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Copyright By @ Dataflux
An antenuptial contract (or “anc”) is a written contract entered into between 2 people who are planning on getting married. It is a legal document regulating the marital property regime between the two parties when the marriage is out of community of property.
Although signing an “anc” may not seem particularly romantic to consider before getting married, it can play an important role in protecting your estate during your marriage and at the dissolution of the marriage, whether by death or divorce.
By entering into an “anc”, you create two separate estates as opposed to a single joint estate when married in community of property – separating your assets from those of your spouse. This means that both parties cannot be sued in an action. Furthermore, parties have the freedom to enter into contracts without the prior written consent of their spouse.
Although signing an “anc” may not seem particularly romantic to consider before getting married, it can play an important role in protecting your estate during your marriage and at the dissolution of the marriage, whether by death or divorce.
An antenuptial contract must be concluded before the marriage. The duly signed antenuptial contract is then registered in the Deeds Office.
In terms of the Matrimonial Property Act, the following property regmes are recognised in South African Law:
This means marital property regimes specific to a religious or cultural belief system are not legally recognised in South African law.
It is possible to change your matrimonial property regime after you have concluded the marriage. This is known as a postnuptial contract. However, this is a complicated and expensive process whereby notice of your intention to register such postnuptial contract must be published so that notice is given to all creditors and interested parties. It is important to be able to show that you are acting in good faith and not with the intention to defraud your creditors.
Having a will gives you the power to control exactly who can inherit from your estate. If you do not have a will, your estate will be distributed according to the Rules of Intestate Succession as set out in the Intestate Succession Act, Act 81 of 1987.
Having a will gives you the power to control exactly who can inherit from your estate. If you do not have a will, your estate will be distributed according to the Rules of Intestate Succession as set out in the Intestate Succession Act, Act 81 of 1987.
Freedom of testation allows you to bequeath specified assets in your estate to anyone, including people, charities etc. However, a witness to the signing of a will is not permitted to inherit in terms of the will.
Your will may not contain any provisions that are:
Legislation and the common law may also limit, to some extent, what you can do with your estate. For instance, minor children will always have a common law right to claim maintenance. Pension funds, trust property and spousal maintenance are controlled by legislation, which may limit how these assets are dealt with. Anything contained in a will which contradicts the law in respect of the above stated, will be disallowed.
You may draft a new will or amend your will at any point, and as many times as you wish before your death. It is therefore a good idea to date your wills to determine which is your most recent will to be given effect to. If you only want to amend your will, you need to draft and attach a codicil to the original will.
Drafting a new will / updating your will is especially important after events such as marriage, divorce or the birth of a child.
You have 3 months after you get divorced to change your will and exclude your former spouse from inheriting from your estate. If you do not change your will during this period and subsequently pass away, it will be assumed that you intended for your ex-spouse to inherit in accordance with your will.
If you have doubts as to the validity of a will, it is possible to challenge it. Examples of such situations would be if a person was of unsound mind when they drafted it or that they were under undue influence. There is a difficult onus of proof in the cases and would require expert evidence to support your case.
Most attorneys will draft a simple will free of charge on condition that you appoint them as executor of your estate. However, this varies from firm to firm. The fee charged is usually dependent on the complexity of the will.
Your ‘estate’ is comprised of all your assets and liabilities. Your assets include all of your personal possessions, immovable and movable property, money and any debts owed to your estate. The liabilities comprise all of the debts you owe to your creditors.
The deceased’s estate must be reported to the Master of the High Court within 14 days of the date of death. This is done by lodging certain documents with the Master. The duty of the executor is to administer the deceased estate, including determining whether the estate is solvent (and able to pay off its debts) or insolent (and unable to pay off all its debts). The executor is also tasked with recovering all amounts owed to the estate by various debtors.
The deceased’s estate must be reported to the Master of the High Court within 14 days of the date of death. This is done by lodging certain documents with the Master. The duty of the executor is to administer the deceased estate, including determining whether the estate is solvent (and able to pay off its debts) or insolent (and unable to pay off all its debts). The executor is also tasked with recovering all amounts owed to the estate by various debtors.
Anyone may be appointed as an executor. However, due to the specialised function of the executor and often complicated nature of the process of winding up the estate, it is best left to a professional, such as an attorney, who is familiar with the process and procedure involved. Often people will appoint a family member as the executor. This is often fraught with difficulties as there can be a great deal of tension.
If your estate is worth more than R250 000, Letter of Executorship need to be issued to the executor by the High Court. All the rules laid out in the Administration of Estates Act must then be followed.
