Is an electronic will valid?

A recent Supreme Court of Appeal decision, which declared an email will to be valid, gave me pause for thought. Are “e-wills” the wills of the future?

Jacinta Bassuday, manager of Legal, Standard Executors and Trustees Limited, set about explaining the situation to me:

“In terms of South African law, for a will to be accepted as valid by the Master’s Office [a statutory body to which deceased estates are reported], it must comply with the Wills Act. The main requirements are that the will be dated and signed by the testator/testatrix and two witnesses in the presence of one another,” she says.

An email will would in the past be regarded as invalid, but in a landmark decision heard in September 2010 by the Supreme Court of Appeal in the case of Van der Merwe v The Master of the High Court and another, the court ordered that a will emailed by the deceased to his friend was valid.

The Supreme Court of Appeal overturned a decision by the South Gauteng High Court, which ruled that the deceased’s will was invalid as it had not been signed.

Bassuday explained the facts:

  • The deceased and Mr van der Merwe had developed a very close friendship which spanned over a considerable period and were regarded as each other’s confidantes.
  • The parties had relocated to different parts of the country but nevertheless kept in contact by visiting each other, travelling together and always maintaining contact via telephone and electronic means.
  • They had decided to execute wills in terms of which the other would benefit.
  • Both parties were unmarried and neither had immediate families.
  • The deceased had drafted his will and forwarded it via email to Van der Merwe for approval.
  • Van der Merwe had in his will appointed the deceased as his sole beneficiary.
  • Shortly thereafter, the deceased died without signing his will. At the time of his death, the will was still stored on the deceased’s computer.
  • In 2004, the deceased had signed an earlier will in which a different beneficiary was appointed.

The Supreme Court of Appeal had to decide whether the will drafted by the deceased but not signed was in fact valid.

The main point for consideration by the court was whether the deceased intended this document to be his will. The court also considered that the deceased had nominated Van der Merwe as his sole beneficiary to his pension fund, in keeping with his intention to benefit Van der Merwe.

The court placed a great deal of emphasis on the intention of the deceased and ordered that the deceased’s will was in fact a validly executed will.

“This case has set an interesting precedent as a will which was previously invalid if it did not comply with all the formalities could now be held as valid by the high court,” says Bassuday. “But all facts will be carefully considered before a court will accept such a document as valid.”

Essentially, according to Bassuday, a will that’s drafted electronically and sent by email can be regarded as a validly signed will if application is made to the high court. But to have this contested through an attorney is a lengthy, costly process.

Bassuday says that, to avoid complications, you should draft your will the old-fashioned, hard-copy way and have it properly executed in terms of the Wills Act. If you’re in doubt about whom to approach, the Fiduciary Institute’s website lists Fisa-registered practitioners who have to comply with minimum fiduciary standards.

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