Consequences if I want to break off my engagement
In South African law, an engagement is considered a contract and breaking it off can have legal consequences. If a party breaks the engagement without lawful reason (unlawful termination), they may face claims for damages.
An engagement can be lawfully terminated without consequences under certain conditions, such as:
· mutual agreement,
· death of a party, or
· lawful repudiation for just cause
o (e.g., misrepresentation
o or wrongful conduct).
However, “unlawful termination” — ending the engagement without just cause, can lead to claims for both contractual damages and satisfaction under delict law.
Contractual damages include:
· Real damages: Expenses incurred in preparation for the marriage.
· Prospective loss: Compensation based on what the wronged party would have received if the marriage had occurred, though this is speculative and controversial.
Recent court cases
Recent court cases like “Van Jaarsveld v Bridges” and “Cloete v Maritz” have questioned the validity of claims for prospective loss, with the courts suggesting that engagement claims should not exceed the consequences of divorce. The idea that an engagement is more of a time to decide about marriage, rather than a binding contract, is gaining ground.
In conclusion
While claims for prospective loss are still debated, it’s becoming less likely that South African courts will allow such claims in the future based on Constitutional Grounds and outdated legislation within the new South African Society.
Consult and contact me to advise you on your financial options and possible consequences before you decide to get engaged or get married in conjunction with your attorney.
Can I revoke my Last Will and Testament?
The short answer is yes, you can. However, certain conditions must be met for the new will to be valid. A recent case, “Roux N.O and Another v Stemmet N.O and Others”, highlights some of these key considerations.
In this case, the Western Cape High Court examined whether a person intended to revoke their existing will. The deceased, hospitalized with COVID-19, expressed a desire to revoke their will and create a new one. However, the court found that the necessary intent to revoke was absent, stressing the importance of complying with the requirements of the Wills Act. For more detail, see “Roux N.O and Another v Stemmet N.O and Others.” (17064/2022) [2023] ZAWCHC 222.
The Legal Framework
Section 2A of the Wills Act allows a court to declare a will revoked if the testator, in this case, the deceased: “drafted another document or before his death caused such a document to be drafted, by which he intended to revoke his will or part of his will and the court shall declare the will or the part concerned, as the case may be, to be revoked.” (Wills Act, 7 of 1953).
In this case, the court determined that the deceased did not personally draft the document upon which the trustees relied to revoke the 2018 will. Instead, it was drafted by the attorney, based on instructions from Mr. Willemse, not the deceased.
Additionally, the court found that the deceased never physically received, reviewed, approved, or signed the draft will in the presence of witnesses, as required by Section 2(1)(a) of the Wills Act. At the time the draft will was delivered by nursing staff, the deceased was in a coma, unaware of the document’s content and unable to confirm whether it accurately reflected his intentions.
As a result, the court concluded that the necessary “animus revocandi”—the intent to revoke—was absent.
Key Takeaways
Courts are generally cautious about declaring documents that do not meet the Wills Act’s requirements as valid wills. It is always advisable to seek assistance from an attorney or fiduciary expert when drafting or amending your last will and testament, especially as your circumstances or wishes change.
Update Your Will Regularly
It's essential to revise both your financial plan and will regularly. Any significant life event, such as the birth of a child, marriage, divorce, or the death of a family member, should prompt you to update your will.
For example, consider the case of Mr. X, who divorced his wife but never updated his will. He later remarried and had two children with his new wife. When Mr. X died 17 years after his divorce, his will had not been changed. This meant that his new wife and children could not inherit anything, as the original will, made before the divorce, remained valid.
Don’t Delay
Ensure your will is up to date and reflects your current wishes regarding your estate. Contact me today to avoid any potential issues or delays in obtaining your free will.
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