The right to execute a will during lockdown and Covid19
Updated: May 3, 2020
An elderly person contacted me this week. The line was very bad, and unfortunately, she could not hear me very well. She urgently wanted a codicil to her will to be prepared and wanted to meet with me, but unfortunately this is not possible during lockdown. She also does not have access to a printer, and having no other viable option, therefore, we need to wait until lockdown regulations allow us to meet.
However, where does this leave everyone who wishes to execute a will or a codicil during this time?
It is known among legal professionals that for a will to be duly executed, compliance with the Wills Act 7 of 1953 is necessary. The Act requires that the will must be signed by the testator in the presence of two or more witnesses (who must be competent to witness the will). Those witnesses cannot be any person who stands to benefit from the will in any way (for example, the heir or the nominated executor). Such person may stand to forfeit their benefit in the event that they witnessed the will.
This creates a complicated scenario. The reality is, many people have realised the urgent need for a will, as it is often one of things that is "put off". However, being in lockdown, one cannot easily seek legal advice on preparing a will, and signing the will needs to be done correctly. If a testator meets with two independent witnesses, he/she risks contravening the regulations. I personally prefer meeting with my clients to take instructions on a will, as well as when signing the will, to ensure that the will is correctly signed in compliance with the Wills Act, and to further ensure that there are no defects.
The freedom to make a will or to attend to preparing a codicil, and to be lawfully allowed to have one prepared by a professional in this time, and to be signed without breaking regulations, is in my view a necessary right. I therefore respectfully call upon our honourable Government to add "preparing and drafting testamentary documents" as an essential legal service during this time. The consequences could be that many who pass away in the coming months, pass away intestate or with defective wills, or wills which do not reflect their current wishes due to being unable to access this legal service during this time.
This document reflects the views of the writer and should not be regarded as legal advice. We do not accept any liability for any act/omission arising from having read this article. The reader is instead urged to seek legal advice independently.