WHY YOU MUST MAKE A WILL – NOW!

“The best time to plant a tree is twenty years ago.

The second best time is now”

(Wise advice for procrastinators from ancient China)

It’s easy to procrastinate when it comes to making a will. None of us wants to dwell on our mortality, but of course the reality is that it’s a not a case of planning for “If I die”. We have to plan for “When I die”.

So no matter your age, if you haven’t yet got around to making your will, delay no longer. You owe it to yourself and to your loved ones to avoid dying “intestate” (without a valid will).

Why? The risks of having no will

Dying intestate means –

You forfeit your control over how and by whom your deceased estate is wound up. Rather make your own choice of an executor – someone you can trust to wind up your estate with independence, competence and a minimum of delay.

You forfeit the opportunity to nominate a suitable guardian for your minor children, and any money due to them could end up languishing in the Guardian’s Fund.

You forfeit your control over how your worldly goods are distributed. If you die without a will, our law prescribes who inherits what. And that could cause untold hardship and distress – for example you could unwittingly leave your spouse trying to survive on only a “child’s share” of your estate.

Have a professional draw your will

It’s not just a matter of complying with legal formalities but also of ensuring that effect is given to your true wishes, as simply and clearly as possible. A professional can also advise on a myriad of other considerations – protection of minors, tax planning, liquidity, safe custody for your will etc. On the other hand a poorly drafted or executed will is a recipe for delay, dispute and legal costs. A bitter court case could ignite a family war, and will certainly be an expensive and distressing experience for your loved ones at the worst possible time for them.

A safety net – better than nothing, but…..

There is one safety net – even if your will doesn’t comply with all the legal formalities, your heirs can still ask the High Court to validate it. So although only a signed original will is normally accepted as valid, in appropriate cases an unsigned will, or a copy of a will, can be validated by court order. Even where a will has been lost or destroyed altogether – and not even a copy is available – a Court may accept a “reconstructed” will provided it is “satisfied that the reconstruction is both accurate and complete”.

Two bitter family fights prove the point

Having that safety net is certainly preferable to dying intestate, but of course it’s very much second prize for your heir/s to have to spend time and energy and money on asking a court to rectify a poorly drawn or executed will, particularly when a family goes to war with itself as a result.

By way of illustration, a recent High Court case concerned a fight between a brother and sister over the validity of a document, purporting to be their mother’s will but (a) available only as a copy and (b) non-compliant with the legal formalities (it wasn’t signed on each page by the mother and witnesses). On the facts (including the evidence of a handwriting expert), the Court dismissed an allegation that the mother’s signature on the document had been forged, and authorised the Master of the High Court to accept the document as the mother’s will. All the family acrimony, delay and expense could have been avoided had the deceased executed a legally compliant will, and ensured its safe-keeping.

Another case, involving a dispute between a mother and daughter over who was to inherit the father’s estate, shows just how much weight a validly-executed will carries in practical terms. The father had left his entire estate to his daughter in a 1992 will which complied with all legal formalities. The mother however asked the Court to rather accept a reconstruction of another “will”, allegedly executed ten years later in 2002 and this time appointing the mother as sole heir. In the end the mother was unable to convince the Court to overturn the 1992 will – she inherits nothing.

Last but not least – diarise a regular review!

Once you’ve made your will, review it at least annually. Take particular account of life events like marriage, divorce, deaths, births, retirement etc. Take full advice again if you want to make any changes – they can only be made in a valid “codicil” (amendment or supplement to an existing will).

EMPLOYERS: ANOTHER STRIKE WARNING FROM OUR COURTS

Last month we considered the case of a trade union fined R500,000 for contempt of court after it failed to take sufficient steps to dissuade and prevent its members from continuing with “violent and unlawful actions” during a strike. This month we turn to the other side of the coin – the very strong protections which our law affords to employees who lawfully exercise their right to strike.

In a nutshell, any dismissal of strikers will be automatically unfair “once it has been established that their participation in the strike was the ‘main’ or ‘dominant’, or ‘proximate’, or ‘most likely’ cause of the dismissal”. And our courts show no mercy to employers found guilty of any automatically unfair dismissal.

A recent Labour Court decision illustrates the point. A security industry employer had, following disciplinary hearings, dismissed employees who were absent from work without permission during a protected national strike. The employer claimed that the reason for dismissal was not participation in the strike, but rather a breach of its disciplinary code prohibiting unauthorised absence from work – specifically the code recommended dismissal if three consecutive shifts were missed. It was, said the employer, up to the employees to appeal their dismissals and explain that they were participating in a protected strike, in which event they would have been reinstated.

