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Month: March 2017

GROUNDS TO CHALLENGE A WILL

GROUNDS TO CHALLENGE A WILL

My dad married again and his children with his other wife inherited, but not us. On what grounds can we challenge his will?

In order to make a valid will, the testator must have the necessary testamentary capacity. A will is presumed to be valid until its invalidity has been established and the onus is on the person alleging the invalidity, to prove the allegation.

No person in terms of the South African law has the right to inherit. However the freedom of a testator to dispose his estate as he wishes is not absolute, since the law can restrain testators in their exercise of their testamentary freedom.

Grounds to challenge a will:

Failure to comply with the formalities:

Section 2 of the Wills Act 7 of 1953 (“the Act”) determines the formalities for a valid will. However in terms of section 2(3) of the Act, if a court is satisfied that a document or an amendment, drafted or executed by a person who has since died, was intended to be that person’s will or an amendment thereto, the court shall order the Master of the High Court to accept that document as his will, despite it not complying with the prescribed formalities.

Therefore courts have a general discretion to condone non-compliance with the prescribed formalities. In most case law courts use a strict application/approach of section 2(3) of the Act and always considers the surrounding circumstances to determine whether the testator intended the document to be his will.

Forgery:

A will can be challenged on the ground that it was forged. In other words the will looks genuine and complies with all the formalities, but the testator’s signature is forged. In this instance evidence such as statements made by the testator, the testator’s instructions and statements of testamentary intention are admissible. In Molefi v Nhlapo and Others the court allowed evidence of a handwriting expert and his evidence helped to determine that the will was a forgery.

Another instance when a will can be challenged on the ground of forgery, would be when a person is disqualified to inherit or benefit from the will. Examples include:

  1. A person depriving his siblings of their share according to the estate;
  2. A person contributed or caused the death of the testator and;
  3. A person and his spouse, who is a witness to a will, signs on behalf of the testator or who writes out the will in his handwriting. However section 4A(2) of the Act states that where a court is satisfied that the person or his spouse did not defraud or unduly influence the testator in the making of his will, they would be able to receive a benefit in terms of the will.

Testamentary capacity:

Section 4 of the Act states that any person who is sixteen years and older, and has the mental capacity to understand what he is doing, can execute a will. The problematic requirement is whether the testator had sufficient mental capacity to understand and appreciate his testamentary act. In Thirion v Die Meester the court held that the consumption of alcohol is not a sufficient ground to invalidate the will. In Essop v Mustapha and Essop NNO and Others the court held that the decisive moment for establishing the competence of a testator is the time when the will was made and not when instructions were given to draft a will.

Undue influence:

Every testator has testamentary freedom and discretion to divide his estate as he wishes. In the case where a testator’s testamentary freedom and discretion was infringed or impaired, his will is declared invalid. Courts have to take into consideration certain principle circumstances, like the testator’s mental capacity; the testator’s ability to resist influence; the relationship between the testator and the person responsible for the alleged influence and; the period between the drafting of the will and the death of the testator. Conduct similar to duress or fraud is also required. Therefore the key element to contest a will on the ground of undue influence is displacement of volition. However if after the execution of a will a period of time has lapsed, during which the testator could have changed his will and he did not, it may be concluded that his will was not made against his wishes.

If in doubt whether you can contest a wil, contact your legal advisor for clarification.

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)

CANCELLING A LEASE AGREEMENT EARLY

CANCELLING A LEASE AGREEMENT EARLY

If you want to end your contract early, this can only be done “in situations where the Consumer Protection Act or Rental Housing Act apply” – or if there’s a clause in the contract that allows for early cancellation, or if both parties agree to it.

If, on the other hand, one of the parties wants to cancel because the other is in breach of the contract, then certain notice periods come into effect – the first of which being, of course, that the aggrieved party is required to “give written notice for the breach to be remedied. Failure to remedy the breach in the stipulated time period, will entitle the innocent party to cancel the lease and (where relevant) claim damages suffered from the offending party.”

A tenant has the RIGHT to cancel a lease agreement, be it in the 1st month, 4th month or second-to-last month of the lease agreement. He cannot be ‘punished’ for doing this and the cancellation does not constitute a breach of the lease agreement.

What must an agent do if a tenant decides to cancel?

1. Obtain the cancellation in writing from the tenant.
2. Ensure the cancellation gives the requisite 20 business days’ notice.
3. Charge rental until the end of the 20 business days (even if this is not a full month’s rental).
4. Log on to TPN and end the lease as at the end of the 20 business days.
5. Keep in mind the lease now ends as at the end of that 20 business days.
6. Should the tenant remains in the premises a new lease MUST be signed as once cancelled, a lease cannot be revived at law. If you fail to do this, you essentially have no long-term lease in place.
7. Begin advertising the property immediately- the onus is on the agent/landlord to find a replacement.
8. Keep all invoices from the advertising as this is one of the costs you may pass along to the tenant in terms of a ‘reasonable cancellation penalty’.


