Authored By: Tyreze Chivaz Naidoo
Emeris
Introduction
The Fourth Industrial Revolution (4IR) has transformed modern society, enabling quick information exchange and digital legal transactions.[1] While people manage their lives through emails, digital files, and virtual platforms, the South African law of succession remains anchored in paper-based paradigms. Under Section 2(1) of the Wills Act 7 of 1953, a valid will requires a physical wet-ink signature in the physical presence of witnesses.[2] This rigid historical approach has protected testators from fraud and coercion but creates a significant gap in a digitally integrated society.[3]
To mitigate the strict consequences of strict compliance, which often invalidated good-faith testamentary intentions due to minor execution errors, the legislature introduced Section 2(3) of the Wills Act.[4] This section empowers a court to accept a document as a valid will if satisfied that the deceased intended it to be their will, notwithstanding formal non-compliance. While this provision serves as a critical judicial gateway for electronic documents, it has also led to conflicting jurisprudence and underscores the vulnerabilities of non-traditional formats.
This article argues that while Section 2(3) provides a necessary safety net, the South African framework is structurally poorly equipped to address the unique authentication challenges and fraud risks such as AI-generated deepfakes, attribution failures, and metadata manipulation posed by video recordings and digital messages. To preserve the protective functions of succession law without limiting convenience, the legislature must remove the exclusion of wills from the Electronic Communications and Transactions Act (ECTA) 25 of 2002 and codify secure digital standards using advanced electronic signatures and Public Key Infrastructure (PKI) technology.[5]
The article proceeds as follows: Section 2 reviews the traditional statutory framework and ECTA’s exclusion of wills; Section 2 analyzes the judicial application of Section 2(3) through landmark cases; Section 4 evaluates the technical and legal challenges of video and digital formats; Section 5 offers a comparative perspective on international frameworks; and Section 6 proposes legislative reforms to establish a secure, hybrid framework.
Traditional Formalities and the Legislative Gap
The Functional Doctrine of Execution Formalities
The formal requirements for a valid will are strictly regulated by Section 2(1)(a) of the Wills Act. A will must be in writing, signed at the end by the testator, in the simultaneous presence of two or more competent witnesses who must attest and sign in the presence of the testator and of each other.[6] Furthermore, the testator must sign every page of a multi-page will anywhere on the page.[7]
These formalities serve four legal functions: the evidentiary function ensures a durable record of the testator’s dispositions; the cautionary function alerts the testator to the gravity of the act; the protective function shields the testator from coercion at execution; and the channeling function creates a standard format for easy administrative processing.[8] Because the testator is deceased at probate and cannot verify the document, strict enforcement is considered necessary to protect the integrity of testacy.[9]
ECTA and the Exclusion of Testate Succession
The legislature enacted ECTA to facilitate and regulate electronic communications.[10] Under Section 11(1) of ECTA, information is not without legal force just because it is in the form of a data message.[11] Section 12 further states that a legal requirement for writing is met if a document is in the form of a data message and remains accessible for subsequent reference.[12]
Importantly, the Wills Act is specifically excluded from ECTA’s ambit. Section 4(3) read with Schedule 1 provides that the legal recognition of data messages and electronic signatures under Sections 11, 12, and 13 does not apply to the Wills Act.[13] Furthermore, Section 4(4) read with Schedule 2 provides that ECTA must not be construed as giving validity to the execution, retention, or presentation of a will or codicil.[14] This blanket exclusion has created a severe legislative gap. While citizens can conduct complex commercial actions digitally, they are legally prohibited from executing a will using standard electronic means, leaving succession law isolated from 4IR advancements.[15]
Section 2(3) Condonation: Judicial Responses to the Digital Shift
The Broad vs. Narrow Meaning of “Drafted”
Due to ECTA’s exclusion of wills, the South African judiciary has relied on the condonation power of Section 2(3) to address electronic testamentary writings.[16] For over a decade, a flexible interpretation emerged, seen in Back v Master of the Supreme Court. In the case of Back, the court condoned a draft will be prepared by an attorney on the instructions of the deceased, which the deceased had read and approved but died before signing, arguing that requiring personal physical drafting by the testator would frustrate Section 2(3)’s remedial purpose.[17]
