Jessica Schwenn

Void and Voidable marriages.

An engagement is the only valid basis for a marriage. It is two party’s willingness to enter marriage.

What are some of the circumstances where the marriage can be considered void?

These are known as material mistakes:

  1. The mistaken identity of a person – this usually does not happen as one sees their soon to be spouse at the wedding, but this can happen in the case of twins or doppelgangers.
  2. A mistake as to the act itself: this may be where the person does not know the ceremony is meant to be that of a marriage.

Mistakes pertaining to personal characteristics do not result in a lack of consensus e.g., finances, relatives, names, or religion.

What may make a marriage voidable (meaning that it is legal but could be annulled)

This is usually misrepresentation – where one party is deceived by another party. The deceived party must prove that he/she would not have entered the marriage had they have been aware of certain things.

However, what is considered as misrepresentation?

  1. Intentional concealment of sterility or stuprum: Being sterile is where one party cannot have children. This must be present at the time when the marriage was concluded, the parties must have considered sexual intercourse after marriage, it must be incurable, and the applicant must not have been aware of it at the time of the marriage. Stuprum is where the woman is pregnant with another mans child. The husband must be unaware of the pregnancy at the wedding, and he must not have condoned the action;
  2. The existence of an illegitimate child;
  3. Sexual promiscuity;
  4. Homosexual behaviour; and
  5. Serious disease.
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Jessica Schwenn

Commonly asked questions from our clients during the will drafting process:

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Q: Why should we give you the Identity Numbers or dates of birth of our heirs?

A: It can be hard to understand when it is your will and your family members why we would need their personal details but the most common reason for such is the time between when one drafts their will and when they pass away a lot can happen. Your family members could have moved or died themselves and most likely have become untraceable – when this happens the only way to trace them is through their ID numbers or date of birth. Its also important to note that the Master’s office doesn’t know you or your family and deal with millions of people with similar or exact names and need proper clear identification. Clarity and intention are the number one thing looked at by the courts and the Master’s office when a testator drafts a will and when they look at validity.

 

Q: what is the difference between the terms Testator and Testatrix?

A: The term Testator is the male name for someone who drafts a will, and a Testatrix is the female version. This is the same with the terms Executor and Executrix.

 

Q: Why is it important to date my will when it’s not legally required?

A: Although not legally required, its important to note that when there are more than one wills found at the time of one’s death, the only way to truly tell which will supersedes the other to see which one is most recent is by looking at the date. Again, Intention is very important in a will and your wishes may not be the same in every will that you draft throughout your life.

 

Q:  Can the witnesses who witness my will also be inheriting according to my will?

A: No, we tell clients to make sure the witnesses are independent people. This negates any arguments as to fraudulent activity.

 

Q: Can my Executor also be an heir?

A: Yes, this usually happens in cases where spouses make each other executors should the one of them pass away first then the surviving spouse becomes the Executor as well as the heir.

 

Q: Is it important to have separate wills if I have assets in another country?

A: Yes, it is important to separate your wills according to the countries you have those assets in. when you pass away the masters office where you reside will have jurisdiction over your estate and will request the original will, so if you have to request you estate to be wound up in a different country and they would need the original will you wouldn’t be able to receive that back from the master and its unlikely that the other country would only accept a certified copy.

 

Q: Why can’t spouses have joint wills?

A: It is legal for spouses to do joint wills, but they are extremely problematic. As mentioned above when one dies their original will gets sent to the Master’s office to start the winding up of the estate. Now when the joint will is sent because one of the spouses has passed away and that estate is eventually wound, the masters offices will put the file of the deceased spouse into storage. Now when the second spouse passes, and the master needs the original will it’s impossible to get that will back from storage and often times gets lost. We advise our clients who are couples to draft separate wills even if they state the exact same thing.

Q: Why do you want my address on the will?

A: Your address of where you resided at the date of your death indicates your residence or domicile and tells us and the masters offices which master will have the jurisdiction over your estate and where your papers should be lodged.

 

Q: I don’t want my partner to know that I am a will. Why must I disclose my marital regime?

A: Your marital regime will indicate how your estate will be wound up especially if your will for any reason is named invalid and takes on the route of Intestate Succession. The Master’s office often times will not even work on a file until they know how one is married and estates are most often queried based on requested documents. Therefore, even if you do not want your partner to know that you are drafting a will its important that we have that information.

 

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Jessica Schwenn

THE MASTERS OFFICE AND OUR ESTATES DEPARTMENT

Dear clients,
As a firm we are understanding of your worries during this time regarding the masters offices and the estates matters held.
Please note that we have a candidate attorney that goes to the masters offices almost everyday and as you can see from the lines below it is on most days almost impossible to get in.
Once she gets in most of the staff are still working on a rotational system and are not in and when we try and consult with estate controllers we are advised that we are unable to due to the COVID 19 pandemic. We are then told whom to email and when we email they either do not answer or read the emails or we are told that that person isn’t dealing with it and we must find someone else.
We up until recently were not even allowed to get documents stamped as proof of lodgment so how can we even prove to clients we were following up on matters!
Please see the below picture where there is further investigations into the masters offices being held this was in a recent paper, as well as an email we have received to say they aren’t going to deal with attorneys matters because they are too busy ( I have blocked out the relevant parties name and email address).
Please note that we are trying alternatives everyday and will continue to push the system until we have the matters sorted out. Don’t give up faith with us and watch this space.
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Jessica Schwenn

What makes a will valid according to the law of succession?

