Wealth Advisory Newsletter

Where is your original Will?

By Jocelyn Manda, Fiduciary Specialist at PPS

Some people dread contemplating what will happen to their loved ones after they have passed on. Talking about it is worse. Up until recently, we could live happily in subconscious denial of our mortality. The COVID-19 pandemic has brought the subject of death to the fore. It is all around us and we cannot ignore it. The pandemic has shown us that tragedy can strike at any time and has been an excellent reminder to make sure all one’s affairs are in order. This includes the making of a Will and the safekeeping thereof. 

In his book, The Drafting of Wills, Harry Barker wrote that the making of a Will is “one of the most solemn and sacred juristic acts a person can perform. A Will represents a person’s last wishes and allows him to give expression to his gratitude towards, his sense of responsibility to and his concern for the welfare of those whom he leaves behind.”

Not having your affairs in order can become a significant challenge for your family to deal with, especially at a time when they already have so much else to cope with. It is about having made a Will and keeping the original in a safe place. Many have signed a Will, but their relatives are unable to locate the original following their death. 

The scenario below is a classic example of what might happen. 

"My father passed away on 11 January 2021. While he was alive, Mr X assisted him in drafting a Will, and he appointed Ms X as the executor of his estate. After his passing, we cannot find the original document, and we only have a copy at hand. The nominated executor advised that my father never handed them the original and unless we can provide it, they will be unable to assist us. My stepmother has been very uncooperative and will not let us know whether or not she reported the estate. Unfortunately, I live in a different province, making it difficult to find out on my own. My stepmother refuses to acknowledge the copied Will, as it contains some clauses, not to her liking. She has also been driving my father’s cars. These are now part of the estate, and I believe they should not be driven. She also withdrew money from his bank account after his death. I have since notified the bank of his passing and they have frozen the account. I would like to know what steps to take next.”

This client finds himself in a challenging situation, as the only way to have a copy acknowledged as an executable Will, is by making a High Court application for the acceptance of the copy of the Will. 

In the absence of a court application, or should the application to court be unsuccessful, the estate will be distributed according to the Law of Intestate Succession, which may not be the testator’s intention. Alternatively, the previous original Will is accepted as the deceased’s last Will, even though the circumstances may have changed since then. Not only is an application to the High Court a costly process, but it is also a lengthy process. It has become an area of concern to execute valid Wills during the lockdown. 

Another complication that may arise due to COVID-19 restrictions is accessing a printer or independent witnesses to sign with the testator. Most of the people in your home are probably heirs in your Will and should not sign as witnesses. 

The Wills Act requires the following for the proper execution of a valid Will:

• A hard-copy document is required, meaning that it must be printed out.

• Sec 2(1)(a) of the Act provides the following:

- The testator must sign the Will in the presence of two witnesses;

- The witnesses must sign the Will in the presence of the testator and of each other; and

- The witnesses must be 14 years or older and must be able to testify in Court.

Electronic signatures will also not be a valid way to execute a Will, as a Will is expressly excluded from the provisions of the Electronic Communications and Transactions Act, 25 of 2002.

A person can receive a drafted Will via courier to obviate printing issues. The witnesses can be neighbours, domestic employees, work colleagues, friends or two individuals who meet the requirements for witnesses.

Remember, if you, for whatever reason, are unable to access the original Will, you must make a court application to get your copy recognised. Also, for your Will to be valid, it must be printed, signed and witnessed by recognised persons.  

PPS Wealth Advisory | Beyond Wealth. 

Kindly note that this article does not constitute financial advice; the information provided is purely informational. In terms of the Financial Advisory and Intermediary Services Act, an FSP should not provide advice to investors without an appropriate risk analysis and thorough examination of a client’s particular financial situation. The information, opinions and any communication from PPS Insurance, whether written, oral or implied are expressed in good faith and not intended as investment advice, neither do they constitute an offer or solicitation in any manner. PPS is a licensed Insurer and authorised Financial Services Provider (FSP 1044).