What Makes a Will Valid?

In a world of digital communication, South African law has been playing catchup to keep current with new technologies. Only as recently as 2002, under the Electronic Communications and Transaction Act, has electronic signatures been recognised. Unfortunately, the law of succession has lagged behind and the requirements for a valid Will have remained relatively unchanged since the Wills Act 7 of 1953 as amended from time to time (‘the Wills Act”). Further, the Master of the High Court still requires an original valid Will when reporting the estate.

A Will is valid only when it complies with the formalities set out in the Wills Act. If Will does not follow the formalities, there is a ‘rescue provision’ which enables the High Court to find that document to be a valid Will. The court, however, applies a strict and narrow approach to what is allowed. All the requirements for a valid Will shall not be worked through here, rather three requirements will be briefly focus on prevents an email, electronic document, voice note or instant message from being accepted as a valid Will. Further the need for an original physical Will to be kept in storage will be stated.

 

The Will must be a written document

The Wills Act does not expressly require that the document be written and in physical form, it is however, implied from the requirements that the document must be signed in certain places by the testator and witnesses together with the reference to pages. Further at the time of the drafting of the Wills Act electronic written documents did not exist.  This unfortunately results in a narrowing of what will be normally be considered a valid Will to a written document in physical form.

 

The Will must be signed and witnessed

The Wills Act requires that a document purporting to be a Will must be signed[1] first by the testator and then by two witnesses who are all present at the same time. Each page of the Will must be sign by the person executing the Will together with the two witnesses. Furthermore, the Will must be signed at the end by the testator and two witnesses to be valid.  This has the result of precluding voice notes, instant messages, and emails from being accepted by the Master of the High Court, as they cannot be executed and witnessed in the require way.

 

The Will must be original

If the original version of your Will cannot be located it will be presumed that you died without a valid Will. This means that the laws of intestate succession shall apply. This precludes an electronic copy of your Will from being accepted by the Master. If there is an electronic copy of the original Will, the High Court must be convinced that the document is in fact a true copy your latest valid Will. Therefore, the storage of your original Will is important, and you loved ones should know where it is located. For this reason, GalileoWills securely stores your original Will once the courier delivers it to our offices.

In conclusion, the requirements for a valid Will as set out in the Wills Act does not make provision for an email, electronic document, voice note or instance message to be accepted as a Will or to give direction to how your estate is to be administered. The requirement for an original physical Will by the Master means that your Will, after being executed, will need to be kept in safe storage.

[1] The use of a mark or fingerprint has its own requirements alongside the general requirements for a signature.