David Thomson, CFP®, Senior Legal Adviser at Sanlam Trust
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 But is South Africa’s will legislation out of date?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 also enabled many people more time to think. As our news feeds are filled with the economic fallout and the havoc this has wreaked on markets, any extra thinking time will undoubtedly include concerns around personal finances and the future. Estate planning comes squarely into the frame as a critical part of financial 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 during the lockdown
The limitations imposed by the lockdown mean people can’t see their legal or financial adviser in person, but, thankfully, there are various ways these crucial conversations can still take place. We’ve seen many people opt to have phone calls or online video chats with their advisers in order to understand how to structure their last wishes. Some are also choosing to search online for legal information – there are websites offering free online ‘will guides’ that help the user put together a last will and testament.
Whatever the case, the person intending to make a will has to then draft it. The law in South Africa is governed by the Wills Act Number 7 of 1953. As the designation indicates, this is a very old piece of legislation, last amended slightly in 1996. It has served us well over the years, but I submit that it is no longer serving the people well – particularly in this time of crisis.
The law says that the will must be in writing – either hand-written 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/ testatrix) and two witnesses. Signing includes the making of a ‘mark’ (by a person who cannot sign his/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. The law stipulates that a person is not allowed to inherit from someone if they wrote any part of the will in their own handwriting or if they sign as a witness.
That means that if your family members act as witnesses, they cannot be your beneficiaries. So, you’ll need to find two other witnesses… But the law also states that the two witnesses must be present with you, when you sign your will. In the current situation that is impossible. You also can’t expect a commissioner of oaths to come to your home in order to certify your will.
Section 2(3) of the Wills Act is often referred to as the ‘rescue provision’. That is because it 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 I described above. I strongly caution you not to willingly ignore the formalities and 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 of will-making and the vexing question of electronic wills
So-called ‘audio’ and ‘video’ wills do not constitute ‘writing’ so are not valid, although they may be of evidentiary value (per J. Faber, UFS).
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. Previous court cases (Macdonald v The Master, 2002 and Marshall v Baker N.O., 2019) have shown that electronic wills have been accepted and rejected in the past, based on the evidence as to the deceased’s intent. This makes them unreliable.
While the Electronic Communications & Transaction (ECTA) Act, 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).
Ultimately, a will is not an agreement or contract. It is the final expression of wishes that come into effect on death. We enjoy freedom of testation and may change our will at any time and revoke all previous ones. The Wills Act is the only authority – together with the High Court of SA – on whether or not a will is legitimate.
This vexed question of electronic wills is not unique to South Africa. People all over the world may be facing the same obstacles as we are right now. Generally speaking, a will must be printed out and signed in ink (and attested by two witnesses) in most countries, including the UK and USA (except in the state of Nevada apparently). Other countries have various ways of dealing with the evidential burden of proving that a document purporting to be a will (whether electronic or not) is in fact valid. There is a rich body of analysis on the various types of electronic documents and the ways electronic signatures can be verified and secured.
Is it time for our law to change?
The law has not kept up with technological advances. Has the time come for South Africa to take the lead in amending our law of wills to deal with the modern era?
Sylvia Papadopoulos of the University of Pretoria discusses how the Wills Act needs to adapt to evolving technology in her article ‘Electronic Wills with an Aura of Authenticity’. Additionally, “Van Staden and Rautenbach (in 2006) convincingly argue that the formality requirements of the Wills Act 7 of 1953 for validly executing a will have not kept up with technological advances, and that there is an increasing need for this statute to provide for electronic wills.
This is relevant because technology such as electronic signatures significantly reduces the possibility of fraud. By using and understanding technology, the integrity and genuineness of an electronically executed will can be ensured.” (reference 2012 24 SA Merc LJ).
The time is now, let’s do it.
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