Category Archive: Will

ConCourt to rule on ‘absolute right’ of inheritance

Constitutional Court Freedom of Testation

Freedom of testation – this article from Times Live raises an interesting debate surrounding the primacy of a will versus the constitutional right to equality. We await the Constitutional Court’s ruling…

Private wills – as opposed to charitable trusts – are considered sacrosanct, not only in South Africa but the world over.

As long as a person is of “sound mind” and not financially responsible for any minor children, they are legally entitled to pass on their assets to whoever they please and can disinherit on a whim.

But in a constitutional dispensation this is not an “absolute right” and must be balanced against equality, it has been argued in two matters that will now come before the Constitutional Court in February.

New Frame reports that one involves the inheritance rights of adult adoptees. In the other, five sisters have challenged a “males only” clause in their great-grandfather’s will.

Both challenges started in the Cape Town high court, but were unsuccessful. Then the Supreme Court of Appeal (SCA) failed to come to their aid. But the ConCourt has consolidated the two cases and directed the parties to submit arguments on why it should grant leave to appeal as well as the merits of both matters.

Dulcie’s adopted children

David Wilkinson and his sister Amanda Truter are from Port Elizabeth. Dulcie Harper, who was unable to have children, adopted them as newborns in the 1950s.

In 1953, before Harper adopted the babies, her father Louis John Druiff died. In a trust deed and will, Druiff left his estate in equal share to his four children and, on their deaths, their children.

Harper died in December 2017. She was the last of Druiff’s four children to die. Her death sparked a legal battle between Wilkinson and Truter and their cousins about who was entitled to inherit Harper’s share of her father’s estate.

The cousins, the natural children of Harper’s siblings, claimed that Wilkinson and Truter, as adopted children, were not entitled to the inheritance because Druiff only intended “blood descendents” to inherit.

Wilkinson and Truter argued that this interpretation was incorrect, resulted in unfair discrimination and was not in line with the “spirit, purpose and object of the bill of rights and the constitution”.

The appeal court judges were divided. Judge Mahube Betty Molemela said in a minority judgment that Druiff had used the term “any child”. There was no reason why this should lead to the conclusion that he intended to disinherit children adopted after his death. She noted that Druiff was aware, before his death, that Harper was considering adoption.

But the majority judgment, penned by judge Visvanathan Ponnan, highlighted the constitution’s protection of a person’s right to property, including the right to dispose of their assets as they wish upon their death.

“The fundamental question is the extent to which freedom of testation must yield to freedom from unfair discrimination,” the judges said. “Inroads into freedom of testation are not to be made lightly. No one has a right to inherit. The terms of the trust deed were certain and valid and not contrary to public policy at the time.”

The adopted siblings’ lawyers said the case raises “important constitutional issues”.

“The net result is that adopted children are being discriminated against solely on the basis of their birth and status, which is a contravention of the constitution … There is no authoritative pronouncement on the issue. None of the authorities deal with private trust in the present constitutional dispensation,” they said.

They argued that the appeal court failed to take into account “radical developments of law” concerning adopted children and that “public policy” is not a static concept.

“Any finding which results in adoptive children not being on equal footing would today fall foul of public policy and the equality clause in the constitution.”

No male heirs

In the second matter, sisters Trudene Forword, Annelie Jordaan, Elna Slabber, Kalene Roux and Surina Serfontein claimed unfair discrimination after being disinherited because the will their great-grandparents drafted in 1902 specified that only “male heirs” could inherit their farms and other properties.

Their father Kalvyn de Jager died in 2015 having had only daughters. Their male cousins then laid claim to the properties, admitting that it may be “unfair discrimination” but that it is justified and “freedom of testation should take precedence”.

In written arguments, lawyers for the sisters said a will that is inimical to constitutional values, that is contrary to public policy, is not enforceable.

“While the law of succession offers a testator very wide freedom, this is limited by common law, statute and the constitution,” they argued.

