Sizwe Snail and Nicholas Hall set out the provisions for wills in South Africa, including the provisions of the Electronic Communication Transaction Act that expressly exclude a data message as a method of executing a valid will. They then consider the case of Macdonald v The Master, in which the court held that a draft will in the form of an electronically stored document which was stored on a computer hard-disk, can be condoned in terms of the Wills Act

Hall, Nicholas

Snail, Sizwe

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67© Pario Communications Limited, 2010 Digital Evidence and Electronic Signature Law Review, Vol 7Technology will be used by people, and it will beused for purposes that politicians legislateagainst. Generally, a will must be executed onpaper with the manuscript signature of thetestator and witnesses being affixed to the paper.However, in the case of wills by sailors, soldiersand airmen, it is possible for a will be to givenorally to another person on the battle-field.Despite the legislation passed by politicians tolegislate for human behaviour, there are timeswhen humans will do as they please, as in thecase of a will. Legal practitioners are compelled totake cognizance of these developments andevaluate the use of data transmission for legallyrecognized acts, such as discussed in this articlein relation to the execution of valid wills.1Although South Africa has legislation governingelectronic data transmissions (the ElectronicCommunication Transaction Act) (ECT),2 it is notpossible to use a data message as a method ofexecuting a valid will. This is strictly prohibited bysection (4)4 and Schedule 2(3) of the ECT.3Furthermore, the Wills Act4 prescribes, in section 2(1)(a),that a will must be (1) in writing, (2) signed, (3) attestedby two competent witnesses and (4) every page mustbe initialed by the testator. This means the use of an e-mail does not satisfy the requirements for a valid will,and even partial compliance of the provisions of theWills Act render the will void from the beginning.5 Thelegal problems created by this scenario bear carefulconsideration. Consider each of the requirements arediscussed below.Writing requirementWith regard to the writing requirement, both section 3of the Interpretation Act,6 as well as section 12 of theECT are very clear. Section 12 of the ECT provides asfollows:Writing12 A requirement in law that a document orinformation must be in writing is met if the documentor information is-a. in the form of a data message; andb. accessible in a manner usable for subsequentreference.Section 3 of the Interpretation Act provides:3 Interpretation of expressions relating to writingIn every law expressions relating to writing shall,unless the contrary intention appears, be construedas including also references to typewriting,lithography, photography and all other modes ofrepresenting or reproducing words in visible form.Taken together, it is clear that information in not withoutlegal force merely because it is wholly or partiallycontained in a data message.Signature requirementThis also applies to the signature and initialingrequirement, as contained in section 13 of the ECT,which recognizes the use of electronic data messagesas valid signatures, although section 13(1) provides that‘Where the signature of a person is required by law andsuch law does not specify the type of signature, thatrequirement in relation to a data message is met only ifan advanced electronic signature is used’, which impliesthat to be enforceable, a signature needs to be anadvanced electronic signature (otherwise known as adigital signature or AeS), unless some other form ofsignature is agreed between the parties.Since the Wills Act requires a will to be signed inorder for it to be valid, an electronic will would have tobe signed using an AeS. In 2007, the South AfricanBy Sizwe Snail and Nicholas Hall1 Sizwe Snail, ‘The Validity and Enforceability ofElectronic Wills’ De Rebus, (August 2006), 51.2 Act 25 of 2002.3 Sizwe Snail, ‘E-pos-kontrakte is oorwegendbindend – wet sluit vier gevalle uitdruklik uit’, inBeeld 6 February 2006.4 Act 34 of 1964.5 Sizwe Snail, ‘The Validity and Enforceability ofElectronic Wills’ De Rebus, (August 2006), 51.6 Act 33 of 1957.ARTICLE:ELECTRONIC WILLSIN SOUTH AFRICA68 Digital Evidence and Electronic Signature Law Review, Vol 7 © Pario Communications Limited, 2010Accreditation Authority was created as provided for bythe ECT.7 One of the requirements of the Authority is toaccredit products and services used in support ofelectronic signatures. In order for an electronicsignature to be an AeS, it would have to be signed usingan accredited service or product. To date there havebeen no providers accredited by the Authority. Whilethere seems to be little up-take for this service, it showsa willingness on behalf of the legislature and executiveto advance the laws of the country to meet the demandsof our digital lifestyles. This also means that SouthAfrica has the necessary infrastructure in place tosupport electronic wills, should the laws be amended.Competent witnessesThere is a legal difficulty in relation to the requirementthat there must be two competent witness who mustattest the document, just as it is also difficult todetermine the witness’s identities. However, theprovisions of section 3 of the ECT (the interpretationclause) does not exclude any statutory or common lawfrom being applied to, recognizing or accommodatingelectronic transaction: ‘This Act must not be interpretedso as to exclude any statutory law or the common lawfrom being applied to, recognising or accommodatingelectronic transactions, data messages or any othermatter provided for in this Act.’ In theory, each witnesscould also use an AeS to sign and initial an electronicwill.Macdonald v The MasterIn the case of Macdonald v The Master8 the court heldthat a draft will in the form of an electronically storeddocument which was stored on a computer hard-disk,can be condoned in terms of section 2(3) of the WillsAct, even if all the statutory requirements have not beensatisfied, and it is possible to admit such a draft will asvalid proof of an existing will.9The deceased committed suicide on or about 14December 2000 and left in his own handwriting fournotes dated 13 December 2000 on a bedside table nextto the bed on which he was lying. On of the notes readas follows:10I, Malcom Scott MacDonald, ID 5609065240106, dohereby declare that my last will and testament can befound on my PC at IBM under directoryC:/windows/mystuff/mywill/personal.11The following day the notes containing the passwordsto the electronic files referred to where handed to IBMemployees who obtained access to the file contents andprinted the contents on to paper, which purported to behis last will and testament. It was handed to his widow.The file was then deleted. The Master then refused toaccept it, because it did not comply with the formalitiesas set out in section 2(1)(a).12 Two Witnesses from IBMtestified in court that at the deceased was a senior ITspecialist in the employ of IBM and that only he hadaccess to the particular computer that contained theprovisions of the document that he intended would behis will.13 The court set out the requirements toestablish the elements that the applicants had to provefor the will to be accepted:In order to be successful with their application underthis section, the applicants must, on a balance ofprobabilities, establish:(a) the documents, annexures A and F were drafted bythe deceased;(b) that the deceased had died since the drafting ofthe documents; and(c) the documents were intended by the deceased tobe his will.14While the court was satisfied with the fact that thesecond requirement had been proved, it still had todetermine whether the other two requirement of section2(3) had been satisfied. Subsequently it had todetermine whether the data message constituted a draftwill that was intended to be his last will and testament,and whether the document had been drafted by thedeceased. The court had to distinguish between thestrict approach which requires that the document bedrafted in the deceased’s handwriting, and the liberalapproach which states that the document need not bein the deceased handwriting and may be typed by thedeceased or even dictated by the deceased.15In deciding in favour of the liberal approach the courtELECTRONIC WILLS IN SOUTH AFRICA7 Chapter VI, Part 1.8 2002 (5) SA 64.9 Steve Cornelius ‘Condonation of Electronicdocuments in terms of section 2(3) of the WillsAct’ Tydskrif  vir Suid Afrikaanse Reg. (2003)(1),210.10 Steve Cornelius ‘Condonation of Electronicdocuments in terms of section 2(3) of the WillsAct’ Tydskrif  vir Suid Afrikaanse Reg. (2003)(1),210.11 Macdonald v The Master note 1 at [67 F-H].12 Back v Master of the Supreme Court 1996 2 All SA161 (c) at 70 A-D.13 Steve Cornelius ‘Condonation of Electronicdocuments in terms of section 2(3) of the WillsAct’ Tydskrif  vir Suid Afrikaanse Reg. (2003)(1),208.14 Macdonald v The Master at 70 F-G.15 Macdonald v The Master at 71 C-G.69© Pario Communications Limited, 2010 Digital Evidence and Electronic Signature Law Review, Vol 716 72 H-73A.held, at 71A-B that:The retention of the formal requirements of s 2(1) andthe peremptory nature of s 2(3) do not justify a strictinterpretation of s 2 (3). Not only is this inconsistentwith the very purpose of s 2(3), namely to prevent thelast wishes of a testator from being nullified by a non-compliance with technical formalities, but it also doesnot take cognizance of the realities of thetechnological world we live in.Finally, the court had to establish whether the draft willwas the testator’s last will and testament. The courtapplied the flowing reasoning in deciding the questionin the affirmative, at 72 A-B:The principal requirement on which the Court shouldbe satisfied, on a balance of probabilities, is that theperson who executed the document intended thedocument to be his will. All the evidence, as well asthe nature and contents of the documentsthemselves, clearly indicate that the documents wereintended to be the last will and testament of thedeceased. Of importance is that these documents arenot a preliminary sketch or notes or discussion of awill still to be drafted, but are clearly a finally draftedwill and testament.The court held that on a balance of probabilities theapplicant had proved that the data message containedher late husband’s last will and testament based on thethree-part test embodied in section 2(3) of the Wills Act.Interestingly, the court went further and warned that thepower of the court, as stipulated in section 2(3) of theWills Act, is a discretionary power that must be usedsparingly and must not be seen as legal precedent as ameans of validating electronic wills.16When the court exercises its power to condone thefailure to comply with the statutory formalities, it mustalways look at each facts of each case. In theMacDonald decision, the court held the followingfactors to be of importance, at 72 C-G:(a) the documents are a clear indication of thedeceased’s intention that they should be regardedas his last will and testament;(b) the documents are not preliminary sketches ornotes for discussion with an attorney or anybodyelse to draft a will, but his final wishes;(c) there is no element of suspicion of fraud attachedto the documents and their