Wills: Five Frequently Asked Questions

This weekend might be a great time to get your ducks in a row and write a Will!

DIY Wills are, however, dangerous and can be declared invalid. If you are a Legal Hero policyholder, rather contact your hero and ask for professional assistance.

5 FAQ's answered: 

1. What are the basic formalities?

a) Write/ type (and print out) your Will and sign at the end of the document;

b) Initial every other page if your Will is longer than a page;

c) Confirm your signature in the presence of two competent witnesses not younger than 14 years;

d) Ask your witnesses to sign the Will at the end of the document in the presence of each other and you (the testator);

e) If you are unable to sign the Will, a mark (such as an “x”) would suffice if the Will is executed (signed and witnessed) in the presence of a Commissioner of Oaths who will then attend to certify the Will as soon as possible.


2. Could a Will without a date be declared invalid?

A Will without a date is not necessarily invalid, but a date would make it easier to interpret your wishes should there be more than one will. Note: a new will does not necessarily revoke our previous Will/s. Wills are read in conjunction with one another as far as possible, unless you explicitly say ‘this Will revokes all previous Wills…’


3. Is it necessary for my two witnesses to actually read my Will?

No, it is not a requirement. The witnesses merely sign to advise that it is in fact your signature on the document/ they saw you sign the document.


4. Can my parents or spouse witness my Will?

Yes, BUT if they do, they will be unable to inherit in terms of the will. A beneficiary to your will may NOT sign as witness. If they do, they will be disqualified from inheriting. You should, however, inform your parents/ spouse/ attorney/ trusted party of your Will and where it is kept. He/she would need to supply the Will when notifying the Master of the High Court of your passing (the deceased estate must be reported within 14 days).


5. Explain to me why I need to appoint an executor in my Will?

The Executor is responsible for administering the estate. Duties include paying creditors of the estate (your debts), receiving claims (if you had debtors), pay the heirs to the estate, etc. whilst in constant communication with the Master of the High Court. If you do not nominate an Executor, the Master of the High Court may appoint an executor. An Executor may also not sign the Will as a witness. If so, he/ she may not act as the appointed Executor. An Executor may, however, inherit in terms of the Will.



Note: a will is presumed to be valid until the invalidity thereof has been proven on a balance of probabilities by the person alleging same. It is strongly advised that you seek professional assistance.

How to Apply for a Protection Order

1. Go to the Magistrate’s Court and complete a Protection Order Application form.
- You may ask the Clerk of the Court for assistance;
- Take with you all supporting documents (including Affidavits of others, photos, text messages, etc.);

2. The Presiding Officer will consider your application as soon as reasonably possible.

3. If the Presiding Officer agrees that you are in danger of further harm, the Presiding Officer will issue you with an interim Protection Order.
- The Presiding Officer can issue an interim Protection Order without listening to the harasser’s side of the story;
- An Interim Protection Order is a temporary court order;
- This temporary court order will specify a future date – the return date – upon which both parties (victim and harasser) are to appear in court to each present their case.

4. A member of the SAPS or the Sheriff of the Court will serve the interim order on the harasser.

5. On the return date: the Presiding Officer will listen to both sides of the story.
- If found on a balance of probabilities that the harasser did indeed commit an act of harassment and that harm will be suffered if a final Protection Order is denied, a final Protection Order will be issued;
- If not, the interim Protection Order will fall away/ become invalid;
- The Presiding Officer may even issue a final Protection Order in the harasser’s absence should the harasser be a no-show.

WHAT IS THE POINT OF AN INTERIM AND FINAL PROTECTION ORDER? 
- An interim and final Protection Order both come with a suspended warrant of arrest;
- An interim and final protection order both specify certain rules for the harasser to follow (do not make contact/ do not come within a certain distance of the victim/ etc.);
- Should the harasser overstep any of the rules stipulated in the interim or final order, the victim can go to the Police Station and ask for the harasser’s arrest!

