Friday, 28 September 2007


1. A will which is complete and regular on the face of it (ie where all the prescribed formalities have been complied with) is presumed to be valid until the contrary has been proved.

2. Before issuing letters of executorship, the Master conducts a preliminary investigation and checks about 10 or so technical aspects, eg whether a witness appears to be a beneficiary named in the will (in which case he would not be entitled to inherit).

3. A will may be invalid inter alia –

3.1 where the testator does not realise that he is signing a document in which he expresses his intent as to how his assets are to devolve following his death; or

3.2 The testator executes the will as a result of fraud, duress or undue influence. Where a will has been signed in any of these circumstances, the testator is not acting voluntarily and one of the bases required for a valid will is missing.

4. The expression of a testator's last wishes must be the result of the exercise of the testator's own will. Undue influence has been described as an influence which has 'caused the execution of a document pretending to express a testator's mind which really does not express his mind but something else which he did not really mean'.

5. In order to constitute undue influence the behaviour of the influencer must result in the substitution of her wishes for the wishes of the testator.

6. The legal responsibility for establishing and influence rests upon the party who alleges that undue influence was brought to bear on the testator. Whether or not there has been undue influence is a question which must be determined with reference to the facts and circumstances of each particular case. The mental state of the testator and the testator's ability to resist instigation and prompting are all factors to be considered. The relationship between the parties may also be important and may give rise to a metus reverentialis (literally, intimidation arising out of over-respect/fear [on the part of the intimidated party]). The relationship might be such that the request by the one party to the other might be regarded by the latter as a command which must be obeyed. The mere existence, however, of a relationship of a particular kind does not give rise to a presumption that the wishes of another has been substituted for the testator's wishes. This substitution has to be proved.

7. If, after the execution of the will, a period of time lapses during which the testator could have altered the will should he have wished to do so, his failure to take advantage of this opportunity is a circumstance from which it may be inferred that the will was not made against the testator's wishes or that the testator had subsequently voluntarily and tacitly confirmed that will.

Wednesday, 19 September 2007

A Pledge to Our Clients

# We Seek to Understand the Big Picture

We seek to give value to our clients. We ask questions and do lots of listening. We seek to understand how the matter you are asking us to handle fits into the big picture. Where relevant, we will seek to understand the dynamics and trends of the industry in which you compete or the context in which you operate. We come to the client for consultation or in our own office, as preferred.

# We Seek to Establish our Client’s Expectations and Then Exceed Them

We walk our client through how we propose to handle the matter and what he/she can expect in terms of results and timelines. We create a reasonable set of expectations and do our best to beat them. If we are unable to meet our commitments, or the results are not likely to be what we anticipated, we share that information with our client immediately.

# We Seek Always to Follow Through on our Commitments

We set reasonable deadlines and do our best to stick to them.

# We Return Telephone Calls as Promptly as Possible

Our policy is to return all calls as soon as possible but on the same day as received, at the latest.

# We Will Communicate with You in the Manner You Prefer

We will ask you the method and frequency of communication you prefer and deliver our updates and progress reports accordingly.

# We will not “Over-lawyer”

We will not research issues to death and uncover every old case and precedent to make sure we are 100% right, thereby raising your bill unnecessarily. We will do what’s right for you.

# We Strive Not to Send Surprise Invoices

We discuss estimated fees and costs up front with you. We try to give you an estimate of our fee and discuss any unforeseen developments that may arise. We talk through the options and seek your direction on how you want to handle them.

# We Appreciate Your Business

We realise that there is more to practising law than providing quality legal work. We want to provide great service, too. We strive to practise these golden rules consistently, so as to end up with loyal, long-term clients and an enjoyable and gratifying legal practice.

This blog is based on original material and material from the website of the American Bar Association © 2003-2007

Wednesday, 12 September 2007


Often legal clients are disillusioned with their attorneys. Sometimes this disillusionment may be justified. But just as often the lack of satisfactory service from the attorney is often due to the ignorance or inability of the client. A client needs to know how to use the lawyer's services to get the best from him.

