COVID-19 health check for the wills act

Johann Jacobs, a consultant in Cliffe Dekker Hofmeyr’s Trusts and Estates Practice

Every aspect of life has been affected by the COVID-19 crisis, and estate planning is no exception – especially the execution of wills.

While the exact rules for the execution of wills vary from jurisdiction to jurisdiction, the pandemic confronted all with the same problem: Complying with rules of formality while adhering to lockdown restrictions.

While some jurisdictions were quick and decisive in dealing with the issue – promulgating interim legislation and granting concessions to relax the requirements in respect of signing – no such steps were taken by the South African legislature.

Despite the precautions and restrictions of movement placed on individuals, most practitioners have – with the benefit of technology – been able to give and take instructions, and even prepare and produce wills. However, the execution of the wills; colloquially referred to as the ‘signing’ of the will, has presented a greater obstacle.

This is because the minimum legal requirements for validity include that the will must be signed by the testator in the presence of two witnesses. Here lies the nub of the problem: Would-be testators may find it difficult, to safely be in the presence of individuals outside the circle of their immediate family during the lockdown. To complicate matters, family members may not be suitable witnesses, because section 4A of the Wills Act determines that a beneficiary is disqualified from benefiting from a will if they signed it as a witness.

Numerous solutions have been proposed to this problem, which Jacobs says can be divided into three approaches:

Physical solutions

These options consist of variations of a plan where participants are spaced far enough apart to comply with health concerns and regulations, but close enough to be able to see each other sign the document. Further precautions include introducing an artificial barrier between the parties, thereby further limiting physical presence while not compromising visual sight, and staggering the signing events into three different stages to prevent contamination. This solution, however, requires all parties to be present on each of the three signings, making this method rather arduous.

Virtual solutions

Such solutions suggest that the testator and thereafter each of the witnesses sign the document in their own home with the aid of technology, such as Skype, Facetime or Zoom. Because the same document must be signed, this process must also be staggered, with the added logistical requirement of getting the same document to the three venues after the elapse of a certain time. However, the fact that the actual physical document would not simultaneously be in all the parties’ presence may dilute the evidentiary purpose of execution. In this instance then, the virtual world may not prove to be the solution as it has in other spheres.

Post-event condonation (solutions)

In certain circumstances, the testator may have had no option but to knowingly leave a document that does not – even on the face of it – satisfy the mandatory requirements for validity. This would typically arise where there were no witnesses or only one witness available, or where only members of the same household (who are also named as beneficiaries) are available to sign as witnesses. The solution offered is that the testator, in anticipation of a challenge, prepares an affidavit to set out the circumstances of the execution, explaining why the formalities were not complied with, while unequivocally reiterating his intention that, despite these inadequacies, he intends the document be his will. 

Our law does not allow for informal validation, nor can the Master of the High Court pardon an irregular will, and therefore such a question would have to be brought before a High Court to adjudicate. This solution is thus premised on the relief provision set out in section 2(3) of the Wills Act – a condonation provision introduced into our Law by the Testamentary Amendment Act of 1992.

A call for legislative reform

While there are still some testators, in self-enforced isolation and hesitant to have outside exposure, that continue to grapple with this problem, the recent relaxation of lockdown restrictions alleviates many for the vast majority of citizens.

Nevertheless, I believe that the testamentary issues presented by COVID-19 should hopefully act as a catalyst for the legislature to reconsider the formalities set out in parts of the Wills Act. Although this reprieve is very welcome, it will not save would-be testators and fiduciary practitioners from experiencing these same conundrums in the future. Having slowly regained some normalcy in our lives, none of us want to consider the possibility of resurgence of the virus, future viruses or other catastrophes, but such events would re-expose the issues and limitations that COVID-19 revealed in our legislation.

Our legislature should therefore take the opportunity to reconsider the Wills Act in the quiet after the storm and not in the urgency of the next ones.