How to draft a legally valid and enforceable will

Many people take it upon themselves to draft their own will and although there is nothing wrong with it, the risk exist that they then fail to comply with the formalities prescribed by the Wills Act 7 of 1953, which could in return render the will invalid and result in the estate being administered in terms of the Intestate Succession Act 81 of 1987.

So what exactly is a will? A will is a written document in which a person, who is older than 16 years and mentally capable, voluntarily sets out his instructions as to how his estate should devolve upon his death. Taking this into consideration it is clear that a will must be in writing and must be made freely.

The above is however not the only requirements. In fact, the Wills Act prescribes a number of formalities with which a will must comply in order to be valid and these formalities are as follows:

  1. the will is to be signed at the end thereof (directly beneath the attestation clause), by the testator or by some other person in his presence and by his directions;
  2. the will is to be signed in the presence of two or more competent witnesses who are older than 14 years and have no interest in the will, i.e. are not heirs in terms of the will;
  3. the witnesses are to attest and sign the will in the presence of the testator and of each other. (The witnesses do not have to know the content of the will, but merely have to acknowledge that they have seen the testator sign the will);
  4. if the will consists of more than one page, each page other than the last page must also be signed by the testator or by such other person as referred to in paragraph 1 above, anywhere on the page;
  5. if the will is signed by the testator by making a mark or by some other person in the presence and by the direction of the testator a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed is the will of the testator.

 

Furthermore the testator should also nominate an executor (i.e. person who will be responsible for the administration of the estate), appoint heirs and legal guardians for minor children, in the will.

 

The formalities and guidelines set out above are only a few aspects that have to be taken into account when drafting a will. We therefore recommend that one rather obtains professional estate planning advice when considering drafting a will.

 

Article written by

Landie Saaiman
landie@dyason.co.za

Have Fixed Term Contracts Been Renewed To An Indefinite Period By The Inclusion Of Section 198b To The Labour Relations Act?

On the 15th of January 2015 the Labour Relations Amendment Act came into operation, which gave rise to the infamous Section 198B.

Dreadful in the eyes of employers and welcomed by employees, Section 198B is here to stay as it in essence gives effect to the legislator’s intentions. Fixed term contracts have formed part of the Labour Relations Act (LRA) since its enactment in 1995 and therefore are not a new concept in the South African labour law. What is new is the application thereof.

Prior to the Amendment Act, failure to renew an employee’s fixed term contract could have constituted dismissal and in such instances provided some security to the employee. The effects of Section 198B is that the onus as well as the burden of proof have shifted to the employer, as the employer may only employ an employee on a fixed term contract or successive fixed term contract for longer than three months if: the nature of the of the work for which the employee is being employed is of a limited or definite nature or the employer can demonstrate any other justifiable reason for fixing the term of the contract. Therefore an employer will be required to prove that there was a justifiable reason for fixing the term of the contract.

The effect of the above is that, should an employer employ an employee or renew an employee’s employment in terms of a fixed term contract without a justifiable reason such an employee will be deemed to have been employed for an indefinite duration. Section 198B(6)(a) and (b) supports this notion in that employment on such terms must be in writing and state the reasons for the fixing of the term of the contract as contemplated in subsection (3) as mentioned above.

Unfortunately or fortunately, depending on which side you are on, the legislator has limited the application of Section 198B to employees earning less than R205 433.30 per annum, employees employed by an employer with less than 10 employees or has less than 50 employees and has been in operation for less than two years or has been formed by the division or dissolution for any reason from an existing business. In the instances where an employee has been excluded, and employed in terms of a fixed term contract, the status quo remains, meaning an employer’s failure to renew or willingness to renew a fixed term contract on less favourable terms could constitute dismissal should the employee be under reasonable expectations that the fixed term contract would have been renewed.

As if the Amendment Act has not placed enough stress on employers already, employers are expected to conclude such fixed term contracts with current fixed term employees within three months from the 15th of January 2015, as it is contemplated in Section 198B (8) (b) that the application of subsection (a) has been postponed for three months after the date of commencement. Failure could result in labour disputes relating to possible dismissal of an employee employed for an indefinite purpose, which we all know as a permanent employee.

With all this having been said it is the duty of the Government to protect the vulnerable persons in society and through this Amendment Act the legislator appears to be alive to that responsibility in light of the fragile labour market in our country.

Article written by

Albert Arnold
albert@dyason.co.za