CRYPTOCURRENCY IN YOUR ESTATE

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It was inevitable that virtual money and digital currency would find its way into our everyday lives. After all, we have virtual friends thanks to social media and virtual shopping malls thanks to online retailers….

Cryptocurrency forms part of your digital assets. Unlike other digital assets such as login credentials and social media profiles, it has a monetary value. Nobody will know that you own this asset unless you have advised them accordingly. This is great if you are planning to keep your wealth under the radar, but what will happen if you pass away unexpectedly and you have not informed your heirs about your cryptocurrency stash?

Even if your heirs do know about your cryptocurrency, this is not something that they can access without your login credentials. The importance thus of providing your lawyer and/or estate planner with these details cannot be stressed more. This will not only enable them to administer your estate accordingly, but will also ease up the process of gaining access to these crypto currencies.

As cryptocurrency is an asset in your estate, it will be subject to executor remuneration, as well as estate duty.

The South African Revenue Services (SARS) has stated that crypto currency transactions are subject to the general principles of our tax law. Therefore any revenue received, gains made or losses incurred may be regarded as revenue in nature and will be included in the taxpayer’s income tax or as capital in nature and be subject to capital gains tax in the taxpayer’s hands.

The executor of your estate will have to determine the monetary value of your cryptocurrency. They would have to establish in which cryptocurrency you have invested, as well as the quantity thereof and then calculate its value. The executor is placed in a very difficult position due to daily cryptocurrency rates changes and the value will either increase or decrease, depending on the market.

One of the most efficient ways of transferring your digital assets to your beneficiaries may be to make the transfer itself a digital process. There are a number of ways to do this. One option is for multiple signature transactions. In Bitcoin this is known as M-of-N transactions. This means that a minimum number of signatures are required out of the number of possible signatories that you have provided. These signatories can be, for example, the heirs as well as the nominated executor of your estate.

Another option is for an event to trigger the transfer. Bitcoin calls this the Dead Man’s Switch method. This method uses a computer generated program to send emails to you on a regular basis. If you don’t respond to these emails, the computer will automatically log into a database to check for a death certificate. If there is one listed, the transfer will automatically commence.

A last option is to use a Smart Contract. These contracts are also known as Lock Time Transactions. This requires you to identify a time at which the transfer of the asset is to occur. You then need to continually reset or postpone the transaction. Upon your death the transaction will be effected on the date to which it was postponed.

There is no doubt that cryptocurrency is of great value to many people, but it’s also really important that if you decide to invest in digital currency, you should consider what will happen to it after you pass away. This includes obtaining legal advice on how to manage those assets and how they should be transferred to your beneficiaries after you are gone.

Rauch Gertenbach is committed and ready to assist you and your loved ones in ensuring that this is a stress free process.

Article by Ankia Botha.

Kindly contact one of our Estate-specialists should you require assistance in this regard at 044 601 9900 or office@rgprok.co.za

KEEPING A FAMILY OUTSIDE THE COURT

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Family law issues such as divorce, maintenance and contact rights with regards to minor children are always accompanied by emotion. There is usually animosity between the parties which results in them wanting to attack each other with the full force of the law and litigation.

Unfortunately, litigation more often than not, only adds fuel to the fire by raising higher emotions which is to the detriment of both parties and even more so, to the detriment of the minor children.

In the event of your marriage being unsuccessful, perhaps you should consider pursuing a “successful” divorce by means of avoiding unnecessary conflict as far as reasonably possible.

There are many ways in which conflict can be managed and avoided. The writer believes that the quicker the lawyer can resolve disputes, the more efficient he will be in taking on new cases and / or resolve more disputes. This will not only increase the opportunity to maximise fees, but it will create more opportunities which will lead to better overall results with satisfied clients.

Often conflict is good (depending on the type), but unresolved conflict is dangerous. There is a definite place in the legal profession to use mediation while working on or resolving a dispute. Mediation is an informal and confidential way to resolve a dispute with the help of a neutral third person, known as a mediator. Mediation is mostly a more affordable, efficient, viable alternative to litigation and has indeed changed the legal landscape.

Whereas the rules of the court and legal principles are utilised as weapons to destroy the opposition through the litigation process, Mediation on the other hand, may help to protect the relationships between the parties.

For example, let’s us look at it as a boxing match. The referee makes a decision and the fighters must accept it.

There will therefore always be a person that feels as though the decision is not right. The writer suggests that it would be better to try and get consensus between the parties in dispute, leaving both parties satisfied (albeit only partially) and only upon failure of such a process and where there is seemingly no way to attain consensus, then approaching the court can be considered.

Legal practitioners must always remember that “a case is a person and a person is a case”, and as such, should strive to approach, handle and resolve family law cases so that the parties' relationships are protected and maintained, in so far as reasonably possible.

In practice, we often see that by the time a case is over, the relationship between the parties is also destroyed. This can be avoided by using mediation before the court is approached. It's not only more financially affordable, but can also be more effective, as stated above.

The writer hereof is of the opinion that when a matter is taken to court, there will only be one winner, but when a matter is taken to mediation, both parties may emerge winners.

For more information kindly contact Marinus Barnard of Rauch Gertenbach at 044 601 9900 or office@rgprok.co.za

IS YOUR WILL LEGAL AND VALID?

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We spend most of our time building a financially safe and stable future for ourselves and our loved ones. Whether you are young and recently started a career, or middle-aged and at the top of your career, or maybe you have already paid your dues and now enjoy retired life, everyone has a unique 'estate' - the sum of our life's work.

While we may be happy enough to wake up every day and provide for our loved ones by exercising control over our own estates, a day will come when we are no longer there. What happens to your estate when that day comes? Our advice is to ensure that proper estate planning is conducted and that you have a legal will in place.

Living in South Africa means that you are fortunate enough to have testamentary freedom, meaning that you can dictate how you want to manage and distribute your estate after you die. This is to say if these wishes are set out in a legal document that complies with the formal requirements prescribed by law.

Beware! To write your wishes on a piece of paper or to download and complete a "free will" from the internet does not necessarily mean that you have a valid will in terms of the Wills Act. Should your will be found to be invalid, it is equivalent to not having one at all. Your estate will then be distributed under the Intestate Succession Act and no attention will be paid to any wishes you may have. Legislation then determines who your heirs will be as well as the inheritance they will receive.

Proper and professional estate planning will enable you to regulate and possibly combat financial issues such as cash shortages and estate duty. Have you ever thought of the consequences of your matrimonial regime, possible divorce orders, maintenance orders and life insurance policies? We recommend that you do so as all of these factors are likely to have an impact on your deceased estate.

To have a will allows you to nominate not only a guardian for your minor child / children but also to nominate someone who you trust, to act as a trustee in a testamentary trust established to protect the child's inheritance until he / she reaches a specific age.

Examples of options available when drawing up a will are to create a lifetime usufruct of your assets in favour of your spouse or the establishment of a testamentary trust in cases where the heirs are not considered "financially wise". None of these options will, however, be in force and effect if they are not contained in a legally valid will!

None of us know what tomorrow brings. All we know is that no matter how big or small your estate may be - there comes a day that you are no longer there and it is of the utmost importance that your estate be administered and distributed according to your wishes. Make sure that your will is compiled by a professional who has the necessary knowledge and expertise to ensure that your wishes are properly recorded and eventually executed.

Rauch Gertenbach Attorneys have professional staff standing by to assist you at no cost, with the drafting or revision of your will. Feel free to contact us at 044 601 9900 or office@rgprok.co.za. Terms and conditions apply

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“NEW”/”OLD” LEGAL PRINCIPLES REGARDING THE ACCRUAL SYSTEM

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In two recent court decisions, in the Supreme Court of Appeals and the High Court, Western Cape respectively, important aspects regarding marriages out of community of property to which the accrual system applies, are considered.

In the matter between ST v CT, the Supreme Court of Appeal confirms the distinction between the stipulated initial value of the respective parties' estates when the marriage commences and the list of assets excluded in the calculation of the accrual when the marriage is dissolved.

It is clear that the pension interest of a spouse for the purpose of calculating the income is taken into account. The issue before the Court was whether a spouse's living annuity could be considered as an asset to calculate the accrual. The Court makes a clear distinction between a spouse who is a member of a pension fund and a spouse who has taken a living annuity from an insurance company. In Section 37A - 37D of the Pension Funds Act and Section 7 (7) - 7 (8) of the Divorce Act, the claim of a spouse against the pension interest of the other spouse is recognized.

The Court points out that in the case of a living annuity, the capital vests in the insurance company and the right to claim for payment from the insurance company by the spouse who is the owner, is dependent thereon that he should have been alive when the annuity became due and if he was no longer alive, payment of the capital is dependent on whether he has nominated a beneficiary or not. If the spouse passes away before the payment could be made, the benefit in terms of the living annuity will be paid to his nominee (if nominated) and if there is no nominee, the benefit is paid to his deceased estate. The Court orders that a living annuity not be taken into account when calculating the accrual where the marriage is dissolved by divorce. The writer hereof is of the opinion that the capital value of a living annuity may be taken into account when calculating the accrual upon dissolution of the marriage as a result of the death of a spouse.

In TN v NN, the Western Cape High Court considered various conflicting decisions in other courts in respect of the provisions of Section 6(3) of the Marriage Goods Act 88 of 1984. The Court finds that the initial value(s) of spouses' estates as set out in an antenuptial contract contract and / or certificate are only prima facie proof of those values. Spouses, as well as third parties who have an interest in determining the values, can offer evidence to indicate the correct values.

Article by Barend Kruger.

For further comment or information kindly contact Barend Kruger, Van Niekerk Steyn or Pieter van der Merwe of Rauch Gertenbach Attorneys at 044 601 9900 or office@rgprok.co.za

Con Court recognizes surviving spouses in Muslim marriages

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In South Africa, there is currently no legislation which recognises and regulates Muslim marriages. This lack of legal recognition for Muslim marriages solemnised under the doctrines of Islamic Law leaves spouses to these marriages vulnerable and without the protection and automatic rights otherwise afforded to those spouses who are marriages are legally recognised and officially registered under South African legislation.

Currently, South African law only allows for the formal registration of a marriage solemnised and registered in terms of either the Marriages Act 25 of 1961, the Civil Union Act 17 of 2006 and the Recognition of Customary Marriages Act 130 of 1998, none of which make provision for the registration of Muslim marriages.

A surviving spouse in a Muslim marriage was, until recently, not included in the definition of a “surviving spouse” for the purposes of the benefits provided for the Wills Act 7 of 1953.

The struggle of spouses in Muslim marriages was however recently recognised by the High Court of South Africa, which recognition was confirmed by the Constitutional Court in the case of Moosa and Others v Minister of Justice and Correctional Services and Others 2018 [2018] ZACC 19 (29 June 2018).

