FAQ’s

correspondence_6Antenuptial Contracts

Why are antenuptial contracts important?

Antenuptial contracts are difficult to amend as they dictate the financial and proprietary consequences of the couple’s future and can affect the rights of the couple’s creditors. The antenuptial contract is often described as the first step towards, and the foundation of, responsible financial planning.

Which is better: an antenuptial contract with or without accrual?

Neither system is superior to the other. The marital property regime chosen (ie, with or without accrual) must suit the couple’s relationship dynamic and specific needs. That is why it’s important to have a contract tailored specifically to your circumstances drafted by a specialist in the field.

Is the accrual system a combination of a marriage in and out of community of property?

No, there is no formation of a joint estate. The accrual system is out of community of property but incorporates a calculation that is applied when the marriage is terminated (which could be on death or divorce). This means that the couple will share the assets and income generated during the course of the marriage based on a particular calculation when the marriage is terminated.

How do I convince my fiancé to have an antenuptial contract drafted? I feel it is in both our best interests. How do I do this without giving the wrong impression?

As attorneys we realise that many unfounded misconceptions exist around the nature of antenuptial contracts. However, it is important to realise that these are essential foundations in effective estate and financial planning strategies and are designed to promote the creation and sustenance of wealth. In this context, the gesture is not intended to hold your future spouse ransom but rather to ensure that you can establish a solid foundation for estate and financial planning, transparency and fairness. We can assist and are committed to making the experience easy to understand and implement.

Does an antenuptial contract with accrual cost more?

Our fees for drafting are based on the individual requirements of our clients and complexity involved rather than the type of contract selected.

Do we have to execute an ANC before our wedding or can we do it afterwards?

Your antenuptial contract must be executed in front of a Notary BEFORE your union is solemnised. If this is not done you will be married in community of property and will have to apply to the High Court for the post-nuptial registration of your ANC. This is a lengthy and expensive process which should rather be avoided.

Do we both need to consult with a Notary or can one of us do it?

It is important that both parties to an intended union consult with a Notary to discuss the legal implications of entering into an antenuptial contract. Should one party be out of the country or otherwise unable to meet with the Notary in person a telephonic consultation between that party and the Notary will suffice.

What if one of us is not able to sign the antenuptial contract in person in front of the Notary?

While it is not ideal, it is possible for the party who is unable to sign in front of the Notary to sign a Power of Attorney granting a third party the power to sign in front of the Notary on their behalf.  This procedure should only be used in exceptional circumstances where there is absolutely no possibility of the particular party being able to appear before the Notary in person.

How far in advance of our wedding should we consult with a Notary?

If possible, a Notary should be consulted at least fourteen days before the wedding. This will give the couple time to discuss the legal implications, as explained to them by the Notary, of entering into an antenuptial contract. Once they have decided on what they would like the contract to specify they may instruct the Notary accordingly and the Notary will prepare the documentation. An appointment can then be made for signature. Due to the importance of an ANC couples should not rush the process. The more time they allow themselves to consider the legal implications of the contract the better.

Civil litigation

How much does it cost to sue someone?

The cost depends on many factors, starting with whether it is simply a question of approaching the court. If you do approach the court, then the cost of the action depends on many factors, including the location of the court and which court is involved.

In South Africa there are various options for resolving a dispute, including what is formally termed alternative dispute resolution. Alternative dispute resolution options include Ombud structures, tribunals and arbitration proceedings. These are generally more cost effective and more efficient than court proceedings. However, more often than not, these institutions do not make costs orders in respect of the winning or losing party. This drawback means that although you could benefit from reduced costs and speedy resolution of the issue, you may not be able to recoup any of your legal or advisory costs from the opposing party as you would in a court case.

In litigation, what does it mean for the successful party to recoup its legal costs from the losing party?

Our courts use their discretion to decide the basis on which legal costs are awarded. Generally, this is based on various tariffs published by the court. The court tariff also refers to the party, and party scale is the lowest of all the scales. Most attorneys render their services based on the Law Society’s guidelines for non–litigious fees. These can be on the attorney client or attorney own client scale, which can be much higher. This scale is much higher and often results in the successful party only recouping about between thirty and sixty percent of their legal costs from the other party.

However there may be instances where the court deems it just and equitable to issue a costs order against the losing party on the basis of fault. It is a balancing act, because there is a general principal in law that no one is to profit from litigation. It is essential that clients are aware of this prior to electing whether or not to proceed with a court action or to sue another person.

productivity_4Commercial law

I want to register a business. How do I do that?

