Tag Archives: Death

Family Law

WHO IS TO BLAME?

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A3BEmily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

If the question of negligence is hanging in the air then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and

(ii) would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any signs of warning.

Wrongfulness:

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the abovementioned case it was reiterated that ”the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures; confusion between the two elements is almost inevitable. It would obviously be reasonable to expect of the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

If the abovementioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.

[1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

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)

Wills and Esates

WHAT HAPPENS IF I DIE WITHOUT A WILL?

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Attorneys often emphasise the fact that you should have a will drawn up and revise it regularly in order to facilitate the bequeathing of your possessions after your death.  Many people still omit to do this. The problem is that, should a person die without leaving a valid will, in other words intestate, his/her estate will be administered and distributed according to the stipulations of the Intestate Succession Act  No 81 of 1987.

Below is a basic example of the effect an intestate death will have on the distribution of an estate. Should the composition of the beneficiaries of the deceased be more complex, the administering of the estate in terms of the Intestate Succession Act will also become more complicated.

Let us assume that person A dies and the value of his estate is R1.8 million. He is survived by his wife (B) and 2 children, of which one is of age and the other is a minor.

Scenario 1:

A and B is married out of community of property.

B inherits R125 000 or a child’s portion, whichever is the largest.

A child’s portion is calculated by dividing the total value of the estate by the spouse and number of children, in other words R1.8 million/3 = R600 000.

The spouse and children therefore inherits R600 000 each.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age.

Scenario 2:

A and B is married in community of property.

B inherits 50% of the estate due to the marriage in community of property.

B also inherits R125 000 or a child’s portion, whichever is the largest, with regard to the other half of the estate.

A child’s portion is calculated by dividing half of the total value of the estate by the spouse and number of children, in other words R900 000/3 = R300 000.

The spouse inherits R1.2 million and the children R300 000 each.

The inheritance of the minor will be paid to the Master’s Guardian’s Fund, as there is no will which determines that the minor heir’s inheritance should be placed in e.g. a Testamentary Trust, where the funds will be administrated on behalf of the minor until he/she becomes of age or reaches any other specified age. It is therefore clear that Intestate inheritance may result in an unpractical and often even impracticable division of assets.

The fact that the inheritance of the minor will be paid to the Master’s Guardian’s Fund may place the spouse in such a dilemma that she has to devise plans to finance the amount payable to the Master’s Guardian’s Fund to the benefit of the minor heir. Alternatively she could register a mortgage against an immovable property in favour of the Master’s Guardian’s Fund.

In case of death without a valid will there will of course be no person or institution appointed to support the surviving spouse in the administering of the estate. This should not usually present a huge obstacle, but the spouse should consider carefully which person or institution she appoints to assist her in this task. She should also negotiate the Executor’s fee with the relevant person or institution before the administering of the estate commences.

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)