While there is no fixed time period, it is important to revisit the contents of your will whenever your personal or financial circumstances change.
Developments in the law, which may affect the overall scheme and structure of your will, may also require that you consider changing your will.
Any number of contingent changes might occur during your lifetime. We highlight here some of the more common events.
Personal circumstances
Marriage: getting married, or remarrying. Do bear in mind that your marital status does not automatically result in your spouse becoming a beneficiary of your estate. A remarriage generally requires a thorough reworking of your will in order to balance potential competing expectations and needs.
Divorce: In law, for a period of three months after the death of the testator of a will, any former spouse will be considered to have predeceased the testator and so, will not benefit, despite being nominated as a beneficiary. If that is not what you intended, you need to update your will after a divorce and specify what your wishes are for your ex-spouse after the three-month window period expires. Often legal obligations arise as a result of a divorce order and this should be borne in mind when drafting your will.
Children: The birth of a child or additional children will call for changes to your will, particularly to cater for their situation on the death of the last dying parent. You will most certainly want to ensure that your children are taken care of after you die. Depending on their ages, you might consider providing for guardianship and you might decide to create a trust for any minor children (those under the age of 18). Without this, the appointed guardian will face inconvenience in accessing any funds needed to take care of the children, or ensuring viable growth for those funds.
Beneficiaries: If a nominated beneficiary dies without provision being made for a direct substitute beneficiary, the nomination should be revisited. Similarly, a previous relationship may have ended, or new relationships formed, which you may want to consider. Failure to do so may result in your intentions being frustrated.
Employment: Changes in your employment or career might affect your finances and, therefore, your estate. For instance, a new business venture might require life cover to fund a partnership buyout or to settle liabilities in general. If you have retired recently, this life cover might now be superfluous. On retirement, you may wish to integrate the proceeds of your pension fund into your estate plan.
Financial circumstances
Any major or general change in your financial circumstances should trigger a reminder to review your will.
Assets: Perhaps you have inherited a substantial estate, requiring you to re-look at your will, especially from a potential estate duty perspective. Alternatively, you may have fallen on hard times through unforeseen or added financial obligations and debt, which may require you to reassess the liquidity of your estate. Or you may have realised a significant asset from the sale of a property that is mentioned in your current will, but without a replacement provision. Events of this nature will require you to revisit the document.
Insolvency: What happens if a beneficiary’s financial circumstances change? If, for example, a beneficiary is exposed to potential creditors’ claims, or has been declared insolvent, this will require you to build in certain safeguards for that beneficiary’s benefit.
Changes in law
Changes in terms of the Law of Succession in general, and specifically in tax law, should cause you to re-examine your will. Recently, for instance, the estate duty threshold was increased substantially with the introduction of the so-called “portable estate duty”. This is a good reason to revisit your will if it contains the commonly applied section 4A abatement trust.
If the changes required are insubstantial, making amendments, deletions or additions by way of a codicil rather than drafting an entirely new will may be all that is necessary.
In our experience, if a long time has elapsed or major changes have occurred in the interim, an out-of-date will can prove to be more misdirected and cause more hardship to the deceased’s family than if the person had died without a will, because there are no forced inheritance provisions in our law.
Note:
The word ‘marriage’ is used in the wider context to include alternative forms of relationships recognised in our society.
Police Minister Nathi Mthethwa has approached the Constitutional Court to overturn a SCA decision that requires an offence under investigation to be mentioned in a search warrant for a warrant to be valid. According to a Business Day report the consequences of the SCA judgment in September are far-reaching – with many 
warrants issued in terms of the Criminal Procedure Act being deemed unlawful because they did not mention the offence. The Ministry fears that the criminal justice system will be thrown into turmoil if the court declared that the judgment covered all warrants which did not specify the offences being investigated. In his written arguments before the Constitutional Court, the Minister argues that the failure to specify an offence only applies in the National Prosecuting Authority Act and does not cover warrants issued under the Criminal Procedure Act. The report notes in its judgment, the SCA said the requirement that the offence must be specified was laid down unequivocally and without qualification in the Constitutional Court judgment of Thint versus the National Director of Public Prosecutions. Judge Robert Nugent said he saw no material distinction between a warrant that was issued under the National Prosecuting Authority Act and a warrant that was issued under the Criminal Procedure Act. Full Business Day report
The ‘voetstoots’ clause used in sale agreements to protect sellers of faulty products will have little power under new legislation protecting consumers, says a Daily Dispatch report. From 24 October, when the Consumer Protection Act (CPA) takes full effect, ‘the concept of voetstoots is not going to be applicable any more’, said Department of Trade and Industry (DTI) director of Legal Support and Prosecutions Sipho Tleane. The voetstoots clause at present absolves sellers of undetected defects after a sale is concluded. But the CPA addresses this problem by providing every transaction that falls within its scope an ‘implied warranty of quality’. This means all goods will be sold with the expectation they are of good quality, in good working order and free of all defects. ‘The ‘implied warranty of quality’ would then declare the voetstoots clause – and any ‘no warranty’ clause, for that matter – null and void. The only way sellers can get past the implied warranty is to describe the condition of the goods in specific detail to make it clear in which condition the goods are being sold. Full Daily Dispatch report
Section 198 of LRA will be repealed – Minister