This flexible approach was decisively overruled by the Supreme Court of Appeal (SCA) in Bekker v Naude.[18] In the case of Bekker, a bank official prepared a joint draft will for the deceased and his wife based on their consultation notes, but the deceased died without signing it. The SCA held that “drafted” in Section 2(3) must be interpreted strictly to mean personally written, personally typed, or personally brought into being through other means.[19] Because the bank official had drafted the document, and not the deceased personally, the court could not condone it. Olivier JA emphasized that strict adherence to the literal meaning of drafted was essential to preserve a degree of reliability, reduce the possibilities of fraud, and protect testators from post-mortem disputes.[20]
Landmark Applications for Non-Traditional Electronic Documents
Despite the narrow literal approach established in the case of Bekker, High Courts are frequently called upon to evaluate whether various digital writings meet the requirements of Section 2(3). In Macdonald v The Master, the court condoned a will stored as a computer file on the deceased’s computer, establishing that digital data satisfies the document requirement under Section 2(3) if the deceased personally typed it.[21] Subsequent High Court cases reveal critical inconsistencies such as:
Longfellow v BOE Trust Ltd NO: The court refused to condone a CNA precedent that will be filled in by the deceased’s husband, even though she approved. Because she did not personally write or type the document, the “personal drafting” requirement under Bekker was not met.[22]
Mabika v Mabika: The court condoned an FNB “Application for the Drafting of a Will” and written instruction sheet completed by the deceased. The court invoked equity, noting that she was terminally ill and fleeing severe domestic violence, and it would be “greatly unjust” to deny validity and benefit the abusive spouse.[23] This decision has been heavily criticized by scholars who argue that instructions do not represent a final expression of testamentary intent under Ex parte Maurice.[24]
Taylor v Taylor: The court refused to condone a signed “wish list” as an amendment. Analyzing the precatory language used such as “it is my wish”), the court held that the deceased did not intend the document to amend his will but trusted his family to distribute his personal effects fairly.[25]
Technical and Legal Vulnerabilities of Non-Traditional Wills
The Written Form Requirement and the Oral Nature of Video Wills
While digital texts have been accepted under Section 2(3), video wills, which was often referred to as videotestamente, present a more complex hurdle.[26] The Wills Act contains no express definition of writing, but the term is inferred from references to sign, signature, page, and mark.[27] The Interpretation Act 33 of 1957 defines writing as including modes of representing words in visible form.[28] Although a video recording is stored as digital data, it is essentially an oral statement.[29]
The primary legal objection to video wills is that they lack the deliberate caution and permanence associated with written documentation. A video can be recorded impulsively, capturing emotionally charged thoughts rather than a settled animus testandi.[30] Writing down one’s final wishes requires reflection and editing that a simple tap of a record button does not. Thus, admitting video recordings to probate risks validating transient decisions, undermining the cautionary function of succession law.
Digital Attribution, Integrity, and Security Risks
In traditional succession, authenticity is verified through wet-ink signatures. In contrast, non-traditional digital formats like WhatsApp messages, emails, or simple electronic signatures suffer from a severe “attribution problem.”[31] A basic electronic signature or typed name has no biological link to the testator. If a family member gains access to a testator’s passcode, they can easily “manufacture” a will via digital messaging.[32]
Furthermore, digital files are highly susceptible to silent manipulation. Unlike paper, which shows physical alterations, a digital file’s metadata can be altered without leaving visual traces. Verifying the integrity of an electronic document requires complex metadata analysis such as timestamps, device logs, and system audits, which is costly and requires specialized forensic experts.[33] This creates an access to justice barrier, where the cost of proving a digital will’s validity in court may exceed the value of the estate itself.
Coercion and the Rise of Generative AI Deepfakes
The physical presence of witnesses under Section 2(1) serves a protective function: ensuring the testator is of sound mind and acting of their own free will.[34] This protection is entirely absent in private digital spaces. A video recording or electronic signature provides no evidence of what occurred immediately before or after the act, or who was standing “off-camera” directing the testator under duress.[35]
This risk is significantly amplified by the rise of generative AI and deepfake technology in the 4IR. AI can clone an individual’s voice and generate realistic video footage with astonishing accuracy, utilizing only a few minutes of reference material.[36] If courts admit video recordings as valid wills, they will inevitably face sophisticated digital forgeries. Without rigid, standardized cryptographic safeguards, the judiciary is entirely unprepared to police AI-generated fraud in succession disputes.