In this matter, the deceased was married to two women (the second and third applicant) under the tenets of Islamic Law. The deceased married the second applicant in 1957, followed by his marriage to the third applicant in 1964.

In 1982 after having been advised to do so in order to qualify for a bank loan to fund the purchase of the family home and with the consent of the third applicant, the deceased formalised his marriage to the second applicant in terms of South African law.

The deceased then lived together with his two wives and some of their nine children in the family home until his death in 2014.

Upon his death, the deceased’s children renounced the benefits bequeathed to them in terms of his will. In this instance, section 2C(1) of the Wills Act entitles a “surviving spouse” to receive the benefits renounced by the testator’s descendants.

After having adopted a strict approach to the interpretation of “surviving spouse”, the Registrar of Deeds declined to approve the registration of a portion of the deceased’s share in the family home in favour of the third applicant.

After having considered the past experiences of Muslim women in South Africa, South Africa’s obligations in terms of international law as well as the third applicant’s rights to equality and dignity, the Constitutional Court confirmed that section 2C(1) of the Wills Act was unconstitutional and invalid in that it unfairly discriminates against the third applicant on grounds of her religion and marital status and by failing to recognise her as a “surviving spouse” directly infringes on her right to dignity in a most fundamental way.

The Constitutional Court then went on to grant the order in favour of the applicants and amend section 2C(1) to include every husband and wife of a monogamous and polygamous Muslim marriage solemnised under the religion of Islam in the definition of “surviving spouse” for the purposes of section 2C(1) of the Wills Act.

IS YOUR FIREARM LEGAL?

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The Constitutional Court (“Con Court”) handed down a judgment last week in the case with the South African Hunters and Game Conservation Association (“the SAHGCA”) which dealt with firearm licenses. The appeal by the Minister of Safety and Security was upheld and the Supreme Court of Appeal’s ruling reversed.

The result of the Con Court’s judgment is that firearms with expired licenses and for which the owner has not timeously applied for renewal, are illegal and the owner may therefore be prosecuted. Such a firearm, once having become illegal, cannot be legalized again and must be handed in to the South African Police Services (“the police”). According to regulations in the Firearms Control Act (“the Act”), the police have the discretion in deciding whether or not compensation will be given for the firearm once handed in. The current compensation rates are R500 for a handgun and R1 000 for a rifle. It is doubtful whether the police will be willing to pay this compensation or whether such a claim for compensation will succeed.

It however remains an open question whether or not the “old green licenses” can ever expire at all. The police believe these licenses have expired, but there is no statutory provision that supports this. If a person was in possession of both a green and new license, he had two valid licenses. If the new license lapsed, we are of the opinion that such owner may have a valid defence against any criminal charge brought against him.

Based on preliminary information, the police are considering granting an amnesty period of a few months. Such amnesty will have to be approved by Parliament, yet the application for such approval is apparently yet to be submitted. If amnesty is approved, illegal firearms must be handed in and the owner thereof will not be prosecuted. The firearm will be tested and if the firearm is found to be linked to a criminal offence, prosecution for that particular offence may be instituted, save for the offence of illegal possession of a firearm.

It is currently uncertain whether an owner of an illegal firearm will be able to apply for a new license for a weapon handed in under amnesty. It is doubtful whether the police will be willing to allow this and neither the Act nor the Con Court's ruling make provision for this.

The result of the Con Court's ruling is, simply put, that any firearm for which the license has expired must be handed in to the police. Where the police will keep these firearms and how they will handle the volume is uncertain, but the idea is that the firearm will eventually be destroyed.

Interest organizations such as the SAHGCA are currently in talks with the police regarding the process moving forward, seeking meaningful solutions to the confusion and uncertainty that the Con Court's ruling may now have sparked. It seems that the police are willing to participate in talks and to find solutions. Certain political parties are also participants to these talks and the FF+ has indicated that they are proposing a bill of amendment by means of a motion from private members to amend the Act and by doing so, address the problem.

The police and the Minister got their way, it remains to be seen whether they have the ability and capacity to perform accordingly. What remains important, however, is that firearm owners must timeously apply for the renewal of their firearm license (i.e. 90 days before the expiration date).

Article by Danie Acker. For further information or enquiries, kindly contact Ferdi Scheepers at 083 772 2777 or via e-mail at office@rgprok.co.za

RENTING A PROPERTY? KNOW YOUR RIGHTS

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Many people these days do not own a property due to financial reasons of not qualifying for a bond or due to work relocation which possibly makes it impractical to buy a house.  The result is that more people rent property which brings into effect a contract between a landlord and a tenant.

This contract can be verbal, unless the tenant requests the landlord to have the agreement reduced to writing or vice versa. A written contract is the safest route to go as it stipulates the terms and conditions upon which the property is occupied. It furthermore eliminates any possible misunderstandings that may arise between the parties, thereby reducing unnecessary disputes and costly litigation.

Common disputes which arise are:
1. Non-payment of rental;
2. Punctuality of rental payments;
3. Payment of municipal fees etc.;
4. Who is responsible for certain maintenance on the property;
5. Expiry / termination of the contract;
6. Cancellation in cases of breach of contract by either party;
7. Notice periods.

By reducing these essential terms to writing, it binds both parties and gives them a clear route to follow if they wish to call on any of their rights.

A problem that often arises for landlords is with a defaulting tenant, where the tenant who entered into the agreement is an entity such as a company or close corporation.  These are often "shells" and even if a judgement is obtained against a defaulting tenant for arrear rentals, the landlord has no success when executing the warrant of attachment via the sheriff, because the entity often has no assets.  It is therefore of the utmost importance that the representative/s of the entity sign as co-tenants to the contract. This will entitle the landlord to institute action against all the signatories to the lease agreement, resulting in a much greater chance of recovering arrear rentals or damages.

