By Hasesha Naidu
I was posed with a very interesting question from a client – does a video recording constitute a Will?
The testator was in his hospital bed about to undergo a major and risky medical procedure. He was further unable to write or sign. He recorded a video on a cell phone in the presence of two witnesses and advised in the video that he recorded the message freely and voluntarily and in his sound and sober mind. He was under no anaesthesia or medication at the time and had full mental capacity. He assumed that this recording would act as his last will.
At the outset, I advised that in accordance with South African law, a valid will is a signed document. Which ultimately infers that all wills must be in writing and signed by the testator and since a video cannot be signed, a video recording cannot constitute a valid will. Should the recording come with a valid will contained in a document then both of the items can be read in tandem with the written document deemed the valid will.
Hollywood may be the one to blame for the misconception, although there are some states in United States of America that allow for video recordings to constitute as valid wills. However, there are strict and rigid rules that must be applied before the recording can be considered a valid will, including that the testator must die soon thereafter. In South Africa, things are different with the laws dictating that a will must be in writing and signed by two witnesses and the testator. The formalities are also quite strict and where the testator cannot write or sign, there are even more strict rules to adhere to. One of them being that should a testator not be able to sign on their own or only be able to use a mark instead of a signature, that a certificate by an attorney be produced together with the will stating that the will is indeed that of the testator.
It is advised that wills are drafted quite early in a person’s lifetime, despite the topic being taboo. A person can amend or renew his or her at any point of their lifetime. In this case, is it important to date every will so that the last will is easily identified. It is also advised that when a person intends on amending a will, that they in fact draft a new will all together. Amending a will also requires formalities and should the formalities not be followed, there is a risk that those amendments may not be deemed valid and enforceable.
That being said, we at H & L Legal encourage people to have their wills professionally drafted for peace of mind and to ensure that their estate is distributed correctly and according to their will.
You can contact Hasesha Naidu at HL Legal:
The details are:
Telephone: 031 – 8305299 or Cell: 082 418 4021