Posted on

Executing a will during lockdown

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.

12 thoughts on “Executing a will during lockdown

  1. Good day, I am in agreement. I dealt with a client who literally has no one to sign as witnesses, I however forwarded a declaration to the effect that it was done out of own free will that she opted for the will and what its instructions should be. The will obviously needs to be executed properly when possible.

  2. Why can’t a Zoom or Skype meeting be arranged, it can be recorded showing the testator/testatrix signing, the recording shows who was on the call and they sign in part as we would do in contract law? The family is present and they can’t later argue that testator was not able to or not in a good mind? Let’s embrace technology

  3. I agree with Hugo and have actually implemented this process with the necessary disclaimers.

  4. Thanks for the comment, Hugo. What you suggest can be done. However, such a document will not comply with the formal requirements of the Wills Act. It will make the court application under sec 2(3) of the Wills Act a lot easier, but the Master will not be able to accept the will without a court order. Contracts are covered by the Electronic Communications and Transactions Act, while wills are specifically excluded. Furthermore the requirement in sec 2(1)(a) of the Wills Act that the witnesses must sign in the presence of the testator and each other will almost certainly not be satisfied by your suggested course of action. While your suggestions may have merit, the reality is that we cannot recommend such a course of action as a way to execute a valid will. Only Parliament can do something about that by changing the Wills Act, and Parliament is in recess.

  5. Good day; I am also inclined to think neighbors over the fence or next property is efficient witnesses; bearing in mind that they can see each other sign. each perhaps with their own pen and gloves?

  6. The testator should arrange with two friends to buy food at an arranged time and sign on the bonnet of his car.

  7. Thank you Louis for giving us a little more perspective on this. I think we are all in agreement that we still need to follow the applicable acts. One does,however, come across situations, such as the current national Lockdown, where clients have the immediate need to draft a Will, or make amendments to an existing Will, and complying with the formalities in terms of sec 2 of the Wills Act is just not possible.
    It is in cases such as these that we might need to investigate actions preempting a sec 2(3) application to Court by following a process using recorded video calling, from consultation with the client, through drafting of the Will, reading thereof on video and finally signing it in the (video) presence of witnesses. This process could then be substantiated by declarations by all parties involved (client, Wills drafter, witnesses) to the effect that the aforementioned process was followed during a period of national disaster, preventing the testator to comply with the formalities for the signing of the Will. It would also be necessary that the testator confirms that it is his intention that this Will is to be his last Will and that the way in which it was drafted and executed was done to support an application to court in terms of sec 2(3), should he die before being able to draft and sign a Will in terms of the normal required formalities of the Wills Act.

  8. From above: “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.”
    This is exactly what FISA should do and with all urgency.
    I have two revised Wills pending, one for an elderly lady who can’t get to the shops so I’ve effectively proposed the “sign on the car bonnet” solution in her own garage with competent witneses present all keeping social distances, using own pens and, to prevent paper-touching contamination, covering all signatory pages with blank paper brought by each signatory. But SAPS could stop me getting there to supervise, and then the South Easter blows all the pages and then….!?
    Please act urgently Louis and FISA, the lockdown will be extended and is itself a major reminder to us all to check our Wills.

  9. The formalities are strict and unless there is absolute compliance with the signing and executing provisions of the Act the Master cannot accept such document as the Will of a deceased. The only alternative, to validate such document as the Will of the deceased, is by a Court Order in terms of Section 2(3) of the Wills Act. In this regard be mindful of the unfortunate Appeal Court decision of Bekker v Naude which requires that the maker of the Will ‘personally’ draft same.

    In response to what has been suggested above, if the fence suggestion is a high fence and cannot be seen through I do not believe that the Will has been properly witnessed. One needs to be in a position to see the testator and second witness sign (the blind witness???).

    In order to ensure that the Lock-down testator’s Will is valid and to avoid the delay and expense of a High Court Application, ensure as soon as possible after the Lock-down is over that the Will is properly signed and executed.

  10. Thank you for your valuable contribution, Arnold. Fortunately Bekker v Naude will not apply if the testator signed the document, regardless of who drafted it. This because Section 2(3) refers to “… drafted or executed by a person who has died since the drafting or execution thereof…” (the important word there “or”), hence our suggestion to sign the document. Fully in agreement with your advice that the document must be properly signed by witnesses after the lockdown is over, at which time the testator can then acknowledge his/her signature to the witnesses while in their presence. FISA made a submission to the Dept of Justice, in the meantime, to have the drafting and execution of wills declared an essential service.

  11. Great discussion. Deviate with funny plans from the Wills Act at your peril. It’s time for the Act to change in order to bring it up to the modern age. Was discussed at 2018 FISA convention. Writing an article about it. Cheers.

  12. This is quite useful information, thank you. We look forward to feedback on the possibility of having the drafting and execution of wills declared an essential service during this period.

Leave a Reply

Your email address will not be published. Required fields are marked *