It is also important that a complete list of defects be compiled and signed by all parties within the first few days after occupation of the premises.  This will ensure that once the contract comes to an end, the parties can once again inspect the property  and compile a list of defects and use the deposit to remedy the defects, if needs be.

Lastly, it would be a good idea to obtain the permission of the tenant/s to do a background and credit search prior to entering into the rental contract, to ensure that the tenant has the financial means to meet the rental commitments of the contract.

By considering and implementing the above basic principles, the renting of a property stands a much greater chance of being a positive experience for both landlord and tenant.

For more information or any enquiries contact, Van Niekerk Steyn of Rauch Gertenbach Attorneys Inc. at 044 601 9900 or office@rgprok.co.za .

 

HANDLING OF SPEEDING FINES

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In South Africa, as in most other countries in the world, speed restrictions are determined and regulated by legislation. It then remains the duty and responsibility of every driver of a motor vehicle to make himself / herself aware of what the speed limit is in the area where he / she is driving.

If a driver exceeds this prescribed limit, he / she may be pulled over and fined by a traffic officer. The amount of this fine will depend on the extent to which the limit has been exceeded. In cases where the speed limit was exceeded by 40km / h or more, the driver of the vehicle may be arrested and brought before a court without a fine being imposed.
In instances where a fine is determined and issued, the driver is allowed a period of time to pay the fine or alternatively to appear before the relevant court to state reasons why he / she believes there to be a legitimate reason why the speed limit was exceeded and why he / she should therefore not be liable to pay the fine, or to apply for a reduction of the fine amount.

Should a person not pay the fine or fail to appear before the court on the prescribed court date, the court may issue a warrant for that person's arrest. This warrant is then circulated on the traffic authority system and an offender runs the risk of being arrested at a roadblock in execution of this warrant. Furthermore, when the driver / owner of the vehicle that incurred the fine, applies for the renewal of his / her vehicle license, the outstanding fine may appear on the system and prevent the license from being issued.

In cases where a fine is imposed by means of a speed camera and not by a traffic official personally, a person may, after being subpoenaed to appear in court, challenge and argue the validity and / or legality of that specific fine and have it tested in court.

It is never wise to ignore a traffic fine, or to simply throw it out of the car window. In fact, it is better to keep to the prescribed speed limit, as violating the speed limit does not only endanger the driver's own safety but also that of other motorists and pedestrians.

For more information please contact Ferdi Scheepers on 044 601 9900 or office@rgprok.co.za.

 

CAR ACCIDENT: POLICE, CIVIL CLAIMS, INSURANCE

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Often victims of a motor vehicle accident have a misconception about the different parties that play a role and perform specific functions post accident. Legal practitioners often hear statements such as "The police have already taken a statement from me" when an affidavit must be drawn up in a civil case arising from the same accident. The question is who are all the role players and what are their respective roles? 

Police
Firstly, it is important for the police to get information that will enable them to determine how the accident happened and who should be held accountable. The police investigation determines whether a person will be criminally charged with a traffic violation and / or a crime such as reckless and / or negligent driving or culpable homicide (manslaughter), or even murder.

Short-term insurers
The short-term insurer is involved where damage to a vehicle or other property was incurred. Statements of how the accident happened and the damage assessment (assessors and panel beaters) are normally used in the process. Police affidavits and accident reports are sometimes called on as evidence.

Civil claims and proceedings are often instituted (insurance companies) in cases where a party to an accident does not have short-term insurance or where a dispute arises about the merits of the accident or extent of the damage. This process can once again mean that statements and evidence must be obtained to prove the claim. Police documentation can be used herein but is not a definite requirement.

Road Accident Fund
Claims for personal injury and death of dependents (don’t you mean breadwinners and not dependents?) are instituted against the Road Accident Fund. This process involves a separate investigation in which affidavits are obtained. Police statements and evidence can be used, but it is not a requirement that the state had to accuse and successfully prosecute before these claims can be legally recognised. On the contrary the state's investigation into a crime plays a limited role and the attorney who handles a claim against the Road Accident Fund, has limited interest and queries concerning the outcome of the criminal case. Only if a person is killed in a car crash, does it becomes necessary to obtain the results of the inquest or criminal prosecution so as to establish a successful claim against the Road Accident Fund.

Compensation Commissioner
If an employee is killed or injured in a car accident while on duty, claims are made against the Compensation Commissioner and a separate investigation is lodged. Disciplinary action against an employee who caused a motor vehicle accident in the course of his employment, can lead to a separate investigation that consists of the collection of all evidence (statements, file contents and accident reports).

For more information you are welcome to contact Barend Kruger of Rauch Gertenbach Attorneys at 044 601 9900 or office@rgprok.co.za ; www.rgprok.co.za  .

DOES YOUR BUSINESS HAVE A FEVER?

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You may be missing some critical distress signals in your business that may put your business in intensive care or even worse, in the morgue! What symptoms do I look for and what remedies can be applied?

The Companies Act no 71 of 2008 defines a Company that is in financial distress as follows:

  • If it appears to be reasonably unlikely that the company will be able to pay all of its debts as they fall due and payable within the immediately ensuing six months; or
  • It appears to be reasonably likely that the company will become insolvent within the immediately ensuing six months.

