Why a selfie-video or voice recording can’t be a valid will
Questions such as why wills in SA still have to be hard-copy documents and why can’t I simply take a selfie-video or make a voice recording in which I set out who inherits my assets after my death are becoming more common.
Electronic devices, such as desktop computers, laptops, tablets, smartphones and smartwatches have changed the way we interact with and store our information. Hard-copy documents are rapidly going out of fashion and the Covid-19 lockdown has accelerated this trend.
However, the Wills Act in SA requires that a will be signed by the testator (the person whose will it is) and this implies a document that can be signed. The testator must sign in the presence of two witnesses or acknowledge their signature to the witnesses, who must also sign the document while in the presence of the testator and each other.
A will can be drafted electronically — on a computer, smartphone or any other electronic device — but the drafted will must then be printed or converted to writing in some other way in a medium (traditionally paper) that can be signed by the testator and the witnesses.
The Electronic Communications and Transactions Act of 2002 (ECTA) excludes wills from the provision that if a document is contained in a data message, any requirement that the document be in writing is fulfilled. As a result, a will that is drafted, signed and stored electronically does not comply with the requirements of the Wills Act.
The rationale behind the requirements of the Wills Act is to prevent fraud. If the will document complies, on the face of it, with the prescribed formalities, it is accepted as authentic and anyone who alleges otherwise must prove that it is not a valid will.
A digital or electronic document — a “data message” as it is called in the ECTA — is harder to authenticate. Video recordings are notorious for their vulnerability to alteration, as the recent memes about Donald Trump prove.
No electronic wills yet
It is, therefore, not that easy to switch to electronic wills simply because the technology exists to create such documents. If that were the case, most of the world would have moved to electronic wills.
However, most countries still insist on hard-copy wills despite the availability of digital technology and notwithstanding the fact that the debate regarding video wills started more than 30 years ago. Some countries do provide in their legislation that the court can order documents and recordings not complying with the requirements to be accepted as valid wills.
In SA, 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.
Although the high court has granted most applications regarding electronic documents so far, it did so with regard to the paper printouts of the documents and not the electronic versions. However, an application to the high court is time-consuming and costly — such an application, if unopposed, can cost anywhere between R15,000 and R50,000. If opposed, the costs increase exponentially.
Emergency legislation in several countries allows for the signing of a hard-copy will by the testator and witnesses via video-conferencing.
In SA, the Disaster Management Act, under which the current lockdown regulations were issued, does not make provision for any powers to amend the requirements of the Wills Act. Any change will have to come by way of an amendment of the Wills Act by parliament.
• Faber is a lecturer in private law at the University of the Free State and Van Vuren is CEO of the Fiduciary Institute of Southern Africa (Fisa).