It is always advisable to review your Will on at least an annual basis. The current Covid-19 crisis might have prompted you to do this sooner, or maybe it has even prompted you to create a Will for the first time.
Either way, there are clear requirements for the signing of a Will. As stipulated in the Wills Act, such a document is only valid if it is signed at the end, or at the end of each page if multiple pages, by the testator or testatrix, as well as by two competent witnesses. Furthermore, signature must take place in the presence of each other. If the document is not signed in accordance with the Act, the Will might be declared invalid. The only way to remedy this is for the heirs to go through a complicated legal process of proving intent by the deceased testator. This could be a costly experience, especially for a smaller estate.
Here’s where it becomes tricky – how do you get your Will signed correctly during the current lockdown period?
Be mindful of your beneficiaries
The Act is very clear that signature must take place in the presence of all parties, but it’s also clear that any person named in the Will and who signs as a witness will be disqualified from receiving any benefits!
With this in mind, beware of asking your spouse or other family members in your household to act as witnesses – you might be unintentionally cutting them out. If you are adamant that they should be witnesses, there are ways to ensure that they’ll still inherit regardless of your Will, but this is not a simple process and we recommend that you speak to your financial advisor or estate planner should you wish to go down this road.
How to sign during lockdown
If your industry is considered an essential service and you are permitted to work, and if you have a good relationship with your co-workers, you could request two colleagues to act as witnesses.
Similarly, if you are admitted to hospital, you are legally permitted to request the nursing staff or medical staff to witness your Will. However, it is imperative that the testator be fully aware of the document being signed – any questions surrounding the mental state of the testator at the time of signing may result in the validity of the Will being compromised.
Do you have a good relationship with your neighbours? You are legally permitted to ask them to witness your Will by passing the document through a fence or a gate while keeping a safe distance. All persons must be able to see the document being signed, and “witness” each other signing, so passing it back and forth over a wall would not suffice.
Under normal circumstances, a police officer is also allowed to witness affidavits or commission documents, but it is unclear whether the police will still be offering this service as it is not likely to be considered an essential part of their duties during lockdown.
Or wait until it’s over…
Don’t stress too much if you are unable to get your Will witnessed as above. You should definitely still make sure you have a Will in place, especially if it’s your first or if you are replacing a very outdated document.
In the absence of witnesses, we suggest that you sign your Will and write an additional letter confirming that you intend the document to be your Last Will and Testament, and that it should replace previous versions if applicable. You should further note that you were unable to have the document witnessed due to the Covid-19 lockdown regulations. This will not be enough to meet the provisions of the Act, and should you pass away, your heirs will still have to approach the court for confirmation. But by clearly stating your intention, you will dramatically increase the chance of the application being successful.
This is a good stop-gap measure, but once the lockdown is lifted and when it is safe to do so, we strongly recommend that you ensure your Will is properly signed and witnessed to prevent any future complications. Nobody wants to spend upwards of R30 000 on a court application just to prove a signature!