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JW Fourie
JW Fourie, Attorney
Category: South Africa Law
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Experience:  L.LB (UOVS)
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Conditions of divorce were to sighn house off on condition

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conditions of divorce were to sighn house off on condition the house was transferred back to my gran in a certain time frame. That never happened, so transfer cancelled in 1984. Mom still owns deeds. Dad made a will and left house to my brother. Who legally in herits property?
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Could you explain everything in a little more detail please a- and confirm whether or not there are any actual court orders involved
Customer: replied 2 years ago.

Hi Clare sorry for delay but I cant seem to reach my mom , so until I do I am not able to help you right now. What further detail do you mean? This is SA law we are dealing with. So not sure if you can be of help? Please let me know. Thanks Bess

In that case I shall transfer you to the correct section and opt out.
It may take a little while so please be patient
Good Morning. My name is ***** ***** I will try and assist.

Is your Mom still alive?
Customer: replied 2 years ago.

Hi John sorry for the delay but I have only just got hold of my mom. She states that both parties ie my dad and her had to sign consent papers in the supreme court in Port Elizabeth that consent for the divorce was given by my dad on condition my mom relinguish ownership of of the house that they lived in to his mother .Such transfer to take place asp after the payment of 12500 rand was paid. the defendant would be responsible for payment of transfer to the defendants mom.. that payment never happened. His mother died 1994 and dad died now. he had a hand written will that master of court excepted leaving the property to my brother. apparently on the deeds it stamped transfer cancelled in 1984. My mom still has deeds in her name. So who inherits the property?

Is the deed currently in both your mother and your deceased father's name or in your mother's name only?
Customer: replied 2 years ago.

Hi John The deeds are still as I repeat in my moms name. My dad never followed thru on the transfer or court order and the funds for transfer never paid. So cancelled in 1984, by who? but in deeds document. My mom is alive as you should have gathered. The deeds have never been in his name, previously his mom or dad and they were signed to mom in 1971 because my dad was a financial liability. To. keep property from being taken in the future. You cannot give a property away if you have never owned it ??? So this is the problem. What is the outcome and who inherits the property? he has lived there since she left. May be your answer will do justice. Many thanks Bess Fenn

Apologies if the questions seem irrelevant, but I needed to make sure that he never had his name on the title deeds.

Beth, you are 100% correct if you say that you cannot give away that which you do not own. So, if the title deeds are in your mother's name, then the house is not his to give away. It, therefore, remains the property of your mother and whomever she decides must inherit it, will inherit it. If she does not draft a will, it will inherit in terms of the Intestate Succession Act.

Furthermore, both the fact that the suspensive conditions (the payment of the R 12,500.00) and the time lapse since the court order and the non-compliance with the court order, in my opinion, makes it impossible for whomever the executor of the estate is, to now come and try to enforce the court order by paying the R 12,500 and having the property transfered. The order has simply lapsed through the efflux of time.

The fact that he has lived there for about thirty years it would seem, would also not assist him, since he lived there with her permission (I assume).

So, the executor of his deceased estate would have now choice but to draw a line through the paragraph in the will where he leaves the house to whomever.

I hope this helps you a little bit, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.

Customer: replied 2 years ago.

Hi John thank you for that. She is shocked to know that and wants to know in drawing up her will what does she say with regards ***** *****? We were to understand, that as a condition for a divorce, she gave up ownership of property. So how can she suddenly get it back, if that was condition for the divorce? This as we know was in the supreme court. Still confused. Kind regards Bess

The short answer to that is anything she likes. There is virtually no limitations on the freedom to give through your will what you owe to whom you like.

I do not have the court order in front of me, so I can merely give you an 'educated speculation'.

1. It would seem to me, from the information you gave me, the divorce was not the only condition under which she was supposed to give up ownership. If I understand the court order correctly as you stated it, then she was to relinquish ownership of the property if both of two conditions have been met: (a) she and her husband is divorced AND (b) he pays her the amount of R 12 500. If one or both of these conditions has not been met, then she was under no obligation to relinquish ownership of the property.

2. In South Africa, ownership passess upon the registration in the Deed's Office of that property on the name of the new owner. This has not yet happened, so she is still, as far as the law is concerned, the legal owner of the property.

