Covid-19 has seen many of us lose precious members of our family and community to this invisible enemy. While we can’t control the loss of life, we can ensure that the people we leave behind are cared for financially.
Covid-19 has forced us to revisit a very unpleasant place in our lives – who will inherit from our estates when we pass on? Now is the time to amend your will through a codicil or draft a will setting out your wishes and division of your assets.
The Fiduciary Institute of Southern Africa (FISA) has made 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. We are still to see a movement on this as yet.
Let’s take a look at what you need to do to execute a valid will:
1. All wills must be in writing.
2. The signature of the testator/testatrix must be at the end of the will. Signing includes the making of a ‘mark’ (by a person who cannot sign his or her name) duly certified as such by a commissioner of oaths.
3. The signature must be made in the presence of two competent witnesses. The law stipulates that a person is not allowed to inherit from someone if they wrote any part of the will in their own handwriting or if they sign as a witness. That means that if your family members act as witnesses, they cannot be your beneficiaries. So, you’ll need to find two other witnesses.
4. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other.
5. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/testatrix.
While the Electronic Communications and Transactions Act (ECTA), 25 of 2002, gives electronic signatures some legal force, it doesn’t have any power over the Wills Act.
The law in South Africa is governed by the Wills Act, 7 of 1953. This is outdated legislation which has worked to some extent but with the global pandemic we desire a digital approach. The execution of wills has not kept up with technological advances and it is evident that the time has come for South Africa to take the lead in amending our law to deal with the digitised modern era.
By encompassing the use of technology and legally recognising e-signatures as a way to validate Last Wills and Testaments, this 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 countries like Australia, the demand for wills has soared and in March alone a 300% spike in demand was recorded as a result of Covid-19.
Covid-19 has made the world do business differently and has opened the doors for the primary use of digitisation globally. South Africa can be a disruptor in this unprecedented time and move towards E-wills where clients can respond positively to the process. This would certainly be 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…
The world is shifting, shaking and shaping into a new digital era and its time South Africa caught up.
By Ugeeta Pala, Attorney and Mediator at Ugeeta Pala & Associates, 071 096 5966, ugeeta@pala.co.za.