A reader whose niece has apparently inherited a property after her aunt left it to her in what he calls a “certified letter” or “affidavit” wants to know how the niece should go about transferring it into her name.
The aunt, who died recently, had no children and the letter says the property should be transferred to her niece.
A potential problem in this instance is that the document purporting to be the will of the aunt may not comply with the provisions of the Wills Act.
The act specifically provides that no will shall be valid unless it complies with a number of prerequisites.
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This, for example, includes the fact that two or more competent people should witness the signing and sign the will in confirmation of that.
If a commissioner of oaths is involved in the signing, he certifies that he has confirmed the identity of the testatrix, that it is her will and that the mark (if not a regular signature) made by her belongs to her.
Subsequent to the death of a person, a number of documents must be submitted to the specific Master’s Office that has jurisdiction over the estate.
One of these is the will of the deceased. This will be assessed and a decision made as to whether or not it is valid.
If invalid, the aunt will be deemed to have died without a will and intestate succession will apply.
In the event of intestate succession applying, it is possible for the wishes of the aunt to be adhered to if all beneficiaries agree.
This can be done through a combination of redistribution of the various items in the estate and the waiver of any benefits they were entitled to receive.
This, of course, relies on all people involved cooperating to the benefit of the niece.
However, there is another possibility under the Wills Act.
In the case of a seemingly invalid will, the act states that if a court is satisfied that a document was intended to be that person’s will, it can order the Master’s Office to accept it even if it does not comply with all the formalities.
In this instance, there is a written and signed document purporting to be the will of the aunt. To determine whether or not she intended it to be her will, the court could hear extrinsic evidence in support of the fact.
If the niece makes a successful application to the court for the document to be declared valid, the transfer of the property can take place in the usual manner.
This is where the appointed executor of the estate sees to the winding up process, including the transfer of the property.
The transfer will usually take place towards the end of the process and the executor would appoint a conveyancing attorney for this task.
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