The First Consultation

When you go in for your first interview with a lawyer or instruct him for the first time by phone, fax or e-mail, you should:

1. organise your documents – chronologically (date-wise). An index or table of contents is also useful. The index should also give a brief description of the documents (see the example below ). Provide him with all the relevant documents so that he can prepare your case well.
2. Write your story in a page or two. Bring it with you or fax or e-mail it. Cover all the essential matters. It's best typed but a hand printed document is acceptable. Your story should be organised chronologically. This saves the attorney's time. He no longer has to take down in a consultation what you could have written or typed out beforehand. You use his time efficiently and save unnecessary fees.
3. Write out any questions you may have. How long will the case take? What are my chances of success? What are the chances of a negotiated settlement ? (Most civil cases are settled.)
4. Consider bringing a friend with you to the interview. Ask the lawyer whether this would be appropriate. For some cases, it's not a good idea. However, a friend in the interview could provide moral support.

How to Communicate Effectively with your Attorney:

1. If you change your address, phone number or e-mail, let him know straight away.
2. If he asks you to provide information or documents, respond promptly.
3. If you are going to be away for a while such as during holidays, inform his office.
4. In many cases the best way to communicate with the lawyer is through his secretary. Get to know the secretary. Lawyers tend to be in and out of court or in meetings. Secretaries are always there.
5. Never take a legal decision (eg whether or not to accept a settlement offer) without consulting your attorney first.
6. Don’t phone every day, but don't hesitate to phone if you want to know what's going on, either. Consider whether your phone call is necessary. Can you save your questions for the next meeting? Each phone call will use up your lawyer's time and your money - his time and advice are his stock in trade. But busy lawyers sometimes need nagging clients !
7. Pay his bills promptly. The clients that enjoy the best service are inevitably the best payers. There is a subtle psychology at work in any lawyer's brain that tends to give the rewarding client's file priority in preference to a client who is difficult or a non-payer.
8. Should you terminate your lawyer's mandate, be the first to tell him. Don't let him learn of it through third parties.

You and Your Lawyer Are A Team

1. Don't think your attorney is all-knowing and all-capable while you have nothing to contribute.
2. While your attorney needs to learn about, and often imagine, what actually happened in leading up to the dispute or situation, you have lived through it. This experience is invaluable to your attorney. Share it with him to as great an extent as possible. Provide the best and fullest possible information you can. Rather give him too much than too little. Don't hesitate to suggest some strategy or step that he might not have thought of, so that together you can come up with best strategies.
3. Try to gain as much of your own legal information as you can. Use that information to leverage more effectively the legal advice from your attorney. Educating yourself on the law, allows you to get more out of your attorney and could enable your attorney to obtain better results for you at a lower cost.
4. The more you know about what your lawyer can do for you, the more synergistic the relationship. Blogs, government websites and law firm websites are full of valuable information about the law – even taking out library books. The more quality legal information you assimilate, the more fruitful discussions with your attorney will be, and the more intelligent your joint decision-making.
5. Educating yourself will allow you to ask better questions and assimilate expert advice more effectively. Good attorneys prefer well-informed clients who take ownership of their legal wellbeing. Paying an attorney merely to regurgitate legal information wastes time and money. Paying a skilled attorney to propose a legal course of action on a legal issue on which you have educated yourself may well be the best money you spend.

How to Reduce Your Fees
There are ways in which you can get your legal fee reduced to make them more affordable:
1. make sure that you discuss your case as well as your personal finances explicitly with your lawyer.
2. elucidate how your case can be advantageous for him and his firm;
3. always, consider hiring a lawyer associated with a smaller firm – they are almost always less expensive;
4. consider doing a significant amount of footwork yourself. This will reduce the legal fee;
5. if you have a lot of legal work, and you are in need of a legal representative for the long-term, you can negotiate, and ask for a fee reduction;
6. your lawyer will be obliged to charge a lesser fee if you prepare evidence and documents well, saving the lawyer many of these tasks;
7. e-mails are better than phone calls. Do not speak for longer than necessary. Your lawyer needs to charge you for his time if he is to earn a living. So be short and precise;
8. be sure to obtain a written fee agreement/mandate at the outset:
8.1.1 a fee agreement is essential. An attorney will serve you based on what you provide him. Be sincere when it comes to paying him. Make sure you pay his entire fee at the right time.
8.1.2 when you sign a fee agreement with an attorney, be aware of how the case will be handled, and in what way the fee will be made up. The agreement should clearly state all the terms and conditions.
8.1.3 mention clearly what services you want, and what result you anticipate. Ask questions about the fee agreement, and try to understand every aspect of it.
8.1.4 remember that whatever you estimate about your case is just a rough idea of the expenses. The actual cost may vary with what you have in mind and what turns out to need doing.
8.1.5 Discuss terms in the fee agreement that you are not happy with. Your attorney will probably be willing to explain them or change them where he feels your objections are reasonable. If he won't, go to someone else. Better at the outset than later.