Eviction

Question received:

“Good Day. About a year or so ago I rented a house from an agent when I moved the
agent said he'll just transfer my deposit to the other house that I
was about the rent from him. So I moved into the house the rent was
R4000 I paid him R5000 plus he had my deposit of R3800.
I moved in End of January which ment my contract would end the next
year end of January. In October that year I was in arrears for one
month which I paid in November and beginning of December, I told the
agent I am going to move end of January an he said no I must move end
of Feb. One day in Jan I went to my moms house when I got back at night there
was a big chain around the gate, they said I owed them R4000.00 I than
argued but end up paying it my furnitures was still in the house when
I went back to get my furniture the agent said it is safe. the next
day the agent called me and said the owners of the house sold all my
furniture which I still owed. I did go to court but never carried out the situation and now I am
ready and want to know what I should or can do or if its to late to do
anything now since its about a year ago”

Reply:

The good news is that it is not too late to take action and hold the lessor (person who rented the house to you) accountable for withholding your deposit, claiming additional rent from you and for selling your furniture without a court order!

According to the Prescription Act, your specific monetary claims and interest against the lessor only prescribe (expire/ become invalid should the lessor defend the case by pleading the defence of prescription) after THREE years.

We suggest that you contact the Rental Housing Tribunal in your area. The Rental Housing Tribunal is a free service and is in a position to arbitrate the dispute and make a binding order against the lessor. According to section 13 of the Rental Tribunal Act, 'a ruling by the Tribunal is deemed to be an order of the Magistrate's Court.' You furthermore do not need legal assistance or representation during the hearing at the Rental Housing Tribunal.

However, it is you who would have to prove your claim against the lessor by way of receipts/ bank statements, any correspondence between yourself and the lessor (lease agreement, emails, text messages, letters), affidavits, etc.

Assuming that you rented the house in the Western Cape, the following two forms should be completed and submitted to the Rental Housing Tribunal:

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fa-failure-to-refund-deposit.pdf

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fk-unlawful-seizure-of-possessions.pdf

Please note that as of April 2011, in terms of Consumer Protection Act, a lessor is obliged to place a deposit in an interest-bearing account. This means that once the lease period ends, the lessor is to pay over the deposit PLUS interest that accumulated during the lease period (minus the cost of damages you caused to the property/ any arrear monies).

Should you not be situated in the Western Cape, simply Google search 'Rental Housing Tribunal South Africa' in order to locate the tribunal closest to you and its applicable complaint forms.
It was furthermore unlawful of the lessor to chain your gate. In terms of section 26 (3) of the Constitution of the Republic of South Africa, 1996, a lessor is not allowed to evict/ lock you out without first obtaining 'n court order.

For a lawful eviction, a lessor has to apply to court in terms of section 4 of the Prevention of Illegal Eviction Act (PIE). Before you can evict someone in terms of PIE, that person needs to be an unlawful occupier. This means that the person residing on the property is doing so unlawfully (without consent/ a lease agreement/ the lease period has come to an end). This is a lengthy and costly experience:

Step 1: The owner sends the occupant a written notice asking him/her to vacate the premises within a reasonable time (a minimum of 30 days);

Step 2: Should the occupants not vacate the premises within that time period, step two would be to notify the occupant in writing that the owner intends to apply for an eviction order. This notice must be served 14 days prior to the court date;

Step 3: Once in court, section 4(6) and (7) of PIE set out the factors taken into account by the presiding officer before deciding whether or not to grant the eviction order:

             “(6)       If an unlawful occupier has occupied the land in question for less than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of the elderly, children, disabled persons and households headed by women.

             (7)              If an unlawful occupier has occupied the land in question for more than six months at the time when the proceedings are initiated, a court may grant an order for eviction if it is of the opinion that it is just and equitable to do so, after considering all the relevant circumstances, including, except where the land is sold in a sale of execution pursuant to a mortgage, whether land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier, and including the rights and needs of the elderly, children, disabled persons and households headed by women.”