We specialise in tailoring legal solutions that suit our clients’ specific needs to promote their best interests. To decide on the most effective way forward for your unique circumstances, we always recommend that legal matters are treated with the necessary priority and dedication. We therefore recommend that we arrange a detailed consultation with you. During the consultation, as a means to elect the best business vehicle for your unique situation, we will explain the available options to you and point out all the pros and cons. With this information to hand, we will then assist you with registering the most appropriate vehicle to suit your business needs.

I need a contract drafted, how much does it cost?

The costs for legal services depend on the nature and complexity of each individual instruction. We therefore recommend that you meet us for a detailed consultation, so we have sufficient information to provide you with a cost estimate for the specific agreement you require. We are therefore not in a position to advise on exact costs in response to an initial enquiry.

Contract Drafting

Do employment contracts and lease agreement have to be in writing?

No. The Basic Conditions of Employment Act and Rental Housing Act will each apply if no written contract is in place. However, it is always better for agreements to be in writing, to ensure that your particular circumstances are accommodated.

Can I copy agreements found on the internet?

No, this is not recommended. The internet source may not be trustworthy and contents may be inaccurate or unsound in law.

My landlord is mistreating me financially and abusing my rights (for example, he switches off lights at any given time). Can I sue him? What are the correct steps I should follow?

The simple answer is yes, in terms of the laws regulating residential lease agreements and consumer protection. However, the definitive answer will depend on your specific circumstances and the contents of the agreement.

Conveyancing and Property Law

Who pays for the transfer when I inherit a property?

The deceased estate usually pays the transfer fees.

I want to buy a property but I am worried about the costs – do I pay the transfer costs or does the seller of the property pay?

Usually the purchaser of a property pays the majority of the costs including the Conveyancer’s fees and the Transfer Duty.

I am married in community of property but I want to buy a house and have it registered in my name only – is this possible?

No, if you are married in community of property you may not buy or sell immoveable property without the consent of your spouse. When buying property it must be registered in both names and you will be co-owners of the property in undivided shares.

I have lost my title deed, how do I get a new one?

Should you need a copy of your deed for information purposes only you can go to the relevant Deeds Office and request a copy. Should you be unable to do so you could alternatively instruct an Attorney to obtain such a copy from the Deeds Office in person or by using the applicable online service.

Should you need a copy of the deed for transfer purposes a special application needs to be brought for the issue of same. In such a case you will need to seek the advice of a Conveyancer and instruct them to make the necessary application for you.

 money_2

Wills and Estate Planning

I had a will drafted a few years ago but I have lost the original. Will a certified copy of the will be accepted after my death?

As a general rule only the original copy of a will can be accepted by the Master of the High Court. It is possible for an interested party to bring an application to the High Court requesting that a document other than the original be accepted but this is a long and expensive process with no guarantee of success. It is advisable to have a new will drawn up and signed after which it should be kept in a safe place, ideally in the storage facilities of the Attorney who drafted it.

I am married in community of property but I want to leave everything in my will to my favourite charity – is this possible?

No, if you are married in community of property, no matter what your will says 50% of your net assets will be awarded to your spouse. Only the other 50% may go to the charity that you have specified in your will.

If I am married out of community of property, do not have a will and have no children who will inherit from me after my death?

If you die intestate (without a will) then a specific system is used (as set out in the Intestate Succession Act) to establish who should benefit from your estate. Should you have no children but you leave behind a spouse to whom you are married out of community of property, that spouse will amount to your closest relative and will inherit your entire estate.

Who should I appoint as the executor of my estate – does it have to be an attorney?

The duties of an Executor are onerous particularly where you leave behind an estate valued at more than R125 000.00. While it is possible to nominate a family member as your Executor it is advisable that you get advice from an Attorney before naming such a person in your will and also discuss what is expected from that person with them.

How do I ensure that my family have enough money to pay for all of the estate-related expenses after my death?

An important aspect of estate planning is to ensure that there are enough liquid assets in your estate that can be used to settle the expenses of the estate. Such liquid assets would be savings accounts, fixed deposits and so on. Should all of your wealth be tied up in immoveable property and assets that cannot quickly be converted to cash then a solution is to take out a life insurance policy, the proceeds of which can be used to pay the necessary expenses. In such a case the policy must be payable to your estate after your death and NOT to a relative or heir. When drafting a will it is advisable to discuss the liquidity requirements with an Attorney and to plan accordingly.

Should I buy a will at CNA or other generalist stationery outlet?

No, we do not recommend that. Your will is a unique legal document which becomes your voice when you can no longer speak for yourself. It should be drafted with the utmost care and skill, and tailored to your unique circumstances.

Should I have a will drafted with the bank?