Avoiding Fee Disputes

1. When you hire a lawyer, make sure that you ask for the “fee” terms and conditions to be written down in the mandate. Obtain a cost estimate. Expect to pay a deposit.
2. Familiarise yourself with the fee recommendations made by the attorney's Law Society. This will give you an idea as to what the Society considers reasonable.
3. Keep a record of the advances given to the lawyer, meetings held along with duration and what was discussed, phone calls made, court appearances etc.;
4. Whenever some discrepancies come to your attention while checking your lawyer's bills, don't hesitate - get your doubts cleared;
5. Bear in mind that even if you win a case and the court orders the other side to pay your legal costs, you'll still have to pay about a third of the costs because your attorney's fees (attorney-client costs) will be higher than the costs allowed by the court (party-party costs).
6. If a fee dispute still arises, settle it immediately with the help of the following tips:
6.1 Discuss billing in a meeting with the lawyer. Make sure that the amounts that need clarification or verification are highlighted;
6.2 consider the evaluation (taxation) services of the relevant Law Society. In matters not involving litigation (trusts, contracts etc.) the Society will evaluate ("tax") your bill after hearing both sides. Where a court case is involved, approach the Clerk of the Court or the High Court Registrar to determine the amount owing;
6.3 You can hire another lawyer to check the accuracy and validity of the bill;
6.4 in case of injustice, you have the right to issue summons against the lawyer;
6.5 you can also file a complaint against the lawyer with the Law Society.

An Attorney for Your Business or Personal Life
1. Whenever you take a step with legal implications (eg leases, partnerships, shareholders/members agreements/employment contracts ) – consult an attorney first. Don't sign first and then run to an attorney when something goes wrong.
2. There are many legal issues related to a business. Signing a new contract or an agreement is bound to have legal aspects associated with it. Be proactive to avoid legal issues before they backfire on you. Make sure that contract is properly drawn up. Don't wait until something goes wrong. It will be too late. The answer is that you should hire an attorney for your business. He will not only help you when you are stuck in any legal problem but also to avoid unwelcome litigation in the first place.

If it's Justified – Say Thank You !

Nothing is more appreciated by a lawyer or secretary than a thank you – if they deserve it. You will boost his morale and make him keener to serve your needs. If you want your case to stand out, follow the thank you rule.


1. In addition to original material from Darrolls Attorneys, this article is based on material from the following:
a) An article by Adv David Mossop QC of The Canadian Community Legal Assistance Society, the publication of which was made possible by funding from the British Columbia Law Foundation. Its material may not be reproduced commercially, but copying for other purposes, with credit, is encouraged. Putting this material on the web for commercial or non-commercial purposes is prohibited without the Community's written consent. Community Legal Assistance Society, Suite 800, 1281 West Georgia St, Vancouver, B.C., V6E 3J7; Tel: 604-685-3425; Fax: 604-685-7611; Toll Free: 1-888-685-6222; websites: &
b) Brett J. Trout, P.C., 516 Walnut Street, Des Moines, IA 50309-4106; Phone 515.288.9263; Fax 515.280.7114; E-mail:; Website:
c) articles by Sumit Bhatnagar and Parul Aggarwal on the website:

20 Jan Letter from Joe Smith to Jane Doe…………………………… 1
03 Feb Copy of Statement from the XXX Bank ……………………. 2
07 Mar Photograph of damaged property at 123 Anywhere Street, Cape Town 3

3.See for instance "Non-litigious fees" on the website of the Cape Law Society: