In our previous post we considered a story that touched on the topic of electronic wills. We shared the story of a troubled man in Australia who took his own life. Moments before doing so, he wrote a text message to his brother that was never sent. The message appeared to contain his testamentary wishes. After a search, no will could be found. The Court had to determine whether the unsent text message amounted to a will. The Australian Court applied its law and determined that the text message could be treated as the deceased man’s will. We recommend reading the previous post before reading this post, to help contextualise this post. You can read the previous post here.
Electronic wills in South African law
But what about South African law and electronic wills? The question is, could an unsent text message amount to a will in South African law?
The text message in question is:
“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten . A bit of cash behind TV and a bit in the back Cash card pin 3636
MRN190162Q
10/10/2016
My will”
An unsent text message is a data message. We have the Electronic Communication Transaction Act (ECT) which governs data messages. The ECT states expressly, however, that its provisions are not to be construed as giving validity to the execution, retention or presentation of a will as defined in the Wills Act. This act does not help us here.
The starting point must therefore be in the Wills Act and the requirements for a valid will. The Wills Act prescribes that a will must be in writing – handwritten or printed, signed by the testator in the presence of two competent witnesses, signed by the two witnesses and every page must be initialed by the testator.
As the law stands, the draft text message would not totally fulfill these requirements. It would have been stored electronically and not written in hard copy. It clearly was not signed by two competent witnesses. It would not meet the requirements for a valid will. It would be considered invalid under s 2(1)(a) of the Wills Act.
If it is not valid under this section, what now? Is there any way that the text message could be treated as a will? The case of MacDonald vs The Master is the relevant case to help answer our question.
A case on electronic wills
In this case, a deceased man committed suicide. On the table beside the bed on which he was lying lay a note that read, “I, Malcom Scott MacDonald, ID 5609065240106, do hereby declare that my last will and testament can be found on my PC at IBM under directory C:/windows/mystuff/mywill/personal ”. The day after his death, the file was accessed and the document was printed out. The Master did not accept the will because it did not fulfill the requirements of s 2(1)(a) of the Wills Act.
An application was brought to condone the will. The Wills Act makes provision for improperly or unexecuted wills to be condoned in s 2(3). A Court may condone a document purporting to be a will if that document fulfills the requirements. In this case, first, it should be clear that the testator drafted the document that purports to be his will. Second, the testator must have died since drafting this document. Third, the testator must have intended for the document to be his will.
The Court was satisfied that the second requirement had been fulfilled. Regarding the first requirement and taking into consideration technological advancements, it held that a document would be considered drafted by the deceased if it had been handwritten, typed or dictated by the deceased. The Court found that the deceased had been the one to draft this document. On the third requirement, the Court considered the evidence and the nature and content of the documents themselves. The Court held that the documents were not preliminary sketches, the indication was to a final draft of a will and testament.
The Court found on a balance of probabilities that the data message could be condoned as the deceased’s last will and testament. It went on to say that Courts should use s 2(3) sparingly as a discretionary power. The judgment, said the Court, should not be seen as legal precedent for valid electronic wills.
Can an unsent text message be a will?
Could the text message have been condoned under our law? It is possible. MacDonald teaches us that we will need to use s 2(3) of the Wills Act to ask the Court for condonation. On the second requirement, this is obviously fulfilled. On the first requirement, the facts show that it was the deceased who typed (therefore drafted) the message. On the third requirement, the message contains the words “My will” and deals with all of the deceased’s property as well as who will and who won’t inherit. A factor against this is that the text was not sent.
MacDonald does not give us complete legal certainty with regard to electronic wills. It is submitted that the law of succession in South Africa needs to progress to be able to operate more effectively in our technologically advancing world.
As for now, it is best to follow all the formalities set out for executing a will. If you are unsure what you need to do, be sure to contact your attorney. Please do not hesitate to contact us at [email protected].