One can translate this into a few practical questions:

  1. Does your business have enough cash to pay its suppliers, staff and SARS as and when their payments become due from the profits generated by the business?
  2. Should one or two of the main customers of your business close down and not be able to settle their accounts, will your business be in a position to pay all of its expenses and continue trading?
  3. Are all your SARS submissions and payments up to date?
  4. Does your business meet all Regulatory requirements, including those specific to your industry?
  5. As per the requirements of the Labour Relations Act, does your business have personnel files for all staff members including owners and managers that are employed by your business, containing leave applications, disciplinary procedures and induction documents?

If your answer is No to any of the questions above, your business may be destined for troubled times and on its way to either intensive care or even worse, the morgue.  Should your business fall within the Companies Act definition of financial distress, the Companies Act stipulates that there is an obligation on the Business Owner of a distressed company, to take the necessary remedial action through a Business Rescue process. 

Rauch Gertenbach Attorneys Inc. have a team of specialists with an impeccable record of successful Business Rescues available to assist and advise on your unique set of circumstances.

Simple tips that can be followed: 

  • Know and understand the financial drivers and numbers in your business, daily, weekly, monthly;
  • Cash is King – and that does not mean profit! Is your cash flow positive?
  • Have a clear business- and strategic plan in writing, that provides guidelines of the “Who”, “What”, “Why” and “How” questions in your business;
  • Make swift and brutal decisions where necessary; 
  • Get the advice of a specialist to help you make the correct decisions in your business going forward.

For more information, please contact Danie Acker or Basson Piek at Rauch Gertenbach Attorneys Tel 044 601 9900 or office@rgprok.co.za

What are the factors that cause delays in the administration of an estate and how can the process be expedited?

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The average time it takes to wind up an estate is 6 months, but in extreme cases it may even take years to finalize.

Factors that can cause delays:

  • The absence of a valid will.
  • The pressure of work overload experienced bylocal authorities which lead to delays in the issuing of municipal clearance figures.
  • Outstanding tax returns.
  • When title deeds are missing and duplicates must be requested.
  • Cash shortfalls and the associated or subsequent sale of estate assets.
  • Unnatural deaths, which mean waiting for post-mortem reports from the police.
  • The redistribution of assets.
  • The transfer of firearms.
  • The acquisition of balance sheets.
  • The acquisition of a valuation of shares for estate duty purposes.
  • Pending Court Cases.
  • Maintenance Claims.
  • Divorce orders that have not been adhered to.
  • The tracing of heirs.
  • Complicated business interests for which no proper estate planning had been done.
  • Having to transfer funds to heirs who now live abroad and no longer have South African bank accounts.
  • The illegal occupation of residential properties and associated eviction orders.

Expedite the process by doing the following:

  • Conduct proper estate planning and ensure you have a valid will.
  • Provide correct and complete information from the outset.
  • Take out insurance policies to prevent cash shortages in your estate.
  • Ensure that your will is valid and enforceable.
  • Keep all important documents, such as insurance policies, investment documents, title deeds and bank statements in a safe place.
  • Ensure that your original will is kept in safe keeping.

For any further information or assistance, contact our highly skilled Estates staff at 044 601 9900 or office@rgprok.co.za.  Get your online Will on our Will Page.

ESTATE PLANNING – A WAY TO REDUCE THE COST OF DEATH

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Let’s be honest, estate planning and the drafting or revision of one’s last will and testament is a daunting task which forces us to think about our own mortality – a thought which we would rather avoid.

However, the death of a loved one is a traumatic and emotionally turbulent burden for any family to bear and is often compounded by the high cost of death. Albeit that our mortality is beyond our control – the cost implication of our death on our loved ones is not - it is something which, through proper estate planning, can be effectively managed.

Costs at death can be widely grouped into two categories – administration costs, which are usually incurred after death and claims against the estate, which usually consist of those liabilities for which the deceased was liable as at date of death.

Administration costs include executor’s fees, costs of security, conveyancing fees (transfer and bond cancellation costs), advertising costs, master’s fees, appraisement costs, bank charges, accountant’s fees and the cost of realising or liquidating assets.

Executor’s fees are, in absence of the will stating otherwise, currently 3.5% of the gross estate value. If the executor is VAT registered, VAT at 14% will also be charged. Executors are furthermore entitled to 6% on income earned in the estate after death.

Claims against the estate vary depending on the deceased’s specific circumstances but will generally include financial liabilities such as credit cards, overdraft facilities, mortgage bonds, personal loans, vehicle and asset finance and store cards. Other claims may include maintenance and accrual claims, funeral expenses, medical costs and rates and taxes payable in advance with the transfer of property.

Credit life insurance, funeral policies and life insurance may all serve as possibly simple and affordable relief to a cash deficit in an estate.
 
The entirely amended section 25 and new section 9HA of the Income Tax Act No. 58 of 1962 which impact directly on the taxation of deceased persons and deceased estates makes tax liability more present and real than ever before. The addition of section 7C to the Income Tax Act has also resulted in many having to revise their wills and the use of trusts as an estate planning tool and of course, the risk of estate duty liability remains ever present.

All of the above administration costs and claims need to be paid in cash. A solvent estate is not necessarily a liquid estate. When there is a cash shortfall which the heirs are not able to supplement, the executor may be forced to sell estate assets – of which many are often high value assets being realised to supplement a much smaller cash deficit. The realisation of these assets may often also give rise to a capital gains tax implication which in effect will increase the estate’s tax liability and cash deficit. Needless to say, the cost of realising these assets, for example auctioneer or estate agent fees are not to be forgotten.

