Covid lockdown highlights the need to bring Wills Act into the digital age

The latest statistics from the Master of the High Court reveal that 70% of South Africans do not have a will, despite all South Africans having the right to testation – the freedom to decide, within limits, exactly where our assets will devolve when we die.

Malissa Anthony, a fiduciary expert at Brenthurst Wealth Management, says every person who has something to leave behind should have a valid will to ensure that their estate is allocated to the beneficiaries of their choice.

If a person dies with no will being found or their will declared partially or completely invalid, the estate will be distributed in accordance with the laws of the Intestate Succession Act. 

“While the provisions of this act are generally fair, there are a number of problems that may arise,” says Anthony. Distribution may include people other than your children, and it may take some time for an executor to be appointed, and that executor may not be someone you would have chosen. “Extra and unnecessary costs are involved,” says Anthony.

The Wills Act stipulates certain formalities for a will to be considered valid in the eyes of law. In a nutshell, it states that the drafted document should be written on paper and signed in ink by the testator and two independent witnesses. All the signatories should be aged over 14 and of sound mind.

But the act was drafted way back in 1953, and last updated in 1996, so a prescription of paper and people in the same room suggests it hasn’t kept up with the times. 

And because it is not considered a legal agreement as it is not defined in the Electronic Communications and Transactions Act an e-signature is not allowed.

But Hilary Dudley, managing director at Citadel Fiduciary says obtaining wet signatures in accordance with the prescribed formalities was not easy to do during lockdown. 

“It was extremely difficult for our clients to execute updated wills as they could not find independent witnesses without breaking lockdown rules – and this was presuming that they had access to a printer to print a signature copy or that we could get a hard copy delivered to them. 

“Given the circumstances, a fiduciary industry body submitted a motivation to the Department of Justice for a workaround to allow the execution of wills to be declared an essential service, but to our knowledge nothing was done in this regard and no official guidelines [were] issued.” 

She did, however, let her clients sign their wills without witnesses, but provided for a signed statement, which concluded that the will was intended and the final version, and that the non-compliance was a consequence of the Covid-19 lockdown.

“The latter document was intended to serve as evidence in case of a court application being necessary.” 

She has, however, advised clients to re-execute their will as soon as they are able to sign it in front of independent witnesses.

“If a client had died and had not correctly re-signed their will, an application would then need to have been brought to the high court in terms of the rescue provisions in the Wills Act for the court to examine the evidence and see whether the document could be found to be a valid will in spite of not complying with the formalities,” she says. 

The strict formalities of the Wills Act were designed to mitigate the possibility of fraud, duress and undue influence in the signing of wills. But the Act doesn’t prevent this from happening, experts told Business Maverick. 

Dudley says the provisions could be brought into the digital age by having an option for digital execution in addition to the current process for execution by means of wet signatures. 

“This would need to be carefully considered,” she says, and done in accordance with formal and legal digital signing processes, which are currently widely available for the signature of agreements.

However, a digital will would need to consider a measure such as witnesses seeing the testator or testatrix sign by means of some form of video conference facility, she adds. BM/DM