14 June 2021
“My aunt recently passed away suddenly due to Covid-19. In the hunt for her will, it transpired that she had sent an email to her attorney in which she had asked for amendments to be made to her will and for some of the beneficiaries to be removed. The attorney confirmed that he had not had opportunity to draft a new will before my aunt passed. Can her email be seen as her valid last wishes?”
In South Africa, the requirements for a valid will are set out in the Wills Act 7 of 1953. The testator or testatrix should be 16 years of age or older, the will must be in writing, and each page of the will including the last page of the document must be signed by the testator or testatrix in the presence of two or more competent witnesses who are each 14 years of age or older.
Despite these requirements, section 2(3) of the Act provides for a court to direct the Master of the High Court to accept a document as a valid will for purposes of the Administration of Estates Act, 1965 if it was intended to be the testator’s will or an amendment of his will. To do this our courts will consider the facts of each case before granting such an order.
Our courts have held that a literal approach should be used when considering the word “drafted” in that the document must have been prepared directly by the deceased in his personal capacity and not by a third party. Accordingly, where a deceased has personally drafted a document, the intention can be seen to have been that the deceased intended the document to constitute his final will.
This view has been taken even further and have our courts found that even an electronically drafted document which is unsigned but was shown to be personally drafted by the deceased and confirmed to have been intended to constitute a final will, can be regarded as valid, and that even the absence of a signature was not an absolute bar to the document being regarded as a valid will with the emphasis being on the intention of the testator.
Going even further, it has been found that an instruction of a terminally ill deceased to her bank to draft a will on her behalf but who passed away before the will was properly executed, constituted a valid will, again based on the intentions of the deceased and the surrounding circumstances. However, in another case where the deceased had only provided an instruction to the bank to draft the will before her passing, the court found the instruction to draft a will was not enough to constitute a valid will.
The document in question was signed by the deceased and was merely an instruction to the bank to draft a last will on her behalf. The deceased had completed the wills application document a day prior to her passing, and the instruction to draft the will was not executed upon her passing. The application was eventually dismissed with no costs.
What can be seen from the above, is that our courts are willing to find documents that express the intention of the deceased to be a valid will. However, there is no hard and fast rule and the circumstances of each case need to be carefully considered whether the intention of the deceased was to regard the document as a valid will.
In your case, should the validity of the will of your aunt be in dispute, an application could be brought in terms of section 2(3) of the Act and the court can be asked to establish whether the instruction constituted a valid will or not.