reproduction;(d) there is no suspicion that there could have beenany tempering with the computer or thedocuments;(e) not only did the documents exist on the computer,but there was indeed clear reference by thetestator to the these specific documents in hisnotes;(f) there was a clear indication by the deceased wherethis document could be found on his computer;(g) only the deceased had access, by way of secretpassword, to put the documents on the computer;(h) only the deceased could have typed the saiddocuments;(i) they could only be extracted upon the instructionsof the deceased in his own handwriting and onlywith the deceased’s own secret code.As a result of this decision, it can be argued that there isno legal certainty in South Africa as to how and wheredata messages can be used for the purposes ofconveying the last wishes and final testament of aperson that has died. In the normal course of events,only in specific and unique cases will it be necessary toprovide such evidentiary material as stipulated in theMacDonald case where no valid will exists on paper.Arguably, the Macdonald decision ought to beextended not only to draft wills but to wills executedELECTRONIC WILLS IN SOUTH AFRICA70 Digital Evidence and Electronic Signature Law Review, Vol 7 © Pario Communications Limited, 2010electronically. That is, a digital document that has beendigitally signed by the testator and witnesses with theintent of being a testator’s last and final testament.17 Itwould also be possible for the legislature to specificallyamend the Wills and ECT Act to allow the commissioningof electronic wills.18 Technology has evolved and been taken up by peopleso quickly, that it is possible that when politicianspassed the relevant legislation, little or no considerationwas given to the way people would use the technology.It is suggested that the legislature ought to consideramending the ECT and the Wills Act to cater for wills inelectronic format, for the very reason that people willuse the technology for this purpose.19 This approach is,it is suggested, a better approach, because the lawcannot possibly try and prevent the development oftechnological advances, which also would apply todeeds of sale, and other formally prescribeddocuments.20© Sizwe Snail and Nicholas Hall, 2010ELECTRONIC WILLS IN SOUTH AFRICA17 Sizwe Snail, ‘The Validity and Enforceability ofElectronic Wills’ De Rebus, (August 2006), 51.18 Note NRS 133.085, where Nevada has madeprovisions for electronic wills:1. An electronic will is a will of a testator that:(a) Is written, created and stored in anelectronic record;(b) Contains the date and the electronicsignature of the testator and which includes,without limitation, at least oneauthentication characteristic of the testator;and(c) Is created and stored in such a manner that:(1) Only one authoritative copy exists;(2) The authoritative copy is maintained andcontrolled by the testator or a custodiandesignated by the testator in theelectronic will;(3) Any attempted alteration of theauthoritative copy is readily identifiable;and(4) Each copy of the authoritative copy isreadily identifiable as a copy that is notthe authoritative copy.2. Every person of sound mind over the age of 18years may, by last electronic will, dispose of allof his or her estate, real and personal, but theestate is chargeable with the payment of thetestator’s debts.3. An electronic will that meets the requirementsof this section is subject to no other form, andmay be made in or out of this State. Anelectronic will is valid and has the same forceand effect as if formally executed.4. An electronic will shall be deemed to beexecuted in this State if the authoritative copyof the electronic will is:(a) Transmitted to and maintained by acustodian designated in the electronic will atthe custodian’s place of business in thisState or at the custodian’s residence in thisState; or(b) Maintained by the testator at the testator’splace of business in this State or at thetestator’s residence in this State.5. The provisions of this section do not apply to atrust other than a trust contained in anelectronic will.6. As used in this section:(a) “Authentication characteristic” means acharacteristic of a certain person that isunique to that person and that is capable ofmeasurement and recognition in anelectronic record as a biological aspect of orphysical act performed by that person. Sucha characteristic may consist of a fingerprint,a retinal scan, voice recognition, facialrecognition, a digitized signature or otherauthentication using a unique characteristicof the person.(b) “Authoritative copy” means the original,unique, identifiable and unalterableelectronic record of an electronic will.19 In the respect of electronic wills in otherjurisdictions, see the US case of Taylor v Holt CATennessee Knoxville 18 August 2003, discussed inStephen Mason, Electronic Signatures in Law (2ndedition, 2007, Tottel), 10.16 and the Norwegiancase LB-2006-27667, 20 August 2007, Borgartingappellate court relating to the validity of anelectronic will, translated into English with acommentary by Professor Jon Bing, DigitalEvidence and Electronic Signature Law Journal, 5(2008) 137-140.20 Sizwe Snail, ‘The Validity and Enforceability ofElectronic Wills’ De Rebus, (August 2006), 51.Sizwe Snail is an Attorney with Snail Attorneys, Hatfield,Pretoria, South Africa and a consultant with MichalsonsAttorneys, Cape Townhttp://www.snailattorneys.co.za/SSnail@Snailattorneys.co.zaNicholas Hall is a Candidate Attorney at MichalsonsAttorneys, Cape Townhttp://www.michalsonsattorneys.comNicholas@michalsonsattorneys.com

Electronic wills in South Africa

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