Comparative Perspectives: Global Legal Adaptations
The United States: The Uniform Electronic Wills Act
To safely integrate digital innovations, the South African legislature can draw valuable lessons from international legal frameworks, particularly the United States. In 2019, the Uniform Law Commission unveiled the Uniform Electronic Wills Act (the Uniform Act).[37] The Uniform Act allows testators to execute wills electronically and store them digitally. Importantly, it maintains the writing requirement by mandating that an electronic will must be a “record that is readable as text at the time of signing,” thereby strictly prohibiting oral or video-recorded formats.[38]
The Uniform Act was significantly influenced by the landmark Ohio case of In Re Estate of Javier Castro.[39] In the case of Castro, a hospitalized testator used a stylus on a tablet to write his will, which was signed by him and three witnesses on the screen. The court held that the tablet’s digital representation of text constituted valid writing and that the stylus stroke was a valid signature, admitting the will to probate. The Uniform Act codified this approach while allowing remote witnessing via a webcam, provided the witnesses sign within a reasonable time.[40]
Commonwealth Jurisdictions and the Dispensing Power Model
Other Commonwealth jurisdictions, such as Australia and Canada, rely on broad dispensing powers similar to South Africa’s Section 2(3). For example, in the Queensland case of Re Nichol, the court admitted an unsent WhatsApp message on the deceased’s mobile phone to probate, holding that the message’s detail and its location established testamentary intent.[41] However, comparative analysis shows that relying solely on judicial discretion has led to increased litigation, high costs, and unpredictability. This underscores the need for a pre-emptive statutory framework rather than relying on ad hoc judicial condonation.
Proposals for Legislative Reform in South Africa
Removing the ECTA Exclusion and Codifying E-Wills
To modernize South African succession law, the legislature must create a statutory synergy between the Wills Act and ECTA. First, ECTA must be amended to remove the execution and retention of wills from the exclusions listed in Schedule 1 and Schedule 2.[42] The Wills Act must be amended to explicitly regulate the execution of Electronic Wills (e-wills). This would allow testators to utilize standard computer applications such as Microsoft Word to draft their wills, satisfying the writing requirement electronically.[43]
Mandating Advanced Electronic Signatures (AES) and PKI Technology
To eliminate the attribution and integrity vulnerabilities of digital formats, the legislature should mandate the use of Advanced Electronic Signatures (AES) as defined in Section 37 of ECTA.[44] A standard electronic signature is insufficient; an AES results from an accredited process that uniquely links the signature to the user, is capable of identifying the user, and remains under the sole control of the signatory.[45]
This can be achieved by integrating Public Key Infrastructure (PKI) technology and hash functions.[46] A hash function compresses the electronic document into a unique, mathematically generated hash value or digital fingerprint. If any changes are made to the document after it has been signed even a minor act of inserting a single spacebar the hash value will change completely.[47] This allows the Master, courts, and beneficiaries to instantly verify whether the integrity of the electronic will has been compromised. The use of PKI asymmetric encryption – private and public keys ensures confidentiality and non-repudiation, offering better security than traditional pen-on-paper signatures.[48]
Remote Witnessing and Secure Storage Databases
Finally, the amended Wills Act must codify secure standards for virtual attestation and digital storage. Remote witnessing should be permitted, allowing witnesses to attest to a digital signature via recorded, secure video-conferencing platforms, which must be archived to verify the absence of duress.[49] To ensure the long-term preservation of e-wills, they should be stored on secure, encrypted databases or accredited cloud storage managed by licensed legal practitioners or a centralized repository overseen by the Master of the High Court.[50]
Conclusion
The South African law of succession stands at a historical crossroads. The transition from physical paper to digital communication is no longer a prospective possibility, but an active reality. As demonstrated by the analysis of landmark cases like Macdonald and Mabika, the judiciary has shown a commendable willingness to adapt the flexible rescue power of Section 2(3) to accommodate the digital shift. However, Section 2(3) was intended to be an exception for “near-miss” execution errors, not a primary gateway for a new digital succession regime.
The current reliance on judicial condonation creates intolerable legal uncertainty, as courts are forced to balance the strict personal drafting requirement of Bekker v Naude against the demands of equity and justice. Furthermore, non-traditional formats like video recordings and simple digital messages suffer from critical attribution, integrity, and coercion vulnerabilities that traditional laws cannot police, especially in an era of sophisticated AI-generated deepfakes.
The path forward lies in proactive legislative intervention. By removing the exclusion of the Wills Act from ECTA and codifying a structured framework for Electronic Wills, the legislature can safely bridge the gap between traditional forms and 4IR advancements. