Next week (September 12 - 16) is South African Wills Week, and according to the Master of the High Court, almost 80% of South Africans don’t have a valid will in place, which made the fact that thousands of people were unable to draw up a will during the strict Covid lockdown, and a rising death rate, even more concerning.
A will is the most fundamental and first ‘tool’ of any estate plan, according to industry experts.
The Wills Act states that the drafting of a will must be witnessed by two people (broadly) who are not mentioned in the will. When people were in lockdown with only their family members, securing appropriate witnesses was a challenge.
Those who were fortunate enough to have a printer at home could – in the midst of social distancing and lockdown – find two competent witnesses.
By law a witness is not allowed to inherit from someone if he or she wrote any part of the will in their own handwriting, or if he or she signs as a witness.
So, you would need to find two other witnesses who weren’t beneficiaries and they would have to have been present when you were signing your will. You would also have to have found a commissioner of oaths to come to your home to certify your will.
David Thomson, senior legal adviser at Sanlam Trust, says South Africa’s will legislation is out of date, and in a time of crisis it was arguably no longer serving us as it should.
The law in South Africa is governed by a very old piece of legislation, namely the Wills Act, 7 of 1953, last amended slightly in 1996.
It 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.
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.”
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.
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 said, and done in accordance with formal and legal digital signing processes, which are widely available for the signature of agreements.
Our courts have, in the past, accepted an electronic document created by a person and stored on the hard drive of their computer as their valid will, but such cases have also been rejected in the past, based on the evidence as to the deceased’s intent. This makes them unreliable.
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.
As if the digitisation of wills is not enough, estate planning is further complicated by the transfer of digital assets and the need for access to online profiles and platforms post-mortem.
”It makes sense to name someone — your legal executor or another trusted person — to be your ‘digital executor’ to manage your online accounts and digital property after your death,“ said Malissa Anthony, fiduciary expert at Brenthurst Wealth Management.
She says the responsibility may include:
- Archiving personal files, photos, videos and other content you’ve created.
- Deleting files from your computer or other devices, or erasing devices’ hard drives.
- Maintaining certain online accounts, which may include paying for services to continue (such as web hosting services).
- Closing certain online accounts, such as social media accounts, subscription services or any accounts that are paid for (such as Amazon Prime).
- Transferring any transferable accounts to heirs.
- Collecting and transferring any money or usable credits to your heirs.
- Transferring any income-generating items (websites, blogs, affiliate accounts, and so on) to your heirs.
“Passing on your user names, passwords is essential. With many digital assets, privacy policies will prevent survivors from accessing your accounts without them,” she concluded.
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