PEARLS OF WISDOM

We’d like to offer you the best advice possible and here are a few vital pieces of information you may find useful

Why an experienced attorney should draft your Will

Death happens to others and my turn is a long way off.

Most people dislike thinking about what happens when they die, although it is a serious matter. Putting off drafting your Will and forgetting about it altogether can have disastrous consequences. Doing a Will yourself or completing a standard form on the internet is equally risky. Most people fail to appreciate that the drafting of a Will and the putting into place of a succession structure and a tax planning strategy is a highly specialised area of law.

None of us take our car to the hairdresser for a service, nor do we expect our GP to perform heart surgery on us.

As early as 1952 the courts were already voicing their despair at having to unravel badly drafted Wills. In Ex Parte Kock, the court had the following to say:
” There is hardly a material clause in this Will that is clear and unambiguous, either standing alone or when read with other clauses…. with the result that the Will was left in such a confused state that it is hard to tell what the testator’s true intentions were..... It is highly irresponsible and immoral conduct on the part of anyone to hold himself out as competent to draft a Will..…I urge intending testators to consult only persons who are suitably trained in the drafting and execution of Wills…”

The court also made mention that lack of compliance with formalities results in the Master’s Office rejecting Wills, leaving families destitute and having to resort to High Court litigation, which is financially costly, emotionally draining and time consuming.

As recently as 2012, the courts have again pronounced their dismay when faced with having to interpret a Will which was drafted by a non-specialist. In the case of Raubenheimer v. Raubenheimer 2012 (5) SA 290 at 292 the court had the following to say :
“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign. Some 60 years ago, in Ex Parte Kock NO, a high court decried the number of instances in which wills had to be rejected as invalid due to a lack of compliance with prescribed formalities and the regularity with which the courts were being approached to construe badly drafted wills, before urging intending testators ‘in their own interests as well as in the interests of those whom they intend to benefit when they die . . . to consult only persons who are suitably trained in the drafting and execution of wills and other deeds containing testamentary dispositions’. Despite this, the courts continue all too often to be called on to deal with disputed wills which are the product of shoddy drafting or incompetent advice. This is another such case.”

Do not run the risk of leaving your family, your dependants and your loved ones with uncertain futures, having to fight amongst themselves and having to take legal action because of your failure to prepare your affairs timeously, properly, clearly and in accordance with the law.

Do approach a specialist attorney to assist you with your estate planning and the drafting of your Will. This investment now will be a saving for your estate and your heirs in the long run.

Buying and Selling Immovable Property

Property transfers are attended to and registered in the Deeds Registry by conveyancers, who are attorneys who have studied, written and passed a specialised conveyancing examination.

In all property transactions, the conveyancer, by law, acts on behalf of the seller, and as such, represents the interests of the seller. The seller chooses the conveyancer, not the purchaser nor the estate agent. The purchaser, however, pays the conveyancing costs.

Our conveyancing system is such that only one conveyancer is necessary, unlike in England where both the seller and the purchaser each have their own conveyancer.

Things can, and often, go wrong where the purchaser insists on having his own conveyancer attend to the transaction, usually because the purchaser is able to get a discount on the fees, and the seller unwittingly agrees to this. In this instance, the purchaser has appointed the conveyancer, but the conveyancer acts on behalf of the seller. This results in a complete conflict of interests.

If you are selling immovable property, please be aware that you have the right to choose the conveyancer. The conveyancer acts on your behalf and in your interests.

WHEN BUYING PROPERTY AND BEFORE YOU SIGN AND SUBMIT YOUR OFFER TO PURCHASE, you would do well to have your attorney or conveyancer peruse and check the Offer. Once your Offer is accepted by the seller, that Offer becomes the Deed of Sale and that is the final document, which cannot thereafter to changed or varied without the agreement of the seller. The cost of a consultation far outweighs the possible problems that can occur down the line.

Likewise, WHEN SELLING YOUR PROPERTY AND BEFORE YOU ACCEPT AN OFFER, get your attorney or conveyancer to check the Offer and explain the details, ramifications and consequences to you. Once you have signed acceptance, that Offer becomes the Deed of Sale.

As a purchaser, do not be pressurised by property agents and brokers to sign and submit an Offer urgently. Likewise, as a seller do not be pressurised into having to accept an Offer in a matter of hours. Insist on sufficient time that would enable you to think about it and be given a reasonable amount of time to consult with your attorney or conveyancer.
For most people, the buying and / selling of immovable property constitutes the single most important and financially largest transaction they enter into in their lifetimes.