3. If someone else, like the brother now, wishes to make a claim to the property, then he must show that he has a legally valid claim. In his case, that would be the will AND the court order. This is because the deceased did not legally own the property. So, he would first have to prove that the deceased has a claim to the property and only then can the will come into the picture. He would then have to get the court to force the transfer in accordance with the court order.

4. There are two arguments that can be made that the court order is no longer valid. Firstly, it has not been executed or acted upon by the deceased in more than thirty years, meaning that any claim in terms of that court order has become prescribed in accordance with the prescription act. Secondly, it can be argued that the judgment/order was abandoned by the deceased in that the transfer was canceled and he never paid the R 12 500.

So, from whichever angle you look at it, I very much doubt it that the son or the executor of the deceased estate is going to succeed in getting the property into the deceased estate. Your mother would, as a logical consquence, retain ownership of the property.
Customer: replied 2 years ago.

Hi John that was a quick response. Just to let you know that I am very impressed. He did pay her 12500, but did not follow thru with the transfer, as that would have been a further some of about 20000 rand. So maybe that could change your answer?? She may not inherit property? Even if she owns the deeds. She did relinquish them as part of settlement. Bess

It may leave a very, very small window for the executor of the deceased estate, but still, the fact that so much time has lapsed since the order was granted up to now without formal registration (which is required for ownership to pass) taking place would still let me lean towards your mother.

Be that as it may, the ball is in their court. They need to take the necessary legal action in order to get the relief they require.

On the question whether she can inherit the property:

1. First off, it is, as far as I can tell, still hers. So, that point is moot.

2. Secondly, if by some luck the do get the property into the deceased estate, then she would not inherit, since the clause in the will that leaves the property to the brother will be revived and he will then inherit the property. Note that this can only happen if a court says that the Registrar of Deeds is to make such an annotation, or if the court orders your mother to comply with the previous court order and sign the necessary documents in order to effect the transfer.

If you ask me who would I rather work for (based on the facts you gave me), I will pick your mother, hands down.
Customer: replied 2 years ago.

Hi John one last thing that is bothering me, is that i did say that the written will had been submitted to the court and accepted.My brother assumes and claims that the property is his and has started renovating it to make it more habitable for tenants. Which is a problem if you say the property is my moms to claim. What should she do? Cos if property hers to claim he is wasting money on a property that hopefully is not his and is trespassing illegally. Please help? Regards Bess

The fact that the will contains a clause that is impossible to execute does not make the will invalid. So, that is why the Master accepted the will as a valid will. Consider that if I leave your property to my wife in my will and I leave my property to my wife in my will, the will is still valid, since I can still leave my property to my wife, but the executor will just ignore the clause which says that your property should also go to my wife, since there is no legal basis on which I am allowed to leave your property to my wife.

What I suggest your mother do is to get legal representation in order to get into contact with the executor so that the executor can inform your brother of the situation, alternatively so that he can contact your brother directly. I suggest that she do this before things really get out of hand.
Customer: replied 2 years ago.

would she have to do this thru her lawyer? Who is the executor of the will? How would she find out without having to go thru my brother? She wants to avoid confrontation. Where you from by the way and where you based? Just curious being a fellow SA. Bess

1. I can almost guarantee you that there is a court case in the future of this matter and the sooner she gets an attorney to assist her, the better. That is just my humble opinion, but there is nothing that says that she must use an attorney. She can explain the situation to him same as I did to you, but I doubt that it will make any impression on him.

2. I have no idea who the executor of the will is. That information can be obtained from the Master's Office of the High Court where the deceased lived prior to his death.

3. There is absolutely no way that she is going to avoid confrontation, in my humble opinion. The matter may possibly be settled, although I have no proposals in this regard.

4. I am based in George in the Western Cape.
JW Fourie, Attorney
Category: South Africa Law
Satisfied Customers: 15603
Experience: L.LB (UOVS)
JW Fourie and other South Africa Law Specialists are ready to help you
Customer: replied 2 years ago.

Many thanks for your advice. I hope this wont get nasty?? I shall advise mom. Thank you again. Kind regards

Bess Fenn

PS George is beautiful

Only a pleasure. I hope so too. George certainly is beautiful. I cannot fault you on that.