Neither the Wills Act 7 of 1953 nor the Electronic Communications and Transactions Act 25 of 2002 make provision for electronic wills, which are wills drafted, executed and stored electronically (also known as digital wills or e-wills).
The Wills Act came into operation in 1954, at a time when computers were not yet commonplace, and handwritten wills were the standard practice. The Act only recognises one form of will, which is the so-called statutory (underhand) will. This type of will requires a written, signed and attested document (a paper document containing wet signatures). The Electronic Communications and Transactions Act facilitates electronic communication and transactions. It legally recognises electronic documents and signatures. Despite being in force since 2002, the Act specifically excludes wills from its regulatory framework.
In 1992, an important development occurred regarding the Wills Act in South African law. Section 2(3) of the Wills Act introduced a condonation provision, which gives the courts the power to accept a document as a will that does not meet the formal execution requirements of the Wills Act. The condonation provisions provide an ideal platform to start exploring how to deal with e-wills. Unfortunately, in cases involving e-wills, both the High Court and the Supreme Court of Appeal missed the opportunity to set a precedent in MacDonald v The Master 2002 (5) 64 (O) and Van der Merwe v The Master 2010 (6) SA 544 (SCA). Although both courts acknowledged that the documents were in electronic form, they allowed the paper printouts of the documents to be condoned and did not address the important issue of how to handle wills that exist only in electronic form.
The lack of precedent most likely resulted in the unfortunate recent case of Dryden v Harrison (WCC) (unreported) case number 11912/17 of 20 May 2019), where the High Court refused to condone an e-will (an email will) despite the fact that the subject line of the email contained the words, “final will”, and that the initial sentence of the email read: “this serves as my final will and testament”.
We can learn valuable lessons from the US and Australia concerning electronic wills. In the US, some states have accepted electronic wills, providing a legal basis that acknowledges the validity of digital documents. This adaptation addresses the changing needs of technology and society. Similarly, Australia has adopted a flexible approach to the condonation of electronic documents, allowing for a broad definition of the concept of a document to include various electronic forms, including emails. By examining these progressive models, we can better understand how incorporating electronic wills into our legal systems could improve efficiency, accessibility and the overall effectiveness of estate planning. This would ultimately ensure that individuals’ wishes are respected in the digital age.
Despite the absence of substantive law governing electronic wills, individuals are making them. South African law must address this development seriously, not only to stay relevant but also to keep up with international e-will trends.
