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 masters 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 is the number one thing looked at by the courts and the masters 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 its 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 ones 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 someone who is 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 cant 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 masters 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 its 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 masters 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.

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.

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