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Q & A
Q I am a retired widower and have met a widow whom I wish to marry. We both have assets that we have built up separately and we both have children from our first marriages.
I have been advised that my prospective wife and I should enter into an Antenuptial Contract excluding the accrual. Is this sound advice?
In addition, both my prospective wife and I wish to draw up Wills which will make provision for each other, but also ensure that our children from our first marriages ultimately inherit. Is this possible?
Answer
I respond to your queries as follows :-
1. I agree with the advice you have received in respect of an Antenuptial Contract. It is advisable in your particular circumstances to keep your assets separate on the basis that you both have assets you have already accumulated over a number of years. In addition, you both have children from a previous marriage whom you wish to receive your assets ultimately.
2. There are various ways for you and your prospective wife to achieve a structure in your Wills which makes provision for each other but which also ensures that your children from your first marriages ultimately inherit.
One manner of achieving this would be to create a testamentary trust in your Wills for the benefit of the survivor, for the duration of the survivor's lifetime/alternatively until his/her re-marriage, whereafter the trust would terminate and your children would inherit your estates.
It would be necessary to explore your particular circumstances more carefully to be able to advise you comprehensively in this regard.
I trust that my response has been of assistance to you.
Q My spouse and I are in the process of getting divorced.Does a divorce have any effect on our respective Wills?
A In your current situation, if you have current Wills in terms of which you each leave your estates to each other, and should either of you die without having changed your Wills and prior to the divorce being finalized, the provisions of your Will will be upheld and the survivor will inherit the predeceased spouse’s estate, notwithstanding the fact that you may be estranged from each other.
The Wills Act provides an individual with three months from the decree of divorce being granted to update his/her Will.If an individual dies within such three month period, the individual’s Will shall be implemented as if his/her previous spouse had died before him/her, unless it appeared from the Will that the individual intended to benefit his/her previous spouse notwithstanding the divorce.
If an individual fails to update his/her Will within three months from the decree of divorce being granted, it is presumed that the individual intended his/her previous spouse to inherit and the Will shall be implemented as it is written.
You are accordingly well advised to consider your Wills if you are undergoing a divorce to ensure that your Will is in line with your intention as at the date that you undergo the divorce.
In addition, it is prudent to consider the beneficiaries you have nominated in respect of your insurance policies to ascertain whether it is necessary to update your beneficiaries.
If you have children, and in particular minor children, it is particularly important to update your Will in the event of a divorce, as you may wish to appoint someone other than your soon-to-be ex-spouse to administer monies on behalf of your children, and to appoint an alternative guardian and/or custodian to your children in the event of your ex-spouse predeceasing you prior to your children becoming majors.
A. QUESTION – 6 MARCH 2009
Please could I have some advice. My brother passed away on 29th November. He had indicated to me in an e-mail in January 2008 that he had nominated me as the beneficiary to his Sanlam Retirement Annuity. As it is not part of the estate I went to Sanlam and lodged a claim against the Policy. To my horror I discovered that he hadn’t updated the details as he had told me.
The previous nominee was a friend of his who worked with him at Telkom. They both resigned and took their pensions, bought a property together which has two houses on it and opened a day care centre on the property. When he passed away he left the house to his friends grand daughter, the property is valued a R2 million. I then had to draw up an affidavit with proof that I was dependant on him as I was his only sister and he never married. I got divorced in 999 and have 3 sons and my brother took us under his wing and basically supported us financially where we needed it. Sanlams response was that as there was no signature on the e-mail they couldn’t use it as proof. I questioned that as one can use an e-mail as evidence and it was clearly his wish that I have the policy. They have now decided that I will get half of the money which is only in the region of R35,000. I am still not happy and want to contest this further.
This friend has a husband, her pension, the day care centre which brings is R45,000 monthly as well as my brothers house. She could get R60,000/year if she rented it out. I just feel that she is not in need of the money and my brother would be horrified at the thought o her wanting it. They had discussed the issue and she told me that she made it clear to my brother that she wanted nothing from him when he died. Now that he is gone she has changed her mind.
What is your opinion or knowledge as far as and RA goes? How can I strengthen my case??
ANSWER
RE: YOUR QUERY
I confirm that notwithstanding the nomination of a beneficiary in retirement annuity policies, the Trustees of a retirement annuity fund have a discretion as to who should benefit from the policy.
In exercising their discretion, the Trustees consider who the deceased’s dependents were and the extent of each dependent’s dependency upon the deceased.
The facts of each case are obviously specific to that matter and you would want to know that the facts of your particular case have been properly considered.
There is an adjudicator in the pension fund/retirement annuity industry to whom you may direct your complaint/concerns and they can then investigate the decision of the Trustees of the Fund.
The adjudicator’s contact details are as follows :-
Pension Fund Adjudicator : Mamodupi Mohlal
P O Box 23005
Claremont
7735
Tel : 021 – 674 0209
Fax : 021 – 674 0185
e-mail:enquiries@pfa.org.za
I wish you all the best in resolving the matter.
Yours sincerely
MARGARET McCULLOUGH
J LESLIE SMITH & COMPANY
B. QUESTION – 9 MARCH 2009
My husband and I have our separate wills lodged with our bank and the bank has been appointed as the executors of these wills. We are now 89 and 83 years old. We understand that the executors’ fees can be quite high and want to know if we each could act as the executor of each other’s will. My husband says he read one of you senior’s columns a while bank in which you explained what the procedure is for acting as an executor. Is it possible for you to provide us with a copy of that particular column? We would also appreciate very much if you could give us any advice regarding our position.
ANSWER
RE: YOUR ESTATE QUERY
Thank you for your e-mail.
I confirm that you and your husband may appoint each other as Executors in your respective Wills. It is advisable to make provisions for an alternative Executor in the event of your simultaneous deaths, or in the event of you both dying within a short period of each other.
Where your estates have a value of more than R125,000.00, the Master will require you to approach a professional to assist you in winding up the Estate, unless you are able to satisfy the Master that you have had experience in administering estates.
Depending upon the complexity of the Estate, your Executor may be amenable to negotiating the standard Executor’s remuneration. Alternatively, if you appoint each other as Executor in your Wills, the survivor of you will be able to discuss the fee that the professional will charge, in the event that you approach a professional to assist you in the administration process.
I trust that I have responded to your query satisfactorily.
Yours sincerely
MARGARET McCULLOUGH
J LESLIE SMITH & COMPANY
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