THE VALIDITY OF ELECTRONIC WILLS IN SOUTH AFRICA
In terms of section 4(4) of the Electronic Communications and Transactions Act 25 of 2002 (ECTA), a will that is signed electronically is not accepted as valid under South African law.
However, a will can be declared valid by application to the High Court in terms of section 2(3) of the Wills Act, as amended, which states that the Court must be satisfied that:
the document was drafted or executed by the deceased;
the deceased has died since the drafting or execution of the document; and
the document was intended by the deceased to be his last will.
In the case of Macdonald v The Master, the court held that the principal requirement to be satisfied is that, the person who executed the document, intended for same to be his final will. Further considerations were that only the deceased had access to the electronic device on which the document was located; only the deceased could have typed the said document and that there was no possibility fraud.
The court has however cautioned against the use of this judgment as a precedent for validating electronic wills in the future.
In Grobler v Master of the High Court, the court had to decide on the validity of an unsigned draft will in terms of section 2(3) above. The court concluded that it was not proven that the deceased had received and approved the document, drafted by his financial advisor, with the requisite intention that the draft be regarded as his final will.
Thus there exists uncertainty in law as to when data messages could be used for the purposes of conveying the last wishes of the deceased. Further, and although application can be made to the High Court for validation, the safest, and quickest way to conclude a valid will, would be to comply with the requirements as set out in section 2(1)(a) of The Wills Act 7 of 1953.
For further assistance/information, kindly email Phillip Silver Mathura at firstname.lastname@example.org