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It makes very good sense to repeat the often expressed advice that every individual, to use a colloquialism, should ensure that his/her affairs are in order and that they have a valid and well thought out and considered Last Will and Testament in place.
It is generally money well spent to employ the services of a professional person to assist you in the preparation and execution of a Last Will and Testament. This will hopefully ensure that, firstly, the document is valid on your death, that secondly, it has fully taken cognisance of your and your family and dependants? circumstances and thirdly, considered the numerous legal factors that have a bearing on matters of estate planning and drafting of Wills.
However, if it transpires that an individual dies without having heeded this adage, and his Will is invalid or he has not adequately provided for his surviving spouse, a specialist may assist to cure these defects.
Although these remedies are limited and there are certain requirements that must be met for them to be successful, in certain cases it can resolve what seems to be an insurmountable problem and prevent a situation that might otherwise have been very unfair and harsh.
This can be illustrated by reference to two examples:
It may happen that after the death of a deceased, the family and dependants discover that the Last Will and Testament of the deceased is invalid. Prior to the amendments of the Wills Act in 01 October 1992, this would have been the end of the matter. But the Wills Act envisages a procedure whereby parties, who would otherwise have benefited from this document but for its invalidity, can approach a High Court for an order directing the Master of the High Court to accept the Will for purposes of the estate administration.
There are two requirements that must be met for such an application or action to be successful. The most important is that the document must have been drafted or executed by the deceased. Secondly, that the deceased must have intended this document to be his Last Will and Testament.
Although there can be numerous reasons for a Will to be invalid and many circumstances that lead to the invalidity, there are generally two general reasons:
The first is, where an individual - usually as a result of lack of knowledge - drafts and executes a Will, but has not fully complied with the formalities as set down in the Wills Act. For instance, the Will may not have been signed by the Testator, or the Will may only be witnessed by one witness, as opposed to two witnesses. The second is where the testator dies prior to completing the final act in respect of the execution of the Will. In other words, somewhere between setting the wheels in motion to have his Will drafted and actually executing the same by, as it were, signing on the dotted line, he dies.
With the assistance of a specialist, the merits of a potential case can be assessed to determine the chances of success based on the case law that has evolved in respect of this Section of the Act to date.
A second instance where a professional may assist to ?cure? a defect, is where the deceased has, either deliberately or inadvertently, inadequately provided for his or her surviving spouse. Prior to the introduction of the Maintenance of Surviving Spouse Act on 01 July 1990, a surviving spouse would have had no recourse if, as a result of being disinherited or being provided for inadequately in the Last Will and Testament, she found herself without resources to provide for her own maintenance needs.
Without in any manner disturbing the freedom of a testator to determine who his or her beneficiaries are, or to what degree they are to inherit, the introduction of this provision ensures that, if a deceased should disinherit a surviving spouse or limit her inheritance to an amount which leaves her in need of maintenance, the surviving spouse can lodge a claim against the estate.
The Act stipulates the factors that must be considered in determining whether such a claim can be successful in general, and if so, what amount could successfully be claimed. The factors to which one would have reference are:
1. the amount in the estate of the deceased spouse available for distribution to heirs and legatees;
2. the existing and expected means, earning capacity, financial needs and obligations of the
3. the standard of living of the survivor during the subsistence of the marriage and his age at the death of the deceased spouse.
During the estate administration process, a specialist can also add value to protect the interests of creditors and beneficiaries, in the event that the Executor should be tardy, unfair or incompetent. The same holds in the event of the administration of a Testamentary Trust, to ensure that the various beneficiaries are treated in accordance with the provisions of the Deed, and that the administration is fair, competent and equitable.
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