“For example, if a property owner were to conclude a contract with an estate agent which permits the agent to only market and sell the property to persons of a particular race or gender, it stands to reason that such contract would be unenforceable on the basis of breach of public policy.

But lawyers for the cousins say neither the interim constitution nor the final constitution reaches backwards to invalidate actions taken before they commenced.

“It is significant that at the SCA, the counsel [for the sisters] had to concede that they are contending for a ‘world first’ in the sense that no foreign jurisdiction has outlawed discrimination in the form of out-and-out disinheritance in a private will.”

They also argued that this was not the case to decide a constitutional issue. “Over the past 117 years, the family has arranged their affairs in accordance with the will,” they said. “Some of the properties have been sold – it will be difficult to unscramble these transactions.”

They said their clients were not able to justify the discrimination because of the passage of time and that it was impossible to establish what benefits were distributed to females in lieu of property in the past.

“There is also the spectre of a Pandora’s box of litigation regarding private wills, in which the testators’ last wishes are second-guessed by a court, which might have little inkling as to why,” they said.

This article was first published by New Frame and appeared on Times Live 2020-01-16

Let us help with your will and estate planning

Don’t let your will tear your family apart after you are gone. We are experts in Constitutional law and will ensure that nothing in your will contravenes the basic rights accorded to us in our Constitution. We’ll make sure your assets are distributed according to your wishes and in full accordance with the right to equality. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

Further reading:

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Appointment of a curator

A practical guide to selecting and appointing a Curator Bonis

Appointing a Curator Bonis. Cape Town Lawyer

The ability to make decisions can be impaired because of diminished mental capacity, resulting from a variety of things, requiring the appointment of a curator. Sometimes the impairment is permanent, such as intellectual disability, brain injury or disease, dementia (Alzheimer’s) or incapacity related to ageing. In other cases the damage can be temporary, such as from serious illness, a stroke where the person recovers function, or mental illness. Mental disability and ageing are the most frequent causes of an inability to make effective decisions. Impairment can come on suddenly, for example following an accident or stroke (in the immediate aftermath), or it can be gradual and often dismissed, as in the case of encroaching dementia. Sometimes it takes a significant event for family members to fully accept that their loved one is slowly losing their grip on reality.

The general rule is that majors (those age 18 and above) are presumed mentally and legally competent to manage their own affairs until it is proved to the contrary. But if you have elderly parents, or if you suffer from a degenerative illness that may affect your decision making in future, you may want to think about how you will administer your parents’ affairs…or who will administer yours…should it become necessary.

Appointing a Curator Bonis

There are two ways in which you can appoint someone, called a Curator Bonis, to administer the estate of an individual who is incapable of managing their affairs. We’ll look at each procedure in turn.

1. Common law procedure – application to the High Court

The High Court may declare a person incapable of managing their own affairs, and may appoint a Curator to manage their affairs and/or property. The procedure for this is set out in Rule 57 of the Uniform Rules of the High Court.

Anyone who wants to apply to the court for such an order must first apply for the appointment of a Curator Ad Litem. This application is by way of notice of motion and must contain:

  • Full particulars of the locus standi (the right to make the application) of the applicant
  • Jurisdiction of the court
  • The age and sex of the person considered incapable, full particulars of their means, and information as to their general state of physical health
  • The relationship between this person and the applicant, and the duration and intimacy of their association (if any)
  • The facts and circumstances provided as evidence that the person is of unsound mind and incapable of managing their affairs
  • The name, occupation and address of the respective persons suggested for appointment by the court as Curator Ad Litem, and subsequently as Curator Bonis of the person’s affairs or property, and a statement that these people have been approached and have indicated that, if appointed, they would be able and willing to act in these respective capacities

The application should be supported by:

