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Drafting A Will During COVID-19 Lockdown

Drafting A Will During COVID-19 Lockdown

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Life in lockdown during the Covid-19 pandemic has given people time to reflect on their personal affairs, leading to an increase in numbers of people making and updating their Last Will and Testament in a bid to regain control over their lives.

With social distancing protocols however, having a will witnessed by two persons who will not be benefitting from it, and who are together at the same time, as prescribed by the Wills Act, could be difficult. A will cannot be signed electronically but a competent person, who is older than 14 and who does not benefit from it, may sign as a witness.

Print the will in duplicate, and then try and find two witnesses who are easily accessible, such as neighbours, or colleagues if you are back at work. Wash your hands, sign your will and put it in the agreed place shortly before the agreed time and ask them to use their own pens. Once signed and dated, store the original wills in a safe place until you are able to arrange for delivery of one copy to your nominated executor for safekeeping.  Keep a copy for yourself in a safe place and let friends and family know where to find it.

The Wills Act requires the following for the document to be legally binding:

·         Each page of the will must be signed

·         The same witnesses must sign throughout

·         People who may not sign as witness includes the following: 

–   Any beneficiary in the will and/or their spouses

–   The executors, trustees and guardians and/or their spouses

·         With each written/manual amendment to the will, the testator and two competent witnesses must also sign at each amendment on the will

Should a person die without having a will, or a will which is invalid because there are no or incorrect witnesses, the estate is to be administered in terms of the Intestate Succession Act, Act 81 of 1987. This can cause additional liability to the deceased estate amounting to R30 000 or more and the finalisation of the estate could be delayed due to fact that the matter has to be placed on the motion roll of the High Court which can take months.  Alternatively, where a previous valid will exists, the estate may be administered in terms of that will which may not be the true reflection of your last wishes.  To have the newest incorrect signed will be accepted as the last Will, an application to the High Court will have to be made in an attempt to declare the existing will valid. Finalising the estate could be delayed due to fact that the matter has to be placed on the motion roll of the High Court which can take months. 

There is nothing like a crisis to make you start thinking about getting your affairs in order, and preparing legal documents to ensure your personal wishes are carried out in the event of your death is the responsible thing to do, especially if minor children are involved.

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