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THE IMPORTANCE OF PROPERLY EXECUTING A LAST WILL AND TESTAMENT

18
Jun
Category Updates

THE IMPORTANCE OF PROPERLY EXECUTING A LAST WILL AND TESTAMENT

In a recent article we explored the legal validity of documents which have been signed electronically. Though the legal profession recognises the central role of technology in society, section 4(4) of Electronic Communication Transaction Act (ECTA) mentions that it does not give validity to data messages as a method of executing a valid will. Rather, wills are regulated by the Wills Act. This article aims to highlight the strict formalities for drafting a valid will and why these make it difficult for an electronic—more specifically an emailed will—to be legally recognised.

These formalities are rigid by design, as they aim to prevent fraud and/or impersonations of the will’s testator. Consequently, according to Section 2(1)(a) of the Wills Act a will must fulfil the four formalities; non-compliance with these requirements will render the will void. The four formalities are that:

  1. The will must be in writing,
  2. It must be signed by the testator,
  3. The testator’s signature must be attested by two or more competent witnesses; and
  4. If the will consists of more than one page, it must be signed by the testator and initialled by the witnesses on each page.

These requirements pose two problems for electronic wills as they require two formalities that are cumbersome to meet in electronic format: namely, a will has to be in writing and it must be signed.

However, under certain circumstances a will that has been drafted but which does not comply with these requirements, may still be regarded as validly executed according to section 2(3) of the Wills Act on application to the High Court. In order for the court to declare an unsigned will as valid the court must be satisfied that:

  1. The document was drafted by the deceased,
  2. The deceased has died since the drafting of the document, and
  3. It was intended by the deceased to be their will.

The Courts do not readily accept an unsigned document as being indicative of the intention of the deceased. Rather, the court will need to be convinced that the document indeed reflects the intention of the deceased. One would for example have to lead the evidence of the attorney who took the deceased’s instructions and/or drafted the will, or there would be a need for a communication by the deceased confirming receipt of the draft and making arrangements to have it signed etc.

Furthermore, in the absence of a signature, or evidence of personal involvement in drafting the will, the court will not accept an unsigned version of a will as being a reflection of the deceased’s intention. By way of example, finding a draft of a will on the deceased’s personal computer will not suffice, but if he sent a copy to his attorney to “neaten” or if his attorney emailed him a draft and the deceased requested a change advising that he would thereafter be signing the will, this may convince a court to accept the unsigned document as reflecting the intention of the deceased.

Thus, although the courts have the power to condone a will which does not comply with these formalities, this can be a costly and a time-consuming process. It is therefore advisable to seek advice to comply with all the necessary requirements to avoid any complications at a later stage.

 Written by Michael Campbell.

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