In this blog, we explore the legal intricacies surrounding the use of emails and cloud storage as valid wills, and discuss the implications of submitting such documents to the Master for the wrapping up of a deceased estate.

Introduction

In this blog, we will explore a case study to determine whether an email and/or an cloud storage Will can serve as a valid last will. We will then analyse the court’s decision and provide recommendations on how to proceed.

Case Study

“My wife and I were married for 5 years and she had a 17-year-old daughter from a prior marriage. Sadly, she recently passed away, and her total estate properties are worth R300,000. A few months before her death, she created her Will on her personal computer, saved a PDF copy of it, and had two friends act as witnesses to the Will. They all signed the Will using electronic signatures. She then sent the electronically signed Will to me via email to show that this was her Will and that I would inherit her entire estate. The Will is still saved on her computer. Before making the Will, we heard about a law called The Electronic Communications and Transactions Act, which validates the use of electronic transactions, including electronic signatures. We thought that the Act allowed the signing and safekeeping of a Will in the cloud or on a computer. Is this electronically signed Will valid? This is the only Will we were able to find.”

General Law Requirements

Unfortunately, section 4(4) of the Electronic Communications and Transactions Act 25 of 2002, read in conjunction with Schedule 2 to the Act, excludes the Act's application to the execution, retention, and presentation of a Will or Codicil as defined in the Wills Act 7 of 1953. Meaning, the Electronic Communications and Transactions Act does not apply to the execution, retention, and presentation of a Will or Codicil as defined in the Wills Act 7 of 1953, including electronic signatures and electronic storage of a Will signed in wet ink

The Wills Act 7 of 1953 sets out specific requirements that must be adhered to for a Will to be considered valid. One of these requirements is that the testator, who is the person making the Will, must record their wishes and instructions for what should happen after his or her passing, on a paper document, either typed or handwritten.
Each page, including the last one, must be signed by the testator in wet ink in the presence of two witnesses, who must also sign the Will in wet ink while in the testator's presence.

The only document that will be considered a valid Will is the original signed paper document. Upon the testator's passing, this original signed paper document must be submitted to the Master's Office along with the registration of the deceased estate.

The Master will verify whether all the requirements of the Wills Act have been met. If not, the Master will reject the Will as invalid, and the surviving partner's only recourse will be to seek an order from the High Court under section 2(3) of the Wills Act to accept a document as a valid Will. The court will consider the circumstances of each case before granting such an order.

Different Court Decisions

Numerous court cases have dealt with similar issues, and the courts have held that a literal approach should be used when interpreting the word "drafted." The document must have been prepared directly by the deceased, not by a third party. If the deceased personally drafted the document, it can be seen as their intention to make it their final Will. 

In one case, Dryden v Harrison and Others, the court was unwilling to consider an unsigned electronically drafted document, even though it was shown to be personally drafted by the deceased. The court found that the deceased had previously executed a valid Will and that all the evidence pointed to him being a careful and meticulous person. The court found it unlikely that he would have intended the email to be his Will. Also that the deceased may well have intended to reassure the applicant that he would make her the sole beneficiary in his Will, but he never executed a Will to give effect to this.

However, in Van der Merwe v Master of the High Court & another (605/09) [2010] ZASCA 99 (6 September 2010), the deceased drafted an email and sent it. The document had "an aura of authenticity," and it was uncontested that it still existed on the deceased's computer. The court concluded that the document was clearly drafted by the deceased and had not been altered, and therefore accepted the electronic copy as a valid Will.

So, while the courts are willing to recognise documents that reflect the intentions of the deceased as valid Wills, each case is unique, and the court will scrutinise the circumstances surrounding the document to determine if it constitutes a valid Will. It can be challenging to ascertain what the court will decide, as there is no hard and fast rule.

Recommendation to the Case Study

Regarding this case study, the following should be considered:

The Master can only accept a Will that complies with the requirements of the Wills Act. Additionally, the Electronic Communications and Transactions Act does not apply to the electronic signing or retention of a Will. Therefore, because there is only an electronic "Will," such a document will not be accepted by the Master as a valid will, as it does not comply with the requirements of the Wills Act. Also, because there is no valid will to be found, the deceased died intestate according to the rules set by the Intestate Succession Act 81 of 1987. Taking into account that the deceased left a husband and a child and that the estate is worth R300,000, the husband will inherit at least a minimum of R250,000, and the remainder (R50,000) will go to the daughter from the previous marriage.

The husband has two options: First, he could bring an application in terms of section 2(3) of the Wills Act and ask the court to determine whether the electronic copy constitutes a valid Will or not. The court will examine the circumstances surrounding the document to determine if it constitutes a valid Will, but there is no hard and fast rule regarding the outcome of the court case.

Alternatively, the husband can submit a maintenance claim in terms of section 2(1) of the Maintenance of Surviving Spouses Act 27 of 1990 (MSSA) against the estate of his wife, provided that he can prove he does not have the means to support his reasonable financial expenses and needs. If such a maintenance claim is accepted by the executor, then in terms of section 2(3)(b) of the MSSA, after the creditors have been paid, the maintenance claim will be paid, and whatever is left will go to the intestate beneficiaries. However, the daughter is a minor child, and her guardian on her behalf can also submit a common law maintenance claim insofar as she is not able to support herself. If the husband and child both submit a maintenance claim, their different claims will be proportionately reduced to accommodate both claims in terms of section 2(3)(c) MSSA. If there is a conflict between the interests of the husband and those of the minor daughter, the Master may defer the maintenance claims until such time as the court has decided on the claims in terms of section 2(3)(d) of the MSSA.

Conclusion

To conclude, the validity of a Will depends on adhering to the formalities and requirements set out in the Wills Act. In South African law, electronic or cloud-stored Wills are not recognised as valid. This is because a Will must be drafted or typed on a paper document and originally signed in wet ink by the testator and two competent witnesses. The original, signed paper document must then be submitted to the Master upon the testator's passing. 

The Master will verify that the document complies with the requirements of the Wills Act to confirm its validity for the administration of the deceased's estate. In the absence of a professionally drawn up and executed Will, it is recommended to consult a lawyer to determine the Will's validity and the best course of action for administering the deceased's estate.