If the will document complies, on the face of it, with the prescribed formalities, it is accepted as authentic and anyone who alleges otherwise must prove that it is not a valid will.
A digital or electronic document — a “data message” — is harder to authenticate.
No electronic wills yet
It is, therefore, not that easy to switch to electronic wills simply because the technology exists to create such documents.
If that were the case, most of the world would have moved to electronic wills.
However, most countries still insist on hard-copy wills despite the availability of digital technology and notwithstanding the fact that the debate regarding video wills started more than 30 years ago.
Some countries do provide in their legislation that the court can order documents and recordings not complying with the requirements to be accepted as valid wills.
In SA, section 2(3) of the Wills Act empowers the court to order the Master of the High Court to accept a document as a will when that document was drafted
or signed by a person before their death and was intended by that person to be their will, despite the fact that the document does not comply with the formal requirements for a valid will.
Although the high court has granted most applications regarding electronic documents so far, it did so with regard to the paper printouts of the documents and not the electronic versions.
However, an application to the high court is time-consuming and costly — such an application, if unopposed, can cost anywhere between R15,000 and R50,000. If opposed, the costs increase exponentially.
Any change will have to come by way of an amendment of the Wills Act by parliament.
(Article compiled by:
JAMES FABER AND LOUIS VAN VUREN on the 8th July 2020)