The Wills Act, 7 of 1953 requires the following for the proper execution of a valid will:
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.
Important points to take note of:
- Electronic signatures will not be a valid way to execute a will;
- 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.
Execution of a valid will under the lockdown 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 neighbors is such that you are comfortable to request their assistance, they can sign as witnesses while complying with the requirement that the signing by the witnesses and testator must be in the presence of each other (please adhere to social distancing requirements);
- While the SA Police Service (SAPS) is classified as an essential service and having copies of documents certified or affidavits solemnized 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 your Attorney and / or 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.