  • An affidavit by someone who knows the person well, containing facts and information about the person’s medical condition. The affidavit must also set out the relationship between the deponent (the referee) and the person, and the deponent’s interest in the matter
  • Two recent medical reports by medical practitioners, one of whom should (where practicable) be a psychiatrist, who have conducted recent examinations of the person to determine their medical condition. The reports must contain the facts about the condition and opinions about the nature, extent and likely duration of any mental disorder or defect observed. They must comment on the person’s inability to manage their affairs. The medical practitioners should not be related to the person or have any interest in the matter

The court will then appoint a Curator Ad Litem (usually an advocate of that court) to investigate the matter fully and report to the court and the Master [Rule 57(4) & (5)]. The Curator Ad Litem will interview the person and make any further enquiries necessary. They will then prepare and file a report with the Registrar of the court.

The Master also compiles a report after receiving the Curator Ad Litem’s report, making recommendations to the court regarding the merits of the application, the suitability of the nominated curator, their powers and security [Rule 57(7)]. Upon consideration of the application, the reports from the Curator Ad Litem and the Master, and any other relevant information, the court will issue the order if necessary [Rule 57(10)].

When the High Court appoints a curator to administer someone’s estate, they may not act on that appointment until formally authorised by the Master of the High Court. Section 71 of the Administration of Estates Act 66 of 1965 provides that no one who has been nominated, appointed or assumed as curator may administer any property belonging to the person under care until authorisation is received via letters of curatorship.

2. The procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002

In terms of the Mental Health Care Act, the Master of the High Court may, after considering and processing the required application, appoint an administrator to manage the property of a person who has been diagnosed as mentally ill or a person with severe or profound intellectual disability.

While the common law application is appropriate for any situation where the person is incapable of managing their own affairs, this application is only relevant in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner duly authorised to make such a diagnosis.

Because no High Court application is required for the appointment of an administrator, the procedure is far less costly than the common law appointment of a Curator Bonis. The application can be lodged directly with the Master of the High Court in the relevant jurisdiction (where the person needing the administrator resides). The applicant does not need to use an attorney, although a good family lawyer’s assistance in lodging the application with the Master can make the task much easier.

The application procedure for the appointment of a curator in terms of the Mental Health Care Act is set out in section 60 of the Act and provides as follows:

  • Any person over the age of 18 may apply to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.
  • The application must be made in writing, under oath or solemn affirmation and must:
    1. Set out the relationship of the applicant to that person
    2. State the reason why the spouse or next of kin did not make the application, if the applicant is not a spouse or next of kin of that person
    3. Describe the steps taken to establish the whereabouts of the next of kin before making the application, if they are not available to make the application
    4. Include all available mental health-related medical certificates or reports relevant to the mental health status of that person and to their incapacity to manage their property
    5. Set out the grounds on which the applicant believes the person is incapable of managing their property
    6. State that, within seven days immediately before submitting the application, the applicant had seen the person
    7. State the particulars of the person and their estimated property value and annual income
    8. Give the particulars and contact details of anyone who may provide further information relating to the mental status of the person
  • The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Powers of a curator

The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, including the following:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

These powers are usually subject to the prior consent and approval of the Master.

Contact a specialist family lawyer

While an attorney may not be explicitly required under the second procedure above, in both cases a family lawyer experienced in estate planning and management will make a complex and difficult situation easier to understand and manage. There are multiple steps in the process of appointing a curator, and it is important to ensure nothing is left out. There may be other considerations, too, such as a will and life insurance provisions. Don’t put the financial wellbeing of your loved one at risk. Contact family lawyer Cape Town for a consultation. Speak to Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment.

 

Use our handy checklist to make sure you have everything you need.

Read our blog post on the different types of curatorships and administrators.

 

 

 

 

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Will you secure your family’s future?

Will and family law

I’m young – why should I make a will?

Wills deal with the distribution of assets after death, so most people think of them as an end-of-life issue. Why would someone in the prime of life want to think about what happens after their death?

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