wills-why-the-law-has-to-modernise Wills: Why the law has to modernise

One of the consequences of the current Coronavirus crisis has been an influx of queries around estate planning and the drawing up of a will. But, asks David Thomson, CFP®, Senior Legal Adviser at Sanlam Trust, is South Africa’s will legislation out of date? Amid a time of crisis, arguably it’s no longer serving us as it should.

The ‘new normal’ has enabled many people more time to think, and any extra thinking time will undoubtedly involve concerns around personal finances and the future, including (if not especially) estate planning.

Unfortunately, almost 80% of South Africans don’t have a valid will in place, according to the Master of the High Court. This is extremely concerning given that a will is the most fundamental ‘tool’ within estate planning.

The limitations of our will legislation

The limitations imposed by the lockdown mean people can’t see their legal or financial planner in person, but, thankfully, with the help of technology, there are various ways these crucial conversations can still take place and ways for people to find out how to structure their last wishes.

The law in South Africa is governed by a very old piece of legislation, namely the Wills Act, 7 of 1953, last amended slightly in 1996. The law says that a will must be in writing – either handwritten or typed. It must be reproduced by a printing device on a material capable of being ‘signed’ by the person making the will (referred to as the testator or testatrix) and two witnesses. Signing includes the making of a ‘mark’ (by a person who cannot sign his or her name) duly certified as such by a commissioner of oaths.

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.