to it. I'm not going to go into what we can do in the later session, perhaps on creating trust estate planning all this sort of stuff. But you make sure hurdle number one get a valid will properly executed by a specialist.
Speaker 1:Brilliant. Thank you so much. Thank you, thank you. That was great. Thank you for listening. If you have enjoyed this podcast, would like to subscribe, please visit our website, wwwgrowthfpcoza. The information we have provided in this podcast is our personal opinion. For more detailed information, please discuss your financial situation with a financial planner.