Legally Speaking

Thanks to National Wills Week which took place during the week of 12 – 16 Sept 2016, we are all reminded that having an up-to-date will is considered one of the most crucial things we can do to protect our assets, spouse and children when we are no longer around to do so. Besides the protection of assets and loved ones, a will ensures that once we have passed on, your estate is handled in the manner we would like it to be and our final wishes are granted.

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04 Sep 2014
  • Mike Williams

    Written by Mike Williams

    Mike specialises in Commercial Law and Litigation, Debt Recoveries, Labour & Employment Law, Alternative Dispute Resolutions, Family Law, Trusts, Wills & Estate Planning, Liquidations and Liquor Licence applications.

There are two types of Trusts which are dependant on when and how they are established.

A Will Trust

This type of Trust is established in terms of your Last Will and Testament and comes into effect after your death upon the winding up of your Estate by your Executor.  Generally speaking, the object of a Will Trust is to provide for minor children until they attain an age where you believe they are able to responsibly manage their inheritance.

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04 Sep 2014

Marriage is a wonderful institution that brings security and happiness to many couples and families. Most people, however, are not aware of the consequences a marriage can have on one’s assets, responsibilities and duties as a spouse.

This aspect of the law is governed by both the common law, and the Matrimonial Property Act, 88 of 1984 (the MPA) and provides for three possible matrimonial property regimes:

  • In community of profit and loss
  • Out of community of profit and loss, with the exclusion of the accrual system
  • Out of community of profit and loss including the accrual system.

 

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Uh-oh. There is someone at your door, with documents in their hand and a grim look on their face.

“Are you Jane White, and do you live here?” It’s the Sheriff – you have been served!

It is never a pleasant experience being served with a summons; it usually means that you’re in trouble right? Well, do not panic, as there is a simple and easy way to get through the ordeal.

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It is prudent to take measures to organise your estate, whilst you are alive, in order to ensure that the person appointed to administer your estate after your death may do so effectively. This person is referred to as an executor/executrix and such person has various duties and responsibilities which are codified in law.

The starting point in the organisation of your estate is execution of a valid will. Without a valid will in place, your estate will devolve according to the Law of Intestate Succession. This does not mean that your assets (and liabilities) will be distributed randomly; rather, they will devolve upon persons such as your spouse, descendants and ascendants in a manner regulated by law.

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A suretyship is a frequently used risk-mitigating mechanism and involves three parties – the creditor, the principal debtor, and the surety. It is important to understand this concept as most people will be party to a suretyship in some or other capacity in their lifetime. It is a contract between the creditor and the surety, in his personal capacity, in terms of which the surety undertakes to fulfil the obligations due to the creditor by the principal debtor, in the event that the principal debtor fails in whole or in part to fulfil the obligations himself. Essentially, the surety agrees to step into the principal debtor’s shoes if that debtor can no longer fill those shoes financially, so to speak, vis-à-vis his creditor. A suretyship is a contract and the normal requirements for concluding a valid contract must be complied with.

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  • The Rental Housing Tribunal (RHT) is an independent body appointed by the Provincial Minister of Housing to promote stability in the rental housing sector and to resolve disputes between landlords and tenants of residential dwellings with the least amount of inconvenience and cost to the disputants. It aims to offer a speedy process of justice to resolving disputes that would otherwise remain clogged in the legal system for months, if not years.
  • Each tribunal office consists of three to five members that are appointed to serve a term of three years and, if appropriate, can be extended for a further three years. The members include attorneys, advocates, property professionals and experts in consumer matters related to rental housing elected by the Minister of Housing. The tribunal also has a staff component that includes inspectors, technical advisors and administrative support staff.

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In both residential and commercial properties, when a tenant leases property the landlord is obliged to give undisturbed, vacant possession and occupation of the premises. In turn, the tenant is obliged to pay his/her rentals timeously. The relationship between the parties is governed by a lease agreement which can either be in writing or oral, but it is highly recommend that such lease agreement should be in writing.

Regarding commercial properties in the event that the tenant does not honour the agreement (a typical example is non-payment of rental) in terms of the common law the landlord can apply for a Warrant of Ejectment and if granted by the Court, the Sheriff would evict the tenant.

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