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Can an Email Instruction Constitute a Will?

By David Thomson, 16 October 2019

Staying on top of your ‘admin’ can be tough, especially when life gets busy. Whether your driver’s licence is nearly due for renewal or tax season is looming, we sometimes slip up and fall behind on getting important to-dos sorted.

One item that should never be left for tomorrow, is drawing up your last will and testament. But, according to the Master of the High Court’s most recent figures, more than 70% of working South Africans have done just that. They don't have wills.

The death of a loved one is a devastating experience to endure but it’s made so much more stressful if they didn’t have a valid will in place, says David Thomson, Senior Legal Adviser at Sanlam Trust, a division of Sanlam Personal Finance.

“As soon as you own any asset, even a bank savings account, you should consider drafting a will. A will allows you the last say on who should receive your assets after you pass away. If you do not have a will, everything you owned will be distributed to family and relatives according to the Intestate Succession Act, and this may not be to your liking.”

Characteristics of a Valid Will

So exactly what does a will need to include? Given the massive move to digitisation across most industries, from a legal perspective, can an emailed instruction suffice as a will? Here Thomson suggests the basic pointers:

  • Email, hard copy document or WhatsApp voice note? Your will must be printed out or handwritten and signed by yourself, together with two witnesses on the day. There was a court case recently where an attorney signed a will on a client’s behalf without complying with the required formalities and amazingly the court ruled in favour of the will being valid. But that goes against the grain. The main reason it was allowed is because they found the will typed up on the client’s computer, and were able to prove it was his intention that the document represented his last will and testament.
  • E-signatures (or digital signatures) are a modern development and generally accepted for normal contracts, but do not comply with the law of wills. You could, however, approach the high court to get an order condoning non-compliance if you can prove the intention of the deceased was for the will to be valid and that he or she drafted or created the document. But an electronic will is generally technically invalid. Going to court could cost anything from R20 000 to R50 000 in legal fees and the application may be opposed by potential intestate heirs who are excluded from the will. However, our courts have shown over the years a willingness to be flexible where justice is served.
  • You’re not required to include the date on a will but it is highly recommended. By law, you are required to deliver all wills a person has ever drafted to the Master of the High Court when he or she dies. So if there are no dates, how do you know which is the most recent one?

Conclusion

Ultimately, a court needs to be satisfied that a document drafted by a deceased person was intended to be his or her will. Regardless of the format of your will, the court may order that the document is accepted for the purposes of the administration of the deceased’s estate. Be prepared though. This may be a long and possibly expensive process, so Thomson doesn’t recommend it. Rather make sure you comply fully with the Wills Act.

“Even if there are no family politics about who will inherit your belongings, everything you leave behind requires some sort of legal process to transfer it to new owners. So your family members can’t simply ‘move in’ and take over where you left off. The legal process can be very lengthy if you did not plan properly for this through your will and nominated a professional executor.”

Sanlam Life Insurance is a licensed financial service provider.
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