Banks will usually draft a will for free on the condition that they are the executors. This means that your estate will be administered by a stranger after your death. In addition, the bank will charge the maximum rate to administer your deceased estate. This means that your assets will be processed and sold by a large institution that has no personal connection to you or your family. Any decisions taken will be based primarily on financial considerations rather than being based on what is in the general best interests of your heirs.

Can I draft my own will?

No, we do not recommend that. Your will is a unique legal document which becomes your voice when you can no longer speak for yourself. It should be drafted with the utmost care and skill, and tailored to your unique circumstances.

Difference between a Testamentary Trust and an Inter Vivos Trust

A testamentary Trust is established when a person who is known as the founder makes provision for establishing a trust in their will. The trust does not come into existence until the founder dies. These trusts are mainly applied in stances wherein the founder has maintenance or support obligations. It is also useful in instances wherein one wants to look after dependents who lack capacity, by law to receive an inheritance.

An inter vivos trust is established between the living. In this instance property is transferred to the trust before the death of the founder and managed by the trustees for the benefit of the beneficiaries. In this instance the founder relinquishes direct control over the assests.  It is useful to hold company shares in a trust, ensuring that the business continues to operate with minimal disruption.

Tax

What are the tax implications of bequeathing immoveable property to my children?

For estate duty purposes any assets bequeathed to the surviving spouse of a deceased person will not attract estate duty. Where assets are bequeathed to the children of the deceased, however, estate duty will be payable on those assets subject to the primary abatement. It should also be noted that death amounts to a “disposal” for capital gains tax purposes and so it is important to consider all of the tax implications at the stage of the drafting of the will.

If I only have assets valued at approximately R250 000 will any tax be payable on those assets after my death?

Estate duty will not be payable as there is currently a primary abatement available of R3.5 million. While death is considered to be a “disposal” for Capital Gains Tax purposes there is an annual exclusion of R300 000 for natural persons in the year in which they die. Neither estate duty or CGT would therefore be payable in such a case.

I want to donate a property to my minor child – will donations tax be payable?

Yes, donating property to your children during your lifetime means that estate duty will not be payable on the donated assets after your death but donations tax will be payable at the time of donation. There is an annual donations tax exemption of R100 000 so any donation valued at less than that amount will not attract donations tax. It should also be borne in mind that donations amount to “disposals” for the purposes of Capital Gains Tax. Any prospective donation should be discussed with a Tax Consultant so that all of the tax implications are considered.

legal_2Attorney’s Practice

What is FICA?

“FICA” refers to the Financial Intelligence Centre Act. This Act provides that certain accountable institutions, including attorney’s firms, are obliged by law to obtain certain documentation from their clients. In the case of clients that are natural persons the attorney is obliged to obtain proof of the identity of the person, proof of their residential address and proof of their income tax number. The Centre may, at any time, ask an attorney for proof that they have been complying with the requirements of the Act and so it is imperative that they always obtain the necessary information from their clients.

What is the difference between a Business Account and a Trust Account?

Trust accounts are regulated by section 78(1) of the Attorneys Act 53 of 1979. The trust account is used to keep the clients funds for payment of authorised services, advocates fees, correspondent attorney fees etc. Clients are required to pay a deposit into the attorneys’ trust account. The rationale behind this practice is fairly simple- these funds are used to secure services of the attorney, advocate and sheriffs fees etc.  Once the legal services has been rendered the funds in the trust account is transferred into the business account. These fees may not be transferred before completion of the services to be rendered.

Prescription of Debt

How does prescription of debt work?

In terms of section 10(1) of the prescription act, act 68 of 1969,  a debt is extinguished by prescription after the effluxion of the prescriptive period (usually 3 years) from the date which the debt fell due. In instances where 3 years has passed, since the debt became due, and you have not acknowledged that you owe the money, never agreed to paying the debt, have not made any payment towards settling the debt or Summons has not been issued against you, the debt has in all likelihood  prescribed. In this instance one can raise prescription as a defence, when called by the creditor to pay the debt.

There are many medicines. Certain medicines are popular. Other treat peculiar ailment like Lupus nephritis. DIFLUCAN, one of of a new group of triazole antifungal agents, is available as a powder for oral suspension. There are numerous drugs for each afflictions. If you’re concerned about erectile soundness problem, you probably know about levitra 10mg. Very likely every man knows about levitra cost per pill. (Read more cheapest generic levitra). Once people are looking for drugs to resolution sexual health problem. On occasion another disease will lead to erectile disfunction. There are risks possible with any type of medication. Certainly you need to take dangerous side effects in consideration before purchasing any medicine. Get in touch with your body and stay healthy for long years.