The employer penalised

Not so, held the Court. Finding that “the real or proximate cause for the applicants’ absence from work, and thus for their dismissal, was their participation in the national protected strike”, the Court held their dismissals to be automatically unfair. It awarded substantial (15 month) compensation payments to the dismissed employees, commenting that in cases of automatically unfair dismissal a compensation award goes beyond damages or monetary loss. It is also designed “to send a clear message to all employers, who may be tempted to dismiss employees for any of the prohibited reasons, that such conduct is totally unacceptable and would be met with severe disapproval by this court.”

BE CAREFUL SIGNING SURETYSHIPS! AND WHAT TO DO WHEN THINGS GO WRONG

R16,6m – that’s how much (plus interest and costs) the High Court recently ordered two sureties to cough up in their personal capacities. The sureties had, as trustees of a property development trust, signed surety for the trust’s loan from a money-lender.

The problem with suretyships of course is that you tend to sign them at the start of a venture, when it seems like a safe and sensible thing to do. It’s only later, when the principal debtor unexpectedly runs into financial difficulty, that you start panicking – and by then it’s too late.

Three things to do before you sign

Understand fully and accept the risk you are taking when you sign personal suretyship for anything. Our law reports are full of failed attempts by sureties to escape their liabilities. In this case for example, although the suretyship agreement itself was unclear as to the nature and extent of the trust’s debt, the money-lender was allowed to introduce additional evidence to remedy that.

If you have no choice but to sign suretyship, at least read and understand everything before you sign, and try where you can to limit your liability as much as possible.

Most importantly, take legal advice upfront – if things go wrong, it will pay handsome dividends later on.

Your suretyship is called up: what now?

The basic requirements for validity of a contract of suretyship are simple – it must be in writing, it must embody the terms of the suretyship, and it must be signed by you (or by your authorised agent). But there are times when you will be able to challenge the validity of a claim against you – so take advice before you pay anything (or commit to doing so).

TAX RETURNS – MUST YOU SUBMIT THIS YEAR?

If you earn no more than R250,000 gross per annum (sharply up from R120,000 last year) you don’t need to lodge an income tax return provided that –

You earn a salary from one employer only, and PAYE has been deducted correctly

You have no other source of taxable income such as rental income, or interest exceeding the annual interest exemptions (R22,800 if you are under 65 or R33,000 if 65 or older)

You aren’t claiming deductions like business travel expenses, medical expenses or retirement annuities.

This is a simplified summary of SARS’ requirements – take advice in doubt, you face substantial penalties and even prosecution if you need to lodge a return but don’t.

THE AUGUST WEBSITES: TRAIN YOUR BRAIN!

Whatever your age and stage in life – whether you are a student, an employee, a business owner, retired or just wanting to boost your quality and enjoyment of life generally – increasing your brain power is a great way to maximise your potential.

And there is growing evidence to suggest that engaging in regular mental exercise can be beneficial in both –

Optimising healthy minds, and

Preventing (perhaps even reversing) cognitive decline (Alzheimer’s, dementia etc) – see for example the Prevention article “Smart New Strategies to Ward off Dementia” at http://www.prevention.com/health/brain-games/exercise-and-mental-stimulation-prevent-dementia. “Use it or Lose it” – in relation to both mental and physical fitness – is the underlying message.

The Internet is full of sites offering free “brain training” – Google for them, try Prevention’s “7 Brain Games To Make You Smarter” at http://www.prevention.com/health/brain-games/games-make-you-think or work your way through the sites listed on “Ten Places to Train Your Brain For Free” at http://www.braintraining101.com/ten-places-to-train-your-brain-for-free/.

If you want something more structured and are happy to pay for it (sign up first for the limited-access free account to test before you buy) go to Luminosity at www.luminosity.com. Its online personalised programs (“based on serious neuroscience”) are hugely popular – they have 25 million subscribers – and promise to enhance your mental capabilities under the headings Memory, Speed, Flexibility, Attention and Problem Solving.

The easiest way to get going on Luminosity is to download an app for your mobile device or an add-on/extension for your browser. Create your free account and choose which areas in each category you want to improve. Then play their daily online “games” (actually exercises “designed by neuroscientists to improve core cognitive functions”). The games are great fun and you can start off free, so give them a try – whether you buy into the scientific claims or not.

Have a Great August!