If your estate is worth less than R250 000, it is unnecessary to have an executor appointed and the Master will appoint a representative by issuing Letters of Authority in terms of Section 18(3), allowing the representative to administer the estate without having to comply with he complex and more expensive procedures laid out in the Act.
The liquidation and distribution account, or “L&D”, is the financial or accounting aspect of administering an estate. It is a vital part of the process and needs to be done with extreme care. It is one of the reasons that it is highly recommended that the administration of deceased estates is left to professionals. Liquidation and distribution accounts reflect all of the assets and liabilities in the deceased’s estate and is used to determine whether the estate is solvent, to calculate the estate duty, if any and the manner in which the estate is going to be distributed.
Which court will have jurisdiction to hear a matter is determined by the geographical and monetary jurisdiction of each matter.
Geographical jurisdiction refers to the area/location of the court that may hear the matter. It is determined by the place in which the defendant or respondent lives or works as well as if the cause of action arose entirely within that court’s jurisdiction.
Monetary jurisdiction is concerned with the amount of money involved in the matter and can determine what court may hear the matter. The monetary jurisdiction for the courts is as follows:
It is also important to note that there are some specialised courts that exist – e.g. maintenance court, equality court, labour courts etc. – and the jurisdiction of these courts are determined by the nature of the matter and not by monetary or geographical jurisdiction.
The Small Claims Court is a district court for individuals to sue other people or companies. It is limited to claims of less than R15 000. Parties may not have legal representation and all parties have to represent themselves. No appeal is permitted in respect of a judgment handed down in a Small Claims Court.
A summons is a legal document which follows a specific format and is used to notify a person that legal action is being taken against them. The summons is issued by the competent court and is served by the Sheriff of the Court. The summons sets out the case the defendant is required to meet as well as setting out the amount, where applicable, being claimed by the plaintiff
Actions are initiated by summons being served, by the Sheriff, on the Defendant. They are usually relief upon in matters where a factual dispute may exist, which requires the need for oral evidence.
Prescription is the process by which a legal claim prescribes if proceedings are not instituted within 3 years from the date of the cause of action or when the party became aware of the cause of action. If a claim has prescribed, you can no longer sue the other party/parties.
When someone institutes a claim against you – whether that be via a summons or a notice of motion – you have a certain period of time within which you need to enter an appearance to defend. Failure to deliver a notice of intention to defend will mean that judgment can be granted against you due to your default.
Similarly, if one enters an appearance to defend but fails to serve a plea within the time limits prescribed, the other party may serve a notice of bar. This provides one with notice to serve the plea within 5 days, failing which one is barred and default judgment can be granted.
If someone has obtained a default judgment against you, you may approach an attorney in order for them to assist you in applying to have the default judgment rescinded. In the event that you are successful in having the default judgment rescinded, you are taken to the point in the legal proceedings just prior to the default judgment being granted.
In the rescission application it is imperative to explain to the court the reasons for your default and set out your defence in the main action.
A warrant of execution can apply to both movable and immovable property. It authorises the Sheriff of the Court to attach and remove a judgment debtor’s assets and sell them on public auction. The proceeds from the sale in execution is used to satisfy the sheriff’s fees, the legal costs and the balance is paid to the judgment creditor.
An emoluments attachment order is a court order whereby the salary is attached to satisfy a judgment. The debtor’s employer (paymaster) deducts the amount ordered by the Magistrate’s Court from your salary every month and pays it to the judgment creditor.
In most circumstances, costs follow the successful party. This means that the losing party will be liable for both successful party’s legal fees, usually on a party and party scale. However, costs can be awarded on 3 different scales: party and party, attorney-and-client, and attorney-and-own client.
In Action proceedings, the person(s) instituting the legal proceedings is known as the Plaintiff whilst those against whom the proceedings are instituted are the Defendant(s). In Application proceedings, the person instituting the proceedings is known as the Applicant whilst the other party is the Respondent.
If you have outstanding debts due to you, the first step would be to have your attorney send a letter of demand, requesting them to pay you the outstanding amount before a specific date. This is known as putting them to terms. If they fail to pay the outstanding amount, you may then institute action against them by serving a summons for the outstanding capital amount, interest and costs.
In addition to the normal legal fees incurred, an attorney also charges collection commission. It is important to remember that if you obtain judgment against the debtor, they could be held liable for your legal fees.
It isn’t uncommon that debtors don’t have the money to pay their debt off immediately. You could enter into an agreement by which they pay the debt off in instalments. If you have obtained judgment, you can also utilise execution against property or an Emoluments Attachment Order. Read the FAQ under Civil Litigation for more information on that.
