POLOKWANE – Can an email qualify as a last will? The question was raised after a woman recently passed away and the family found out she had sent an email to her attorney.
In the email, she asked for amendments to be made to her will and for some of the beneficiaries to be removed. The attorney confirmed that he did not have the opportunity to draft a new will before she passed away.
DDKK Attorneys director Magdaleen de Klerk answers the question and explains the law.
“In South Africa, the requirements for a valid will is set out in the Wills Act 7 of 1953. The testator should be 16 years or older, the will must be in writing, and each page of the will document must be signed by the testator in the presence of two or more competent witnesses,” De Klerk explains.
Despite these requirements, Section 2(3) of the Act provides for a court to direct the Master of the High Court to accept a document as a valid will for purposes of the Administration of Estates Act, 1965 if it was intended to be the testator’s will or an amendment of his will. Courts will consider the facts of each case before they grant such an order.
De Klerk says our courts have decided that a literal approach should be used when they consider the word ‘drafted’ in that the document must have been prepared directly by the deceased in his personal capacity and not by a third party. Where a deceased has personally drafted a document, the intention can be seen to have been that the deceased intended the document to constitute his final will.
“This view has been taken even further and our courts found that even an electronically drafted document, which is unsigned but was shown to be personally drafted by the deceased and confirmed to have been intended to constitute a final will, can be regarded as valid. Even the absence of a signature was not an absolute bar to the document being regarded as a valid will with the emphasis being on the intention of the testator.”
A will, which was drafted by the bank of a terminally ill person who passed away before it was properly executed, is still a valid will based on the intentions of the deceased and the surrounding circumstances.
“Our courts are willing to find documents that express the intention of the deceased to be a valid will. However, there is no hard and fast rule and the circumstances of each case need to be carefully considered whether the intention of the deceased was to regard the document as a valid will. Should the validity of the will be in dispute, an application could be brought in terms of Section 2(3) of the Act and the court can be asked to establish whether the instruction constituted a valid will or not.”
