Several FISA members have enquired about practical ways to have wills signed during the lockdown period. Some have suggested that the Master of the High Court should be approached for a special dispensation during the lockdown, and others have referred us to what is happening in other countries.
Note that The Master of the High Court has no authority to change the way in which a will must be executed, as the Master has no discretion granted in the Wills Act, 7 of 1953 (the Act).
The Act requires the following for the proper execution of a valid will.
• Although the Act does not contain a definition of the word “document”, the context in all the places in the Act where the word is used clearly indicates a document capable of being signed. “Will” is defined as “includes a codicil and any other testamentary writing” while “sign” is defined as “includes the making of initials …” which also clearly indicates that a hard copy document is envisaged.
• Sec 2(1)(a) of the Act provides the following:
◦ The testator must sign the will in the presence of two witnesses, or acknowledge his/her signature in the presence of the two witnesses;
◦ The witnesses must sign the will in the presence of the testator and of each other;
◦ The witnesses must be 14 years or older and must be able to testify in court.
• Sec 4A of the Act provides:
◦ Anyone who signs a will as a witness, or writes any part of the will in his/her own hand, or signs on behalf and by direction of the testator, is disqualified from receiving any benefit under the will;
◦ Despite this provision someone who would have inherited under the rules of intestate succession will not be disqualified, but the inheritance will be limited to the intestate portion the person would have inherited;
◦ A benefit includes nomination as executor, trustee, or guardian.
Electronic signatures will also not be a valid way to execute a will, as a will is expressly excluded from the provisions of the Electronic Communications and Transactions Act, 25 of 2002.
It is clear that it will not be easy to execute valid wills during the lockdown. Most of the people in your home are probably heirs in your will and should not sign as witnesses, bearing sec 4A in mind.
It seems that the following may be practical ways to execute a valid will under the current circumstances:
• If a terminally ill patient in a hospital is the testator, it should be possible to arrange for the will to be signed by the testator in the presence of two nursing staff members;
• If your relationship with your neighbours is such that you are comfortable to enlist their help, you can place the will document through or over the fence and then confirm to your neighbours on the other side of the fence that it is your signature that appears on the document. They can then sign as witnesses while you observe over or through the fence, complying with the requirement that the signing by the witnesses must be in the presence of the testator.
• While the SA Police Service (SAPS) is classified as an essential service and having copies of documents certified or affidavits solemnised would probably be essential services, it is not clear whether the local police station would be willing to allow members of the SAPS to sign as witnesses to a will, should the testator walk into the police station and ask them to.
In circumstances where none of the above is an option and there is no other way to validly execute the will, the common sense approach would probably be for the testator to date and sign the will properly and draft and sign a memorandum or letter as well making it clear why the will was not signed by witnesses but stating that the will is intended to be the testator’s last will and testament. If possible the will can also be scanned after signature and emailed to a fiduciary practitioner. This course of action will make an application under sec 2(3) of the Act to have the court order the Master to accept the will as valid much more likely to succeed.
FISA will investigate, in the meantime, the possibility of requesting the Minister of Co-operative Government and Traditional Affairs to have the drafting and execution of wills declared an essential service under the lockdown regulations.