Socially Distanced Witnessing

The last few weeks have seen huge changes in the way we live our lives. The demand for wills has surged during the COVID-19 pandemic, which is understandable in the midst of a grave health crisis.

As attorneys, we are able to work from home and have access to the necessary technology that enables agile and secure working, meaning that we are able to engage with and service clients as we would in the office. Instructions can be taken telephonically or by email and the drafted will can be sent to the client by email for approval and amendment.

Once the contents of the will have been finalised, it has to be signed. The Wills Act, 7 of 1953 (“the Act”), requires the following for the proper execution of a valid will:

“2. Formalities required in the execution of a will.

(1) Subject to the provisions of section 3 bis

(a) no will executed… shall be valid unless

(i) the will is signed at the end thereof by the testator…; and

(ii) such signature is made by the testator…, in the presence of two or more competent witnesses present at the same time; and

(iii) such witnesses attest and sign the will in the presence of the testator and each other…; and

(iv) if the will consists of more than one page, each page other than the page on which it ends is also signed by the testator… anywhere on the page.”

As far as the competency of witnesses are concerned, the Act reads as follows:

“4A. Competency of persons involved in execution of a will.

(1) Any person who attests and signs a will as a witness… or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will, shall be disqualified from receiving any benefit from that will.”

A beneficiary to a will should not sign as a witness, because he/she will then be disqualified from receiving any benefit from that will. Anyone who signs a will as a witness is disqualified from receiving any benefit under the will. A benefit includes nomination as executor, trustee or guardian. 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.

Thus, a person creating a will and two competent witnesses have to be in the same place and all sign the document to ensure it is valid. During the lockdown, the two-witness rule is hindered by social distancing and is creating practical – but not insurmountable – challenges. People with existing health conditions and the elderly are the most likely to want to sort out their will right now, but they are also the most threatened by close contact with others.

Several clients have enquired about practical ways to have wills signed during the lockdown. One option would be to sign your will outside in the presence of two neighbours who are not displaying coronavirus symptoms. They should remain at least two metres away from you, in a place where they are still able to see you sign the will. The witnesses also need to sign the will so you would then place it in a convenient spot visible to all parties and move away. Both witnesses could separately approach and sign and as long as precautions are taken such as using your own pens, making no physical contact, wearing gloves, conducting the process quickly, and adhering to strict handwashing measures afterwards.

Another option would be for you to approach two essential workers, many of whom are risking their lives to continue serving the country. For instance, when attending the local supermarket for your essential requirements — such as food — or when attending the pharmacy for medication, request the workers there to witness your will. If a terminally ill patient in a hospital wishes to sign a will, it should be possible to arrange for the will to be signed in the presence of two nursing staff members.

In circumstances where none of the above is an option and there is absolutely no other way to validly execute the will, the common sense approach would be to date and sign the will properly and draft and sign a memorandum or letter making it clear why the will was not signed by witnesses but stating that the will is intended to be the last will and testament. This course of action will make an application under Section 2(3) of the Act, to validate such a document as the will of the deceased, much more likely to succeed.

Section 2(3) of the Act reads as follows:

“2. Formalities required in the execution of a will.

(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 66 of 1965, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

In order to ensure that the will is valid and to avoid the delay and expense of a High Court application, we invite clients to come and see us once things are back to normal to review and, if necessary, re-sign their wills. These are highly unusual circumstances, so wills written during this time may well need to be revisited in the future.

Reference List:

• https://www.justice.gov.za
• https://www.moneyobserver.com
• https://www.legalcheek.com
• Wills Act, 7 of 1953.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)