Why it is extremely difficult to legally execute a will during lockdown
In terms of the Wills Act, a will needs to be signed by you and — in your presence — two witnesses who cannot benefit from your will
If, during lockdown, you want to draft a will, change your will or nominate guardians for your children, you have good reason to feel helpless. None of this is possible during lockdown, when we’re required by law to practice social distancing.
In terms of the Wills Act, a will needs to be signed by you, the testator or testatrix, and two witnesses in your presence. And your witnesses may not be anyone who stands to benefit from your will.
The social distancing requirements in lockdown have made it impossible to execute a will legally, prompting the Fiduciary Institute of Southern Africa (Fisa) to make an urgent submission to the department of justice and constitutional development to consider having the drafting and execution of a will declared an essential service under the lockdown regulations.
Louis van Vuren, the CEO of Fisa, says the organisation is receiving queries daily from professional fiduciary members asking how wills can be executed in a time of lockdown.
David Thomson, a certified financial planner and a senior legal adviser at Sanlam Trust, says almost 80% of South Africans don’t have a valid will in place, according to the Master of the High Court.
“This is extremely concerning given that a will is the most fundamental ‘tool’ within estate planning,” Thomson says.
He says SA’s will legislation is out of date and no longer serving us.
Alex Simeonides, the CEO of Capital Legacy, a wills and estate administration company, says lockdown has created “many challenges and unusual conditions”.
Not everyone is able to print their wills to sign them, and there’s a high likelihood that the people you are in isolation with are beneficiaries to your wills and can therefore not sign as witnesses, he says.
But there are ways around this, he says. “Our clients are advised to seek out two independent witnesses. For example, they can seek out two shop tellers at their local grocery store to witness their wills and request a courier to deliver an original signed copy to our offices.
“Or if they’re comfortable with their neighbours, request that the process happen over their boundary wall.
“Clients are responding positively; however, the process would be all the more effective for clients if they were able to update their wills using an electronic signature and witnesses could add their signatures to the document digitally, using secure digital signing.”
He says Capital Legacy has been lobbying for digital signing to be allowed on wills and the lockdown is a prime example of why this should be considered.
“By harnessing technology and legally recognising e-signatures as a way to validate Last Wills and Testaments, regulators could make it easier for more South Africans to provide financial security to their families, protect their legacies and plan for their futures in a very uncertain time.”
In some countries the demand for wills has soared — Australia reportedly experienced a 300% spike in demand in March alone — as a result of Covid-19.
Simeonides says that while drafting a will has always been a priority, the pandemic has forced people to come face-to-face with why it’s important.
“It has focused everyone’s attention on the possibility of passing away and the uncertainty of life. During lockdown, people also have more time to focus on getting their personal finances sorted and realise that a valid and up-to-date will is one of the most important financial documents to protect their legacies.”
He says October to November is traditionally the busiest time of year for Capital Legacy, when it receives just over 3,900 direct inquiries, while January to March is usually the quietest time of year. Yet in the first quarter of 2020 the business received more than 3,800 direct inquiries.
While he doesn’t want to assign growth stats to anything in particular, he says the sentiment is that awareness levels are higher than normal, and people have a desire to get their affairs in order.