IS AN E-WILL VALID IN SOUTH AFRICA?

In terms of South African law, for a will to be accepted as valid by the Master of the High Court (a statutory body to which deceased estates are reported), it must comply with the legal formalities as set out in section 1(a) of the Wills Act, 7 of 1953 (hereinafter referred to as the Wills Act).

The main requirements in terms of the Wills Act are that the will must be signed by the testator and two competent witnesses, all in the presence of one another. Non-compliance with the formal requirements of the Wills Act will render the will invalid and void. Please note that a certified copy of a signed will is not valid as the Master of the High Court will only accept an original signed will.

An electronic will is a will saved as a data message, email or word document on a hard disk or memory device. This type of will is usually typed on the computer/email/data message, but there is no actual signature which allows the law to recognise the document as authentic.

The legislator saw a need for a court to be able to declare a will valid even though it does not comply with the formalities of the Wills Act and added section 2(3):

“(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1955, as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1)”

Therefore, a will that is drafted electronically can be regarded as a validly executed will if application is made to the High Court and the court is satisfied that (a) the document was drafted by the deceased (b) the deceased has died since the drafting of the document and (c) the document was intended by the deceased to be his last will.

Currently, there is no legal certainty as to how and when electronic data can be used for the purpose of conveying your final will. Until the Wills Act is amended to include electronic wills, it would be best, if you wish to avoid complications, to draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act.

If you have any questions please contact our Estate Advisor, Inge Heath, at inge@asl.co.za.