Can a will made on a digital device be valid?

Digital technologies have advanced more rapidly than any innovation in history. Via electronic tools, systems, devices and resources that generate, store or process data, around 50% of the developing world’s population has been reached in only two decades, in effect transforming societies. Well-known examples include social media, online games, multimedia and mobile phones. Digital technology can help improve communication and successful enterprises embrace technology to create digital workplaces that improve business cohesion.

Therefore, questions regarding the use of digital technology when a document like a Will is signed, become more common. People want to know why they cannot just take a self-video or make a voice recording in which they set out who inherits what after his/her death. Why does a Will still have to be a hard-copy document?

It is true that electronic devices like computers, laptops, tablets, smartphones, etc. have changed the way we interact with and store information. It has led to hard-copy documents going out of fashion and the current situation has enhanced this view.

The Wills Act in South Africa requires that a Will be signed by the person whose Will it is, the testator. This implies that there must be a document to be signed. The act also requires that the testator signs in the presence of two appropriate and impartial witnesses who must also sign the Will while in the presence of the testator and each other.

A Will can be drafted on any electronic device, i.e. computer, smartphone, etc., but the draft must be converted into a document which must be printed and signed according to the requirements of the law.

ECTA (the Electronic Communications and Transactions Act of 2002) determines that a document included in a data message, which is a digital or electronic document, fulfills the requirement of a document to be in writing. But it excludes a Will from such documents because a signed and electronically stored Will does not comply with the requirements of the Wills Act.

The reason behind the requirements of the Wills Act is to prevent fraud when dealing with an important issue like a person’s estate. A Will that complies with the stipulations of the act is accepted as authentic and if it is disputed, it must be proved to not be a valid Will. It is harder to authenticate a data message. Video recording can be altered very successfully and are not reliable or authenticatable at all. Examples of this are the altered memes about Donald Trump.

Even though the technology exists to create digital documents, it is not that easy to switch to electronic Wills. If it were at all feasible, most of the world would have moved to electronic Wills by now. The debate regarding video Wills has started more than 30 years ago, but most countries still insist on hard-copy Wills despite the availability of digital technology.

Of course, in some countries they do provide legislation that the court can order that untraditional Wills and recordings can be accepted as valid Wills if it can be proven to be the person’s Will. In South Africa, 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.

Most of the applications regarding electronic documents which were granted by the high court were based on paper printouts of documents and not the electronic versions. Approaching a court is extremely costly and time-consuming though. Unopposed cases could cost anywhere between R15 000 and R50 000 which can increase drastically if opposed.

Several other countries have emergency legislation in place which allows for the signing of a hard-copy Will by the testator and witnessed via videoconferencing. Under South Africa’s Disaster Management Act, which covers the current lockdown regulations, no provision is made for any power to amend the requirements of the Wills Act. Changes to the Act can only be implemented by way of an amendment of the Wills Act by parliament.

 

Source: Legatus – James Faber and Louis van Vuren