Can an email instruction constitute a will?

Staying on top of your ‘admin’ can be tough, especially when life gets busy. We sometimes slip up and fall behind on getting important to-do’s sorted, whether it is a driver’s license that is nearly due for renewal or the tax season that is looming. One item that should never be left for tomorrow is drawing up your last will and testament.

The death of a loved one is a devastating experience, which is made so much more stressful if the loved one did not have a valid will in place.

As soon as you own any asset, even a bank savings account, you should consider drafting a will. A will allows you the last say on who should inherit your assets after you pass away. If you do not have a will, everything you owned could be distributed to family and relatives in accordance with the Intestate Succession Act, and this may not be to your liking.

So exactly what does a will need to include? Given the massive move to digitisation across most industries, from a legal perspective, can an emailed instruction suffice as a will?

We suggest the following basic pointers for wills:

  • Email, hard-copy document or WhatsApp voice note? Your will must be printed out or handwritten and signed by you, together with two witnesses on the day.
  • E-signatures (or digital signatures) are a modern development and generally accepted for normal contracts, but are not accepted when it comes to wills. You could, however, approach the High Court to get an order condoning non-compliance if you can prove the intention of the deceased was for the will to be valid and that he or she had drafted or reated the document. But an electronic will is generally technically invalid. Going to court could cost anything from R20 000 to R50 000 in legal fees and the application may be opposed by potential intestate heirs who are excluded from the will. However, over the years our courts have shown a willingness to be flexible where justice is served.
  • You’re not required to include the date on a will but it is highly recommended. By law, you are required to deliver all wills a person has ever drafted to the Master of the High Court when that person dies. So if there are no dates, how do you know which is the most recent one.

Ultimately, a court needs to be satisfied that a document drafted by a deceased person was intended to be his or her will. Regardless of the format of the will, the court may order that the document be accepted for the purposes of the administration of the deceased’s estate. Be prepared though. This may be a long and possibly expensive process. Rather make sure you comply fully with the Wills Act. Even if there are no family politics about who will inherit your assets, everything you leave behind, requires some type of legal process for transfer to new owners. So your family members can’t simply ‘move in’ and take over where you left off. The legal process can be very lengthy if you did not plan properly for this it through your will or nominate a professional executor.

Johan Mitchell – Senior Financial Planner

Landline:  +27 21 947 3096
Cell Phone:  +27 838673672
2 Strand Street, Bellville, 7530

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