For future reference, please note that the Rental Housing Tribunal can furthermore provide IMMEDIATE assistance should a landlord change the building's locks without giving you the new keys:

http://www.westerncape.gov.za/assets/departments/human-settlements/docs/rental-tribunal/hs-rentalhousingtribunal-fh-unlawful-eviction-or-unlawful-lockout.pdf

As for selling your furniture, please note that the lessor does have something called a landlord’s hypothec in his/her favour meaning that your furniture and other movable property may be sold to cover your arrear rent.  However, this hypothec may not be enforced without first giving you written notice of the arrear rent and allowing time for repayment before applying to court to enforce this right. Next the sheriff will get involved and only auction the movable property to the value of the arrear rent after advertising same.

We hope this helps and we wish you a fantastic 2015.

Legal Hero

Enforcement or cancellation of a contract

Question received

“Can I claim back my money? I ordered hay for my horses in November 2013 after seeing an advertisement on the internet. The man was very polite over the phone and convinced me to pay the full R3 000 in advance. He explained that the hay was fresh and the only reason for selling was to clear his storeroom. When the man came to deliver the hay I realised that the hay was OLD, MOULDY AND STALE - I have photos to prove it - and refused to accept the goods. He left with the bad hay and promised to be back at a later stage with better quality. I am still waiting!! He no longer answers my calls but I’ve managed to get his address. Should I approach him?”

Reply:

You and this man (let’s call him Mr X) entered into a verbal contract over the phone the moment the two of you agreed that the hay would be delivered in exchange for R3 000 – to be paid up front.

It is an underlying requirement that the parties to a contract act in good faith and fair dealing. As you have possibly learned, this is sadly not always the case.

The truth is that Mr X has been in breach of contract for more than a year. The type of breach here is called positive malperformance.

-          Positive malperformance happens where the supplier delivers the ordered goods on time but where the quality of the goods is improper/ incomplete/ defective;

-          The receiving party subsequently has a right to reject the improper/ incomplete or defective goods;

-          What generally happens next is that the receiving (innocent) party would demand:

a)      That the supplier replace defective goods with proper/ complete goods in an acceptable order;  OR

b)      A cancellation if the defect/ breach is material/ very serious. 

Seeing as stale/ mouldy hay can cause your horses infection and/ or hay induced-colic, the defect appears to be material in this instance! 

Van der Merwe et al (Contract, General Principles 1 ed 1993, at 255) describes a very serious breach as follows (also quoted in the case of Singh v McCarthy Motors):

“The test for seriousness has been expressed in a variety of ways, for example that the breach must go to the root of the contract, must affect a vital part or term of the contract, or must relate to a material or essential  term of the contract, or  that there must have been a substantial failure to perform.   It has been said that the question whether a breach would justify cancellation is a matter of judicial discretion.   In more general terms the test can be expressed as whether the breach is so serious that it would not be reasonable to expect that the creditor should retain the defective performance and be satisfied with damages to supplement the malperformance.”

Can you claim back your money?

Firstly, well done on tracking down Mr X’s address! This is invaluable, not necessarily for approaching Mr X (in fact, we advise against it) but for delivering the relevant legal documents to demand fresh hay or cancellation (repayment of your R3 000).

The good news is that you are able to pursue the matter via the Small Claims Court as your claim is less than R15 000. The aforementioned court is free of charge and does not allow for legal representation. Proceedings are informal and you will be able to rely on text messages and informal means of communication.

The first step is to put your claim in writing by sending Mr X a Small Claims Court section 29 letter of demand in terms of which you request fresh hay as agreed upon within 14 days, failing which you will cancel the contract and demand repayment. If you are a Legal Hero policyholder, please contact us and open a new file for assistance as soon as possible. 

It is very important to note that a civil claim prescribes (becomes invalid) after 3 years since last date of payment/ acknowledgement of the debt provided no legal action has been instituted during that time. This means that your civil claim against Mr X will prescribe in November 2016.  After November 2016, Mr X will be able to raise the special defence of prescription in court.

Lastly, based on the information provided to us, it appears that this sale was a once-off. Should Mr X, however, sell hay on a regular basis during the ordinary course of business, Mr X would be bound by the rules of the Consumer Protection Act (as a supplier). In terms of the Consumer Protection Act, a consumer may request repayment, a repair or replacement of defective goods. One could also lodge a consumer complaint via complaints@thencc.org.za.

Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za