Legal Articles

Many South Africans are wondering if executing a will during lockdown is possible and, if so, how can it be done while meeting all the legal requirements?

Executing a Will During Lockdown – The Wills Act South Africa

The COVID-19 pandemic has prompted many South Africans to make sure their estate is in order and part of this is executing a will or making sure their existing will is up to date with their instructions.

According the Wills Act, a will must be signed by you, two witnesses in your presence and the testator.

However, with social distancing measures in place, it has made executing a will during lockdown almost impossible. For this reason, the Fiduciary Institute of Southern Africa has submitted an urgent plea to the department of justice to consider having the drafting and execution of a will declared an essential service.

Requirements for a Valid Will in South Africa

According to The Wills Act, the following are requirements when executing a will in South Africa:

• The witnesses must be 14 years or older and must be fit to testify in court
• The witnesses must sign the will in the presence of each other and the testator
• The testator must sign the will in the presence of two witnesses or acknowledge his or her signature in the presence of the witnesses
• Any person who is an heir or beneficiary to a will is not permitted to sign as witness

Electronic Signatures and Executing a Will

Wills are excluded from the provisions made by the Electronic Communications and Transactions Act and therefore, an electronic signature cannot be used to execute a will.

So, many are left wondering how they can go about executing a will during lockdown when electronic signatures are not acceptable.

Executing a Will During Lockdown

Your will is the single most important aspect of estate planning and is something that every individual should have set up and updated when necessary.

If you are one of the estimated 80% of South Africans who do not yet have a valid will, here are a few ways that you can get your will executed during the lockdown in South Africa:

• If the testator is terminally ill and in hospital, he or she can sign the will in the presence of two nursing staff or other medical professionals who can also sign as witnesses should they feel comfortable to do so
• If you have a good relationship with your neighbours, you can hand the document to them over the wall as you confirm that it is in fact your signature on the document. They can then sign your will while you watch them through the fence or over the wall
• When neither of the above is possible, the testator will need to sign and date the will properly before drafting and signing a memorandum which clearly indicates that he or she was unable to get witnesses to sign due to the lockdown making it practically impossible. These documents should then be scanned and emailed directly to a fiduciary practitioner

Van Deventer & Van Deventer Incorporated – Attorneys South Africa

It’s no doubt that the COVID-19 pandemic has ushered many people across the globe to finalise their estate. 

Having a valid will is arguably the single most important part of estate planning and any person with assets and potential beneficiaries should have one in place.

For professional, legal assistance with your estate planning, including the drafting and executing a will during lockdown, please contact our attorneys.