What can an agent charge the tenant that cancels early?

The idea behind this reasonable cancellation penalty is not to penalise the tenant, but to recover any actual loss suffered by the landlord as a result of the cancellation. The following cost could be applicable:

  • Credit check costs for any prospective replacement tenants (even those who are not accepted);
  • Advertising costs (only the actual amounts on the invoices);
  • Rental – the exact number of days that the unit remains vacant after the tenant vacates.

It is important to keep in mind that all calculations of the penalty can only be made once a replacement tenant has been found. It must also be kept in mind that where a tenant cancels, for example, in month 10 or 11 of a 12-month lease, you cannot charge the tenant the full remainder of the lease as this would negate the cancellation. The principles behind cancellation penalties lie in our law of undue enrichment. A landlord/agent cannot make a financial gain or benefit off of a tenant’s cancellation.

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)

References:

http://www.privateproperty.co.za/advice/property/articles/how-to-cancel-a-residential-lease/3315

http://www.melcoproperties.co.za/template/ArticleDisplay.vm/articleid/2243

WHO IS LIABLE AFTER A SPORTS INJURY?

WHO IS LIABLE AFTER A SPORTS INJURY?

Contact sports often lead to the players being seriously injured. Can anyone be held liable for these injuries? or are the players taking an inherent risk when participating in these sports? Case law has established some important principles when dealing with this issue.

Is participation in dangerous sport consent?

The issue was considered in the 2012 Supreme Court of Appeal-case, Roux v Hattingh. In this case the appellant seriously injured the respondent while performing an illegal and dangerous scrumming manoeuvre, referred to as a jack-knife.

Appeal Court Judge Plasket ruled in favour of the respondent. It was held that the Appellant purposefully injured the Respondent and his actions were found to be wrongful. The legal principle of Volenti Non Fit Iniuria, or the consent to potential damage, would be sufficient to protect a person that injures another in a sporting match, but only in the usual and reasonable course of the specific game.

First, the “jack-knife” manoeuvre executed by Alex was in contravention of the rules of the game. It was also contrary to the spirit and conventions of the game. Secondly, because it had a code name, the manoeuvre must have been pre-planned and it was consequently also executed deliberately. Thirdly, while one of its objects may have been to gain an advantage in the scrum, and another may have been to intimidate the opposition, particularly Ryan, it was also extremely dangerous.[1]

Plasket AJ further states:

“Because this conduct amounted to such a serious violation of the rules; it is not normally associated with the game of rugby and is extremely dangerous. It would not have constituted conduct which rugby players would accept as part and parcel of the normal risks.”[2]

It is clear from the AJ Plasket’s judgment that the main issue to be considered when evaluating whether a person should be held liable for an injury caused in a contact sport, should be whether the conduct should be considered normal for the specific game being played.

Appeal Judge Brand, in a concurring judgment expanded the issue, saying:

“I believe that conduct which constitutes a flagrant contravention of the rules of rugby and which is aimed at causing serious injury or which is accompanied by full awareness that serious injury may ensue, will be regarded as wrongful and hence attract legal liability for the resulting harm”.[3]

Breaking the rules of the game

It is stated that when an action is of such a nature that it is a blatant breach of the laws of a game, the player reconciles himself with the contravention of such law and the possible consequences, and the player should be held liable. It is important that the meaning behind this passage is not that any injury that occurs as a result of a broken rule of the game, should be punished by law, but only in cases where the infringement is serious and obvious enough to warrant such action.

This would place an overly onerous burden on a person to not contravene any rule of the game to avoid punishment. Imagine a rugby player being held delictually liable for injuring an opposing player when going of his feet in a ruck, a common mistake in rugby that should not lead to legal liability. The reasoning behind the judgment in the Roux-case is simply that where a player deliberately and flagrantly breaks a rule of the game and knows that such contravention will or might cause serious injury to an opposing player, he/she can be held delictually liable.

There is no need to alter the way in which you play a game because of the fear of legal consequences. However, be aware that malicious actions on the field of play, may lead to serious repercussions.

References:Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72

Roux v Hattingh 2012 (6) SA 428 (SCA)

[1] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par27

[2] Roux v Hattingh 2012 (6) SA 428 (SCA) at Par28

[3] Labuschagne JMT “Straf- en Delikregtelike Aanspreeklikheid vir Sportbeserings” Stell LR 1998 1 72 78

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)