The Wills Act No 7 of 1953 prescribes how a Will has to be signed by a testator and 2 witnesses for it to be accepted by the Master of the High Court as a valid Will. After the death of a testator, his Will has to be lodged at the Master as part of the process of reporting the deceased’s estate.
For a Will to be validly executed the Wills Act requires these rules to be followed:
- a) The testator must sign every page and at the end of the Will, in the presence of two witnesses or acknowledge his or her signature in the presence of the two witnesses.
- b) The witnesses must also sign every page and at the end of the Will, in the presence of the testator and of each other.
- c) The witnesses must be 14 years or older, must be able to testify in court and may not be a beneficiary under the Will.
A person who has signed a Will as a witness or who wrote any part of the Will by hand or who signed on behalf and by direction of the testator, is disqualified from receiving any benefit under the Will. In most cases the family members or other occupants of the testator’s home would usually not qualify to sign as a witness to the Will.
Electronic signatures are not a valid way to execute a Will. The Electronic Communications and Transactions Act (ECTA) contains no provision for the signing of a Will electronically.
However, during lockdown or social and physical distancing, a Will can be validly executed in the following ways:
(i) If both you and your neighbours or other persons working or living in the same facility, are willing to participate, the Will can be signed by you while they look on from a safe distance, whereafter you can stand away or place the document where the witnesses can access it. You can then view the witnesses signing the Will and make the document available to you for safekeeping.
(ii) Essential services members might be willing to assist you in executing your Will properly during this time. This could include medical staff and/or members of the law enforcement services.
Finally, if no witnesses are available or willing to assist, the testator can sign his Will fully and also write on the document, or in a separate document accompanying the Will, explaining why the Will was not signed by witnesses and that the document constitutes his/her last Will. Preferably the Will and the additional explanation should be made available to the testator’s attorney, at least electronically. Although this method is not full proof, a High Court would take favourable consideration of this method when required to rule on whether the deceased Will can be accepted as his/her last Will and Testament.
Chris Fick & Associates Inc. – April 2020