Is an unsigned electronic will valid?

“My father recently passed away. His will was drafted by a financial planner who e-mailed the final draft to him, but which he never signed. We found the email with the will attached but no further correspondence or documentation between the financial planner and my father regarding the content of the will or his wishes. Is this will valid?”

The Wills Act 7 of 1953 requires strict formalities to be complied with for a will to be recognised as the testator`s final will. These formalities include:

1. that the will is signed at the end thereof by the testator; 
2. that such signature is made by the testator in the presence of two or more competent witnesses present at the same time and who signs the will in the presence of the testator;  and
3. that if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator.

It is essential that the requirements for a valid will be met to convincingly prove that a will is, in fact, valid on the face value thereof and a reflection of the intention of the testator to be his final will and testament. If there is any doubt as to whether any of the formalities has been sufficiently met, our courts will need to be approached to condone non-compliance with the formalities for a valid will, before the deceased’s estate can be administered in terms of the will. 

Our courts recently held that a court may, if it is satisfied that a document drafted by a person who has since died, was intended to be his will, order the Master to accept that document as the deceased’s will even though it does not comply with all the formalities for the execution of a will.

As your father’s will was not executed (signed) in any manner (by himself or witnesses), a personal involvement by your father during the drafting process will need to be shown if it is to be argued that the document is indeed a valid will. As no communication or instructions conveying your father’s wishes could be found to prove that your father instructed the financial planner to incorporate specific wishes into his will, the requisite personal involvement element is missing, and as such it will be difficult to show that the will was concluded personally by your father – even more so because it was drafted by the financial planner. Accordingly, a court will probably not find that the will in fact contains the wishes of your father.

Where the will was not drafted by your father, the will must then at least have been signed in order to be valid. Here also, as your father’s signature was nowhere to be found on any part of the document, obtaining condonation of the will on the grounds of execution would be highly unlikely as it cannot be shown that your father ever saw the final product, and no signature (or even partial signature) can be provided to prove his approval and execution thereof. 

To summarize, I believe in your case given the provided facts, it would be very difficult to prove that the electronic document represents the final will and testament of your father. This does not mean that in general you can never get condonation, but that to do so it will have to be shown that a will was either drafted (or that there was personal involvement in the drafting) or signed (in full or partially) by a deceased testator.

November 9, 2015
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