Minister of Labour Membathisi Mdladlana said comments that the proposed new labour legislation had been drafted by inexperienced lawyers ‘was somewhat racist’, adding that ‘all of the drafters are black lawyers and the bulk are advocates’. A report in Business Report notes the Minister said that the new legislation would address the controversial issue of labour broking and the need to develop a concept of decent work. ‘The whole of section 198 of the Labour Relations Act (which deals with temporary employment services) will be repealed and will be dealt with in the Employment Services Bill.’ He added that the proposed legislation had been to the Cabinet Committee and to the relevant Cabinet cluster and that the state’s law advisers were now looking at it. According to the report, he said the government was gearing up to deal harshly with employers who did not adhere to labour legislation and employment equity standards. Full report in Business Report
Business Leadership SA (BLSA) chairperson Bobby Godsell and CE Michael Spicer have announced that the BLSA would draw up an ‘anti-corruption’ code to govern members’ behaviour. A report in Business Report says the code will include a clear definition of corruption. ‘It is not acceptable to seek political influence in order to avoid a regulatory problem,’ said Godsell. But he refused to enter into debates about individual companies. Godsell said the recent controversy around mining titles ‘undermines the country’s reputation and standing in terms of investor security and has caused harm beyond the important mining sector. Real damage is being done to our economy and society in a broader way.’ He criticised the existing system of granting mining licences. ‘For an economy to work well the rules have to be clear and consistently applied,’ he said. ‘There is a big case for conflicts that arise to be resolved expeditiously through our courts.’ Full report in Business Report
The BBC is reporting on a current case involving a soldier’s Constitutional rights under the Human Rights Act 1998. The BBC reported:
“The Supreme Court had been asked to decide if British military personnel, who are already covered by the Human Rights Act while on bases abroad, were also protected when they set foot outside the camp gates. Two lower courts had decided they were, raising the prospect of legal action over inadequate equipment. But today the judges ruled by a majority of six to three that it would be wrong to extend the reach of the legislation, saying that could have made the job of commanders on the battlefield more difficult. The case was brought by the mother of a soldier who died of heatstroke in Iraq. Although her request for a full inquiry into his death was upheld, she will now take the wider issue to the European Court of Human Rights” Read the rest of this entry »
Traditions, nowadays seen as being of ”trivial” significance, is how Barristers/Advocates attribute items of status within their profession. A seldom practiced tradition in modern times has to do with the colour of the bags they carry their robes in. Once a junior has assisted a Silk (Senior Council/Queen’s Council) in a trial it is customary for the Silk to present the “junior” with a red bag with the Junior’s initials (in white) on it. Juniors are required to use a blue bag. While the tradition has fallen into disuse in certain jurisdictions, it’s still regarded by many as a sign of significant achievement.
This morning I read an interesting post on Gaea’s Blog concerning Mahatma Gandhi. The last part of the post tells of an interesting story when he was a practicing lawyer in South Africa. It’s perhaps a solution to help the Banks and Credit Providers take a unique approach to sorting out the economic mess of the recession.With permission I have included it below:
“…Perhaps he can point our world banks to a valuable lesson and the secret to financial success. I am reminded of a story: When Gandhi was practicing as a lawyer in what was then Natal (now KwaZulu-Natal), South Africa, his clerk came to him wishing to issue a court summon from a debtor for non-payment of Gandhi’s legal fees. He quickly admonished the clerk and replied “…Why should the man be punished for not being able to pay me? It is I who chose to give him credit and therefore have been the one who has brought this misfortune upon myself…”
Gaea’s is a wealth of information and worth a visit no matter what you particular incliniantion is towards things spiritual and life’s values, there is always something of interest to read and a lot of good practical comm0n sense advice about life (Me being a firm believer in common sense). The full link to the post can be found here
The Fifa Local Organising Committee (LOC) must release all tender documents relating to the World Cup to the Mail and Guardian newspaper, the Johannesburg High Court ruled yesterday – the second victory in a week for the paper under the Promotion of Access To Information Act. At the weekend, it won an order forcing the state to hand over a report on the 2002 elections in Zimbabwe. Acting Judge Les Morison ruled yesterday that the LOC must hand over all tender documents relating to contracts awarded for the tournament and the Confederations Cup to the paper within 30 days, says a report on the IoL site. The paper launched its application after the LOC refused to release the documents. The documents included the names of companies to which contracts were given, as well as the value of the tenders. The LOC contended it is a private body and should not have to comply with the requirements of transparency laid down in public procurement legislation. However, Morison said that the M&G and the public had no way to know if there was any corruption with the awarding of these tenders if the LOC did not provide them with the tender documents. Morison awarded costs to the newspaper. Full report on the IoL site
While criminal matters usually take a long time to be finalised because of SA’s case backlog and the complexity of investigations, the number of cases that the World Cup special courts have dealt with point to a way for our criminal justice system’s potential to exercise speedy and effective justice, says a Business Day report. It says the special courts have 110 magistrates, 260 prosecutors, 93 foreign language interpreters and 110 local language interpreters, 1 140 court officials to assist with court proceedings and 327 court orderlies. Justice Minister Jeff Radebe says these courts are intended to finalise cases involving non-nationals to minimise the costs of having to bring them back later for their testimony. The question that remains is why this approach of dispensing swift justice is not adopted to reduce the backlog of cases in the ordinary courts, says the report. At the end of March last year, there was an outstanding roll of 51 802 cases. Some explanations from people involved in the special courts were that people who were arrested pleaded guilty and that police did proper work in investigating the cases that were sent to the courts. Full Business Day report