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How to execute a last will and testament validly during lockdown

In these unprecedented times, we are helping our clients to prepare or update their Wills. o

Consulting with the client electronically and drafting the Will are fairly straightforward processes. However, some challenges lie in the valid execution of the Will under lockdown regulations.

The Fiduciary Institute of Southern Africa (FISA), through the desk of its Chief Executive, Louis van Vuren, made submissions to the Department of Justice on 6 April 2020 to apply for the drafting and execution of Wills to be listed as an essential service.

In summary, the following aspects of the submission are of importance. We quote these with the permission of FISA:

  • Under the lockdown regulations, no person may leave his or her place of residence except to deliver or obtain an essential good or service as defined in the regulations.
  • The Wills Act requires a testator to be in the presence of two competent witnesses when these witnesses attest to the Last Will and Testament of the testator.
  • The Wills Act disqualifies anyone who signed as a witness to a Will from receiving any benefit under that Will. Therefore, family members of the testator should never sign a Will as witnesses.
  • Wills cannot be executed electronically, as Wills are expressly excluded from the provisions of the Electronic Communications and Transactions Act.
  • During the lockdown, it is illegal for anyone to visit a neighbour or anyone else for purposes of having a Will witnessed.
  • Strictly speaking, it is also illegal to take the Will to a supermarket and arrange to meet two persons there to sign the Will as witnesses.
  • While it would possibly be legal to go to the nearest police station and ask the officers on duty there to sign as witnesses, this would probably not be desirable as it will place further pressure on an already stretched South African Police Service (SAPS).

The possible solutions:

  • The possibility of taking a Will to a police station to be witnessed will, in FISA’s view, place further pressure on an already stretched SAPS.
  • While it is possible, in urban areas and weather permitting, to place your Will over or through the fence at a pre-arranged time for your neighbours to sign as witnesses (while remaining within a few metres of the fence to comply with the “in the presence” requirement and to acknowledge the signature to the witnesses), this course of action will not always be possible. Furthermore, the testator may not feel comfortable relinquishing direct control over the document while the witnesses are signing.
  • FISA submits that the best way to deal with the situation is to list the drafting and execution of a Last Will and Testament as an essential service under the lockdown regulations.
  • In most cases, it will be entirely possible to take instructions for a Will and produce the Will without any need for the practitioner or the client to leave home.
  • In certain cases, for example in the case of an elderly or bed-ridden person, or someone without the necessary skills to communicate via online electronic means or to print out the Will, it may be necessary for the practitioner to be in the presence of the testator when taking instructions and/or delivering the Will.
  • With the signing of the Will in most cases, however, someone will have to leave home to be able to comply with the requirements of section 2 of the Act. FISA submits that this is better done in controlled circumstances and legally under the lockdown regulations than to leave it to every individual testator to try and find a way to get witnesses to sign the will in the presence of the testator. 

We would add two further possible solutions:

  • Where the testator/trix is hospitalised, two members of the medical staff could be requested to witness the client’s Will.
  • In the absence of a special dispensation, a court application can be brought to validate the Will, although not ideal and, of course, costly.

If you are interested in reading the complete FISA submission, click here.

We will keep you informed of the outcome of the submission. Please stay safe and remember our team of experts is on hand to assist and advise.

Expert Contributor: Chamonie Buys, Director, Johannesburg Office
For more information please contact one of our experts! 

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