The good news is that through efficient estate planning, one is able to circumvent some and substantially reduce many of these costs and ensure sufficient provision for those which are inevitable.

Unfortunately many people underestimate the cost of dying and fail to observe proper estate planning practices. It’s never too early or too late to begin estate planning. By reviewing your will and estate plan on a regular basis you could not only save time and money but also, spare your loved ones the burden of unnecessarily high estate costs and the emotional trauma associated therewith.
 
Should you require any assistance or further information, kindly contact one of our Estate Planning specialists at office@rgprok.co.za or 044 601 9900.

Written by Kelly Fourie-Barnard.

 

SLIP and FALL - LIABILITY CASE OR NOT?

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I walk into the supermarket to do some shopping. Someone has dropped a bottle in one of the aisles. The cleaners have already started cleaning the floor with a mop. I walk across the slippery surface, my foot slips and I fall. Do I have a claim against the supermarket owners and if so what kind of claim? The answer to this question is not always obvious.

It is generally accepted that customers in a public place such as a supermarket should be able to enjoy undisturbed shopping and that there should be no obstacles that could cause them injury. Liability is however not always a foregone conclusion and some challenges may arise when attempting to prove liability in a court of law.

Although the general rule is that the supermarket owner must ensure that situations which could cause injury to the customer do not come about, it is only human that such situations will nonetheless arisefrom time to time. It is the duty of the owner of the supermarket to ensure that the customer is properly warned against the impending danger. The owner could and probably should, for example, take measures to demarcate or cordon off the dangerous area until the area is safe. At the same time, the client should be mindful of where he/she walks and cannot complain about being injured whilst in a dangerous place if he/she was aware of such danger. .

Furthermore, a causal nexus must exist between the damage or injury suffered and the negligence of the supermarket owner. For example, if I fall and break my ankle, I cannot then also make a claim for the hip replacement that I had to undergo a year ago.

General damages that include pain, suffering, discomfort and emotional shock may be claimed. This type of damages is abstract in nature and is determined by looking at previous court cases where persons suffered similar types of injuries. Medical expenses and loss of income are further possible damages that may be proved. In addition thereto, a person may also claim for future medical expenses and future loss of income. The last mentioned types of damages are normally proven by presenting expert reports and evidence.

If a customer breaks his glasses or damages a cell phone in the process, he / she may also claim the repair or replacement value of such item.

For more information, contact Barend Kruger at 044 601 9900 or e-mail to office@rgprok.co.za.

LIQUIDATION OR BUSINESS RESCUE?

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In difficult economic and political circumstances, as currently experienced by SA, members of close corporations or directors of companies often find that the business of the CC or the company is no longer operating profitably. This is when the question about liquidation or business rescue is posed and consideration should be given to which is the best option for the company or CC.

If the company or CC can not reasonably pay all its debts as and when it becomes payable in the next six months or if there is a reasonable likelihood that the company or CC will become insolvent in the next six months, the obligation rests on the company or CC to decide whether it is a candidate for business rescue or otherwise liquidation.

In a business rescue, room is afforded to a company or CC to work out a rescue plan in consultation with all stakeholders in terms of which transactions and/or contracts are restructured or canceled to improve the company or CC's cash flow or debt position in order to continue its normal trading activities. In consultation with the creditors, a plan is drawn up and the Business Rescue practitioner is obliged to implement the plan.

If the plan fails, the Business Rescue Practitioner will put the company or CC into liquidation.

If it is clear that the company or CC cannot at all fulfill its obligations and is insolvent, business rescue will not be the appropriate course of action and the company or CC should be liquidated. Parties often take shortcuts and think that liquidation can be prevented by placing the company or CC in business rescue, instead of liquidation. If the company or CC does not have a good chance of rescue from the start and there is no feasible business rescue plan, the directors or members will only waste money and time by considering business rescue. It will simply not work.

The big difference between business rescue and liquidation is that in the case of  business rescue, a plan is developed to restructure the company's finances and contracts so that it can survive financially and continue as a healthy business. If a company's liabilities exceed its assets, it is insolvent. In such an instance it would not be a candidate for business rescue and should be placed in liquidation.

Business rescue and liquidation can be initiated by a special resoltion or by a court application as the case may be.

For any further information or advice regarding the above, please contact Danie Acker at Rauch Gertenbach Attorneys, tel 044-6019900 or by e-mail at office@rgprok.co.za .
 

Matrimonial Systems, the Law of Succession and Miscellaneous

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Persons who are married in community of property often make the remark when drafting a will in terms of which they nominate the survivor as the sole heir/heiress of the estate of the first dying: "If he / she dies, I inherit everything". Although it is true that the survivor gets everything, it is incorrect to say "I inherit everything". 

A spouse in a marriage concluded in community of property is already the owner of half of the joint estate. The survivor, therefore, is the owner of half of the joint estate due to the matrimonial property regime of in community of property and therefore does not inherit the entire joint estate. In other words, the survivor inherits only half of the joint estate (the deceased's half) because the other half of the joint estate already belongs to him / her. If in this case, a person dies intestate (without a will), the surviving spouse retains half of the joint estate as his / her property and the other half (deceased's half) devolves upon the deceased’s intestate heirs.  

