“Codicil”
A codicil (from the Latin codicillus, meaning “a small writing tablet”) is a legal document in which you can make minor changes to your existing will. That said, rewriting your whole will can sometimes be a better option – particularly if the changes are substantial or complex, or if you already have a codicil (multiple codicils can be confusing!).
Remember that it must comply with exactly the same signing and witnessing rules as a will to be valid. And, on a practical level, be sure to attach the codicil to your will as an addendum, and to tell everyone who needs to know about it, especially your executor.
Commonly used interchangeably in the context of wills and estate planning, these terms do in fact carry different meanings, and the distinction can be important. Simply put, a “beneficiary” is anyone who benefits under a will. A “legatee” is a type of beneficiary who is left a specific item, amount or benefit (e.g. “I bequeath R100,000 to Mary”). An “heir” on the other hand, is a beneficiary who is left the residue of the estate (or a percentage of the residue) after all other beneficiaries, estate debts and administration costs are settled.
A final thought – if you haven’t heard of a legatee before, you’re in good company. It’s used mostly in legal circles because “beneficiary” and “heir” are more widely understood by lay clients and often used as umbrella terms covering all three concepts.
“Abuse of Process”
“Abuse of process” is the use of our court system to improperly delay, harass, or obstruct another party. Some examples: repeatedly litigating on the same matter without justification, launching meritless cases for ulterior motives, taking unnecessary legal steps purely to frustrate the other side, or dishonestly using a legal process merely as a tactic to block or delay lawful action by another party.
To deter such behaviour and keep our legal system fair and efficient, courts can impose punitive costs orders or even declare offenders “vexatious litigants”, thereby limiting their ability to launch further proceedings without court permission.
“Per stirpes”
You’ll come across the Latin term “per stirpes” often in wills. It’s an important concept, translating literally as “by roots” or “by stock” and telling everyone, in simple terms, that you want your estate to be divided equally between the branches of your family rather than between individuals.
Take for example a testator who leaves their estate 50/50 to two children. If one child dies before the testator, the surviving child gets their full 50% whilst the deceased child’s 50% is divided equally between that child’s children (e.g. 25/25 if there are two of them). And so on, down the line.
You’ll often come across the term “alimony” (from the Latin “alimonia”, meaning “nourishment” or “support”) in American movies and series. It also occasionally crops up in some older English law contexts such as P.G. Wodehouse’s wry comment that, “Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else’s cash.” Our South African equivalent of “alimony” is “spousal maintenance” or “spousal support”.
“Maintenance” on the other hand is our law’s broad term for both spousal and child maintenance, “child support” being the American term for the latter.
A nolle prosequi (Latin for “do not want to pursue”) is a formal certificate issued by the National Prosecuting Authority (NPA) when it decides not to pursue criminal charges against a person accused of a crime. This does not mean the accused is innocent, only that the state has chosen not to proceed. That’s usually due to the NPA’s assessment that there is no reasonable prospect of a successful prosecution. But it does open the door for the person laying the charges to consider instituting a private prosecution.
You will most often come across trust accounts in your dealings with attorneys and estate agents, who must use them to hold funds on behalf of clients and other third parties. The funds in a trust account must be kept in a registered South African bank and are subject to yearly audit. They do not belong to the professional and must by law be kept entirely separate from the professional’s own business or personal funds.
If you pay over money to an attorney or estate agent to be held on your behalf, check that their Fidelity Fund Certificate (FFC) is current and ensure that the money is paid into their trust account, not a business or personal account.