If you are fortunate to have a printer at home, you must – in the midst of social distancing and lockdown – find two competent witnesses. By law a witness is not allowed to inherit from someone if he or she wrote any part of the will in their own handwriting, or if he or she signs as a witness. So, you’ll need to find two other witnesses who aren’t beneficiaries and they must be present when you sign your will. You’ll also have to find a commissioner of oaths to come to your home to certify your will.
Section 2(3) of the Wills Act, referred to as the ‘rescue provision’, allows the High Court to direct the Master to accept a document, or an amended document, as a will for the purposes of the Administration of Estates Act, even though that document does not comply with the formalities described above. However, it’s prudent to not rely on this route. An application to court will involve legal fees, potentially a long delay in the winding up of the estate and offers no guarantee of success.
A need for a more modern means
At the moment, so-called ‘audio’ and ‘video’ wills do not constitute ‘writing’ and are therefore not valid.
Our courts have, in the past, accepted an electronic document created by a person and stored on the hard drive of their computer as their valid will, but such cases have also been rejected in the past, based on the evidence as to the deceased’s intent. This makes them unreliable.
While the Electronic Communications and Transactions Act (ECTA), 25 of 2002, gives electronic signatures some legal force, it doesn’t have any power over the Wills Act. A will is not seen as an electronic agreement, whereby an electronic signature could be recognised by the court (as in the Spring Forest Trading v Wilberry (Pty) Ltd judgement of 2015).
Is it time for the law to change?
Has the time come for South Africa to take the lead in amending our law of wills to deal with the modern era?
Noted authorities have pointed out how the Wills Act needs to adapt to evolving technology* and convincingly argued** that the formality requirements of the Wills Act, 7 of 1953, for validly executing a will have not kept up with technological advances. Perhaps now is the time for the law to catch up.
*Sylvia Papadopoulos of the University of Pretoria: ‘Electronic Wills with an Aura of Authenticity’.
**Van Staden and Rautenbach (2006)