The Intestate Succession Act stipulates that the surviving spouse is entitled to inherit an amount equal to R250 000 or a “child's share”, whichever is the greater. If half of the joint estate is R250 000 or less, the surviving spouse will inherit the deceased's entire estate (half of the joint estate). However, if half is greater than R250 000, it becomes more complicated and a “child's share” must be calculated and compared to R250 000 to determine which is greater. If the “child's share” exceeds R250 000, the surviving spouse will inherit the former. If the “child's share” is less than R250 000, the surviving spouse will inherit R250 000. The remainder of the deceased's intestate estate is divided between his other intestate heirs.

If persons are married out of community of propertysubject to the accrual system, the accrual claim must first be calculated. The spouse entitled to the accrual claim must first be awarded same before the estate of the deceased can be distributed / wound up.  The person who acquires the accrual claim, acquires it by virtue of the matrimonial property regimeout of community of property  to which the accrual system applies and is thus not inherited by virtue of succession.

An antenuptial contract  in respect of a marriage outof community of property may contain provisions directly relating to the distribution of an estate. It is also not uncommon for spouses married out of community to be joint owners of assets and / or businesses such as partnerships and other legal entities. These are important aspects to identify to ensure that each player's legitimate claims are met.

For more information please contact Barend Kruger at office@rgprok.co.za
 

THE SALE OF A DECEASED'S HOUSE

Nothing in life is guaranteed except death and taxes. In practice, it is common practice for us, at Rauch Gertenbach, to transport property under a contract of sale where one of the parties has died. Imagine a scenario where you have made an offer on your dream home and the owner has accepted it. Your mortgage has been approved and you have already notified your landlord that you will vacate at the end of the month. To your shock, you now hear from the transport attorneys that the seller died in a freak car accident over the weekend. What to do now?

First of all, it is important to understand that the fact that the seller / owner is now deceased does not invalidate the contract of sale and the contract does not expire if he has signed it before his death. On the contrary, there is still a valid, enforceable agreement in place and, as a buyer, you still have the right to transport the property into your name.

The Act requires the Master of the Supreme Court to appoint an executor who can provide transport on behalf of the deceased. In practice, this means that the deceased's estate must be reported to the relevant Master's Office and upon receipt of the executor's letter, the executor appointed by it may sign the necessary transport documents for transport. This process can take anything from a month to several months depending on the relevant Master's Office.

A distinction must be made between whether the contract has been entered into by the seller during his lifetime and whether it has been signed by the executor after the seller's death. If the purchase contract has been signed by the executor, the Act further requires that the relevant Master agrees to the sale of the property and all the deceased's heirs must consent in writing to the sale. This process can once again take anything from a month to several months.

It should be borne in mind that transfer duties will still be payable despite the fact that the seller has passed away. Buyers (and sellers) should note that the sale of real estate will affect his will. Our office will be happy to assist you with free advice and assistance in setting up or updating your will.
Should you require any further information, do not hesitate to contact Paul Delport or Jaco Fourie on 044 601 9900 or office@rgprok.co.za .

Protection against a unscrupulous buyer ...

Protection against a unscrupulous buyer and other useful tips when selling your property:

The sale of a property can be a very stressful event, as can be seen from our example below. If however you are prepared and understand the process, it can run smoothly and uneventful.

Suppose a seller has a valuable home and has been attempting to sell the house for quite some time, mainly due to poor economic conditions. Eventually, the Seller receives a private offer from Mr X. It is a cash transaction without any suspensive conditions. He does not want to pay a deposit, but provides a guarantee for the full purchase price. The Seller is very grateful and buys another property, based on this transaction. Meanwhile, Mr. X is sees another property he likes more and decides that the current transaction does not suit him anymore. 

He cancels the contract and his bank withdraws the guarantee. What is the seller's position now:
1.    Mr X had no basis to cancel the contract and therefore committed breach of contract.
2.    The seller has two options (depending on the contract of purchase): she may force Mr X to proceed with the contract OR she can "accept" his cancellation and sue him for damages.
3.    In both of the above-mentioned options, she must refer to the Court.
4.    The unfortunate reality of any court proceedings is that it takes long and is expensive, without any guarantees of success, even if the facts are in your favour and you have the best legal team.
5.    The main disadvantage is that the property is effectively OUT of the market once the Seller opts to force Mr X to proceed with the transaction.
6.    The Seller ultimately decides to "accept" the Buyer's breach of contract, to reinstate the property in the market so that she can at least try to sell her property and sue Mr.X for damages. 

How can a Seller prevent such a situation:
1.    ALWAYS insist that the Buyer pays a deposit of at least 10%.
2.    Make sure that the Buyer can afford the property and transportation costs.
3.    Keep strictly according to the deadlines as contained in the purchase agreement.
4.    Do EVERYTHING in writing and keep complete records of conversations and negotiations.

More tips to consider:
1.    Never allow a buyer to pressurize or bully you into accepting an offer with which you are not satisfied or of which you do not understand all the terms and conditions.
2.    Complete all documents in full and do not sign incomplete documents.
3.    Be very careful about any suspensive conditions in an offer. A higher offer is not necessarily a better offer.
4.    Remember that the SELLER chooses the transport attorney to act for and on her behalf. Choose someone who cares for your interests and who you trust. Engage 

Your Attorney BEFORE you accept the offer so that you have the correct advice and assistance from the start. Contact Jaco Fourie, Maryke Landman or Paul Delport at Rauch Gertenbach Attorneys for more information or for any property related matters, at 044 601 9900 or office@rgprok.co.za 

FREQUENTLY ASKED QUESTIONS ABOUT TRUSTS

Today Rauch Gertenbach will deal with frequently asked questions relating to Trusts:

1.            Are there different types of Trusts?

Yes, there are different types of trusts which consist of the following:

Testamentary Trusts also called Mortis Causa trusts.

