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 will now 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/attesting to wills.
With the lockdown that has paralysed the travel and movement of people, family members seem like the closest persons who can attest to wills because of the easy of access. The law however mandates that witnesses to wills should not be beneficiaries in the estate of the executor (author of the will). This means that in the case that only family members are nearby to attest the will, the executor should be careful not to bequeath any part of the estate to the witnesses.
Over and above, it is clear that law makers while drafting the Succession Act could not have predicted the occurrence of these unprecedented times and hence the Act fails to provide for alternative means to attest wills.
Solutions implemented by other countries.
In certain parts of the world such as New Jersey in the United States, 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 23 April 2020, provides temporary arrangements to enable wills to be witnessed safely by means of an 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 each other 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 read aloud in its entirety.
The law further provide 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 audio-visual link and has compared to the regulations as earlier mentioned.
New Zealand has also come up with similar legislation to New Jersey in the United States of America under The Epidemic Preparedness( wills Act 2007- Signing and Witnessing of Wills) Immediate Modification Order 2020. The legislation provide that Wills may be signed and witnessed using audiovisual links and a will maker must sign the will or
direct another person to sign the document on his or her behalf in his or her presence. Also a will maker 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 another place because an epidemic notice is in force. The witness of the will is required to make clear on the copy it is signed through a audiovisual link and afterwards send a photograph or scan of the signed copy promptly.
Also, Tennessee has enforced new laws regarding legal documents in light of the pandemic. Executive Order No. 26 was signed by the Governor on 19
th April 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 by means of real time audio and visual communication where all parties can see and hear each other 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 notarized, and the witnesses must likewise be able to identify the will maker (testator) signing the will. During the real time audio and visual communication, the testator and witnesses must positively identify the will and any other document being executed and witnessed.
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 notarization of the will and other estate planning documents must be memorialized 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.
Conclusion
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 but 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 allows audiovisual communication is considered a luxury to many in most parts of the country.
The government has to therefore make sure that each Kenyans has access to the internet through collaboration with the telecommunication companies in tandem to the amendment of the Succession Act 1981.
