- Witnessing of wills has become close to impossible at such a time when the law makes it mandatory that a witness be physically present when a testator (will-maker) is writing their will.
- The validity of a will is determined by the presence of witnesses declaring that the will was made by the will-maker on a certain day and that they were present when a will-maker made the will.
- A will must be attested by two or more competent witnesses.
Owing to the Covid-19 pandemic, attestation of wills while adhering to the requirements under the Succession Act has proven to be rather difficult.
This is because of the stringent measures such as restricted movement and social distancing, which have been put in place to curb the virus.
Witnessing of wills has become close to impossible at such a time when the law makes it mandatory that a witness be physically present when a testator (will-maker) is writing their will.
The validity of a will is determined by the presence of witnesses declaring that the will was made by the will-maker on a certain day and that they were present when a will-maker made the will.
A will must be attested by two or more competent witnesses. Each of the witnesses must sign the will in the presence of the will-maker.
Challenges during witnessing or attesting to wills
With the current lockdown, which has paralysed travel and movement of people, family members seem like the closest persons who can attest to wills because of the ease of access.
The law, however, mandates that witnesses to wills should not be beneficiaries in the estate of the testator (author of the will). This means that in the case that only family members are nearby to attest the will, the testator should be careful not to bequeath any part of the estate to the witnesses.
Over and above, it is clear that lawmakers while drafting the Succession Act could not have predicted the occurrence of these unprecedented times. Therefore, the Act fails to provide alternative means to attest wills.
Solutions implemented by other countries
In certain parts of the world such as New Jersey in the US, individuals can breathe a sigh of relief as they have implemented temporary regulations for governing attestation of legal instruments during the pandemic.
The Covid-19 (Signing of instruments) (Jersey) Law Regulations 2020 ( Regulations), which came into force on April 23, 2020, provides temporary arrangements to enable wills to be witnessed safely using audio and visual links if the required conditions are met. The regulations require all witnesses to:
See all the parties involved in the attestation by audio and visual links. All parties must see one another during the process, affirmatively identify each party present including the testator and
be satisfied, by whatever means, that the document being signed is, in fact, the true will.
In the case of a will of immovables, each witness and the testator must hear, at the same time, the will is read aloud in its entirety.
The law further provides that a witness who appears by audio-visual link must, as soon as is reasonably practicable after witnessing the signing of the will, provide the testator with a written declaration that the witness has witnessed the signing of the will in question over the audio-visual link and has compared to the regulations as earlier mentioned.
New Zealand has also come up with similar legislation namely, the Epidemic Preparedness (Wills Act 2007 — Signing and Witnessing of Wills) Immediate Modification Order 2020.
The law provides that wills may be signed and witnessed using audiovisual links. A testator must sign the will or direct another person to sign the document on his or her behalf in his or her presence.
Moreover, a testator may direct another person to sign a copy of the document on his or her behalf before him or her via an audiovisual link from a different location due to the epidemic notice in force restricting movement.
The witness of the will is required to make clear on the copy that it was signed through an audiovisual link and afterwards send a photograph or scan of the signed copy promptly.
Tennessee has followed the same footsteps in enforcing new laws regarding the execution of legal documents in light of the pandemic namely Executive Order No. 26, which its governor signed on April 19, 2020.
The order suspends in-person requirement for execution and attestation of wills and allows for remote execution of wills.
The order requires that the execution of the will must take place through real-time audio and visual communication where all parties can see and hear one another simultaneously. All parties involved must be located in Tennessee and the notary public must be able to verify the identity of the party signing an instrument that will be notarised, and the witnesses must likewise be able to identify the will-maker (testator) signing the will.
During real-time audio and visual communication, the testator and witnesses must positively identify the will and any other document being executed and witnessed.
Additionally, the document being executed must contain a provision stating that it “was executed in compliance with Executive Order No. 26 by Tennessee Governor Bill Lee, dated April 9, 2020.”
The execution, witnessing, and notarisation of the will and other estate planning documents must be memorialised by either signing the documents in counterpart originals during the videoconference or having the testator execute the documents during the videoconference and then circulating the originals for execution by the witnesses and notary within a 10-day period.
From the foregoing, it is clear that the rules in place in Kenya for attestation do not sufficiently address the issue at hand as it was not foreseen.
However, the temporary regulations in other countries remedy the situation and promote smooth operations for attestation of wills.
Suppose Kenya was to borrow from those states that have implemented the new regulations during the pandemic, a challenge might arise as most parties cannot access audio and visual links.
Access to technology that enables audio-visual communication is considered a luxury to many in most parts of the country.
The government has to ensure that each Kenyan has access to the internet through collaboration with the telcos in tandem with the amendment of the Succession Act of 1981 to permit attestation of wills through audio and visual communication.