Inter Vivos trusts which can be classified into Court Order -, Discretionary – and Charitable Trusts

2.            How do the different types of trusts come into existence?

A testamentary trust comes into existence at the death of the testator/testatrix and the contents of the trust deed is found in the will.

An Inter Vivos trust is created during the lifetime of the founder or by means of a court order. Inter vivos (Latin, between the living) is a legal term referring to a transfer or gift made during one's lifetime.

3.            What is the objective of trusts?

The main objective of a trust is to protect and maintain the assets in the trust to the benefit of the beneficiaries.  The assets of the trust are excluded from the estate of the founder and the beneficiaries.

4.            What does the term “beneficiary” entail?

There are two types of beneficiaries, namely Capital and Income Beneficiaries.

Capital beneficiaries are entitled to the Capital of the trust while Income beneficiaries are entitled to the Income generated in the trust.

They may be the same person/s.

5.            What is a “trustee” and what is his / her duty?

A trustee is a natural, or juristic person with a nominee, that is appointed to administer the trust and the assets of the trust.

The trustee has a duty to act with the necessary care, skill and diligence expected from someone in his/her position.  He/She is expected to manage and protect the assets of the trust to the benefit of the beneficiaries and if he/she fails to do so, he/she may be removed in terms of a court order or by the Master of the High Court.

The Master of the High Court now insists that an independent trustee be appointed.

6.            At which Master’s Office does one register your trust?

A trust gets registered at the Master’s Office that has jurisdiction over the area where the majority of the trust’s assets are located.  For example; if the majority of the trust’s assets are in Beaufort West, the trust will be registered at the Master’s Office in Cape Town.  Normally trusts are created with one asset, e.g R100 donation.

7.            What are the duties of the Master of the High Court in connection with trusts?

The Master of the High Court supervises the administration of trusts in his/her jurisdiction area.  The Master has the powers to appoint and remove trustees, to register and dissolve a trust, may also request the trustee(s) to supply him/her with the financial statements of the trust and may also launch investigations into the administration of the trust by the trustee(s).

8              Does a trust have separate legal personality?

No, a trust is not regarded as a legal person that has separate legal personality except in terms of the Income Tax Act.  The Trust is represented by the Trustees in their capacity as such.

9.            Must all trusts be registered for income tax?

Yes, it is required that all trusts are registered for income tax.

10.          Must trustees lodge a bond of security at the Master’s office?

No, the lodging of a bond of security is only necessary in exceptional cases and if not exempted in the Trust Deed.

For more information on trusts and how to put them to effective use, feel free to contact Danie Acker or Anél Cloete at 044 601 9900 or office@rgprok.co.za .

CAVEAT EMPTOR (“Let the buyer beware”)

When purchasing a home it is advisable to make sure that you understand the content of the deed of sale before you sign on the dotted line. Obtaining legal advice in this regard can save you a lot of time and money. Purchasers must make one hundred percent sure that they are happy and familiar with the condition of the property before signing the deed of sale. A property condition report can assist with this.

In our law the seller cannot be held liable for patent defects by virtue of the caveat emptor (“let the buyer beware”) principle which in essence means that the purchaser must make sure the property he is purchasing is in a good condition. The purchaser must accordingly carry out a thorough and reasonable inspection of the property.  Patent defects are defects easily seen with a reasonable examination of the property. Examples of patent defects will be cracked tiles, broken windows, cracks in the walls, and so forth. Should the purchaser wish that certain patent defects be repaired, it should be noted in the deed of sale.

Most residential properties are sold “voetstoots”, “as is”, the reason being that in terms of South African Law the seller is liable for latent defects unless specifically excluded in the deed of sale by virtue of the voetstoots clause. The voetstoots clause excludes the seller’s liability for any latent defects in the property.  Latent defects are defects which cannot be seen or discovered by the purchaser upon reasonable inspection of the property.   Examples of such defects include a leaking roof caused by serious structural problems, the absence of approved building plans, lack of an adequate water supply, to name a few.  

The seller can however still be held liable for latent defects, notwithstanding the voetstoots clause, if the purchaser can prove that on the date the seller signed the deed of sale, he had knowledge of the latent defect and did not disclose it and that the seller deliberately concealed it with the intention to defraud.

With the Consumer Protection Act (“CPA”) coming in to force there has been a lot of confusion as to whether the voetstoots clause may still be used in the selling of residential property. Where the seller is a “private seller” the CPA will not be applicable and voetstoots can still be used. However, where the seller is a property developer for example and sells immovable property in the ordinary course of his business, the CPA will apply and voetstoots will not be applicable. Interestingly, the CPA will still be applicable to the estate agent (should you make use of one) in his capacity as supplier of services in the ordinary course of his business as an estate agent, regardless of the seller’s status.

Unfortunately there is no hard and fast rule to determine who is responsible for what defects as each matter will depend on the facts at hand and the court’s interpretation thereof. 

The best advice to all parties concerned is to be open, honest and transparent. By disclosing all known defects in the property, sellers can rely on the protection of the voetstoots clause and purchasers can make an informed decision and even obtain an expert opinion for peace of mind.

Should you require any further information regarding any property transaction, feel free to contact Paul Delport, Maryke Landman or Jaco Fourie of Rauch Gertenbach Attorneys at 044 601 9900 or office@rgprok.co.za .
You can view our Property Cost Calculator by following the link below:
http://www.rgprok.co.za/property-calculator .