COMMON QUESTIONS ABOUT A WILL

a4_aLife is unpredictable, if something were to happen to you, do you know where your assets will go? Having a Will is one of the most important documents you could own, especially if you have children. Below are important reasons why this should be one of your top priorities.

Why should I have a Will?

A Will enables you to name your heirs. Should you die without a Will (intestate) your assets will be divided according to the Intestate Succession Act. That may benefit people whom you did not wish to name as your heirs.

Who is allowed to sign your Will as witness?

Your will must be signed in the presence of two witnesses, who also sign in each other’s presence. Only persons older than 14 years are qualified to sign as witnesses. 

What is the cost of Executor’s fees?

The maximum remuneration payable to an executor is determined by law and is currently fixed at 3.5% of the total gross estate value. Executor’s fees may, however, be negotiated with the person who has been appointed as executor of your Will. 

How often should I revise my Will?

It is recommended that Wills be revised at least every 2 years. It is also important to review your Will after events like marriage, birth, divorce or the purchase of property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

LET YOUR CHILD STUDY LAW

a3_aOn 1 August 2013 PPS released the latest results of the South African Legal Services Survey.  Of the legal professionals, including 423 attorneys, who participated in the survey, only 52% had confidence in the efficiency of the court and judicial administrative system.

Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, absence of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? This is because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. The law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. Unfortunately, the low entry-level requirements of the LLB degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. The truth is that the legal profession actually makes a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blonde, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room, as their office space is cluttered with towers of files!

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome for the situation for each of your clients. Not all clients have unlimited resources and thus you have to work within the constraints of their financial ability. Attorneys mostly do not charge fees for all of the effort and time spent.

The one thing that each branch of the legal profession has in common, is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of a sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same; and while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

That is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

WHEN LIFE HAPPENS – WHO WILL LOOK AFTER YOUR AFFAIRS?

a2_aCuratorship is the power given by authority of law, to one or more persons, to administer the property of an individual who is unable to take care of his/her own estate and affairs. Curatorship is intended to protect the person and the person’s property.

In terms of Rule 57 of the High Court Rules any person may apply to the High Court for an order declaring another person (“the patient”) to be of unsound mind and as such incapable of managing his/her affairs.

This type of High Court application is usually made by a family member of the patient. The Notice of Motion must state the grounds upon which the applicant claims locus standi, in other words, what his/her interest in the matter is and why the court should entertain the application. The court is normally requested to do three things:

  1. To declare the patient of unsound mind and incapable of managing his/her affairs;
  2. To appoint a curator ad litem; and
  3. To appoint a curator bonis and/or curator personae.

Furthermore the applicant must state inter alia the following in the application:

  1. The grounds upon which locus standi is claimed by the applicant;
  2. Why the court has jurisdiction to hear the matter;
  3. Information regarding the patient’s age, sex, full particulars of his/her means and general state of the patient’s physical health;
  4. The nature and duration of the relationship and association between the applicant and the patient;
  5. Facts and circumstances serving to show that the patient is of unsound mind and incapable of managing his/her affairs;
  6. The names, occupations and addresses of the persons suggested as curator ad litem and curator bonis or personae.

After hearing the application the court may appoint a curator ad litem. The curator ad litem is someone who conducts a court case or court proceedings on behalf of another. The most important function of the curator ad litem is to manage the patient’s interests in court and acts on the patient’s behalf as the patient is unable to do so because of mental illness. Upon the appointment the curator ad litem must without delay interview the patient and he/she should explain the nature of the application and the appointment to the patient. The curator then draws up a report. Such report is then submitted to the registrar of the court and the Master of the High Court.

After receipt of the report by the Master, the applicant may place the matter on the court roll and request the court for an order that the patient be declared incapable of managing his/her affairs and that the suggested person be appointed as curators bonis and personae. The curator bonis must manage the estate of the patient in accordance with the court order, subject to certain directions of the Master.

Compiled by: Annerine du Plessis

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

GETTING TO KNOW OUR DIRECTOR, DAVID

a1_aI sat down with David Artlett, our firm’s only male attorney, in order to delve a little deeper into who David is and what makes him tick.

In addition to being a conveyancer and Notary, David is one of the directors of Schnetler’s Inc. David boasts more than 4 decades of experience in the area of property law and, more particularly, in conveyancing. It is safe to say that David is somewhat of an authority in this field of law!

Here is what David had to say during our sit-down:

Where did you grow up and attend school, and thereafter university?

I am a Southern Suburbs boy, as for most of my life I lived in our family home in Newlands. I attended SACS for my entire school career, and then proceeded to study law at UCT. At the time, the Law Faculty was in Cape Town and not at the main campus.

What do you enjoy doing when you aren’t at the office?

I am a sports enthusiast – I’m a particularly keen rugby and cricket fan. I played both sports at school and at club level. When I grew too old to participate actively, I took up road running to keep myself fit. From small beginnings, I went on to complete 10 Two Oceans Marathons.

Why did you decide to become an Attorney, and thereafter, a Conveyancer and Notary?

When I left school, I had no idea what career I wished to follow. Courtesy of the tax-pages, I had a ‘gap year’ completing my compulsory military service. During the three months between matriculating and commencing my service, I worked for a Building Society (they are all now banks). As luck would have it, I was put into the legal department and had a lot of contact with the society’s lawyers, and decided that this was the career for me.

How long have you been practising in the legal world for?

I was admitted as an Attorney and Conveyancer at the beginning of 1974 – so that makes it 42 years! A year or two after my admission, I also qualified as a Notary Public.

What about your job do you enjoy the most?

I think that the word ‘practice’ is very appropriate, because that is what we are doing. You never stop learning and coming across something new or different in this game. If you think you know it all, just wait and see what tomorrow brings.

Is there any other profession that you think would have been interesting to pursue?

I could have been an Accountant as I have the required analytical mind; but what I really dream about, is being the Sports Correspondent for a major newspaper. Imagine being present at, and watching all those major cup-finals – and being paid for it! As I said, dream on.

What area of the law is your favourite and the most interesting to you?

I must say conveyancing, as most of my work is in that field. As I mentioned previously, you can never say you know it all. Something new will always pop up and keep you on your toes. That’s what keeps me going.

One thing that can be gathered from my interview with David is that if you are looking to sell a property, Schnetler’s is definitely the firm that you want to handle your transfer!

Next month I will be sitting down with Annerine du Plessis, another attorney at Schnetler’s. Be sure to read our November newsletter to find out a little about one of our adept litigators!

Compiled by: Laura Ames

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)