A will is meant to be a voluntary and unilateral document which expresses the wishes of the Testator.

The will usually contains three things:

  1. The bequeathed assets;
  2. The extent of interest bequeathed in the assets; and
  3. The identity of the beneficiaries who would inherit such assets.

No will is valid however, unless it contains the following:

  • The will MUST be signed by the Testator or by a person in the Testator’s presence and by his direction;
  • If there is more than one page of the will, each page must be signed at the end by the Testator;
  • The signature must be done in the presence of two or more competent witnesses present at the same time of each other and the Testator;
  • If the Testator cannot sign the will and can only leave a mark it must be in the presence of a commissioner of oaths who certifies that he is satisfied to the identity of the Testator and that the will is that of the Testators and the commissioner must sign each page.
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Jessica Schwenn

The Summons

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Many people do not know what a summons is and if they do they do now know the full extent of details for which it should hold.

 

There are two main types of Summons namely:

  1. A Combined Summons: this is mainly used where one is not suing on a liquidated demand or debt; and
  2. A Simple Summons: this is used when one is suing another based on a liquidated debt.

It is important to note that certain things MUST be on the summons for same to be valid, same would include:

  • Where the Plaintiff is represented by an attorney the attorneys address and contact details must be listed on the summons (this is the same if the Plaintiff is representing him/herself).
  • The Plaintiff and/ or his representative must be within 15km of the court out of which they are suing out of.
  • The Summons must be signed by the Plaintiff/ his attorney as well as the clerk of the court who will allocate a stamp that must bear the address and name of the court and the date which the case number was allocated to the summons.
  • The Summons must include a Notice of Intention to Defend and a Consent to Judgment (unless it is a divorce than a consent to judgment is not needed).
  • The Jurisdiction of the court must be mentioned and explained in the summons as to why the court has the rights to hear this matter.
  • There must be a proper statement of facts and a proper relief sought within the summons including the prayer of interest.

Contact us today to assist you in reclaiming money back or issuing a summons on 0310030630 or email us on Jessica@schwenninc.co.za

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Jessica Schwenn

Alert level 3 regulations as amended in January 2021.

Many of us are so confused as to what our rights under these various alert levels are especially when they keep changing. This blog is a list of the regulations as newly amended in January 2021.

 

  • Curfew has been changed to the hours of 21:00pm – 05:00am. This curfew however does not apply where there is a security or medical emergency or where one is working as an essential worker;
  • Failure to abide by any of the regulations will result in a fine or imprisonment not exceeding six months;
  • All establishments whether they are indoor or outdoor must close at 20:00 hours;
  • Face masks covering the nose and mouth must be worn in a public place with exception of a child under the age of 6 years old;
  • Employees must at all times perform their duties wearing a mask;
  • Employers must according to the space in square metres, determine the number of customers and employees in the building and ensure proper social distancing and hygiene conditions are adhered to;
  • All banks must ensure that ATM’s have hand sanitizers available and that social distancing is being adhered to;
  • Funerals are limited to 50 people with a distance of one and a half metres required. No night vigils or after funeral gatherings are allowed and the duration of funerals are a maximum of two hours during which face masks must be worn at all times;
  • All social, faith based, political and traditional council meetings are prohibited;
  • Gatherings at cinemas, casinos, museums and libraries are limited to 50 persons at a time;
  • Gatherings at sports grounds, beaches, lakes, dams, rivers or any recreational facilities are prohibited but game parks, aquariums, botanical gardens and zoos are open between the hours of 9:00am and 18:00pm;
  • Gyms are open for 50 people at a time;
  • Evictions and demolitions can only take place by way of a court order and a court can decide to suspend or stay an order depending on various guidelines;
  • Visits to correctional centres are prohibited;
  • All ports and entry into South Africa are closed (with the exception of certain goods);
  • International travel is restricted;
  • Public transport can only hold 70% of its licensed capacity for long distance travel (200km);
  • The distribution, transportation, tasting or consumption of liquor is all prohibited.

 

For more information on any of the regulations please do not hesitate to contact us at Schwenn Incorporated Attorneys on 031 003 0630 or email us on Jessica@schwenninc.co.za.

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Jessica Schwenn

Quick steps for the Executor to follow in an estate

  • The Deceased’s Estate must be reported in the jurisdiction where he/she lived at the time of death;
  • The Executors duties arise as soon as the Master of the High Court issues them with a Letter of Executorship and will only terminate should he/she dies or where the Master or the Court relieves them;
  • The Executor must meet with the family of the deceased and get certain documentation such as the Death Certificate, a list of assets and liabilities and a Marriage Certificate or Antenuptial Contract if the deceased was married in community of property;
  • A notice must go out to the creditors to inform them of the deceased’s death and allow them the chance to institute claims against the estate. This notice is published in the Government Gazette and the local newspaper where the deceased lived at the time of death;
  • All bank accounts that are open at the time of death are closed and the funds are transferred into a separate bank account called an estate late bank account;
  • Thereafter a Liquidation and Distribution account needs to be drafted to discover who gets paid, who gets what assets and which liabilities are outstanding. This needs to be advertised and once approved by the master creditors needs to be paid and assets distributed. This has to be done six months after the date of appointment;
  • Proof of distribution needs to be lodged with the master after which the master will issue you with a filing notice from which you will be relieved from your duties.
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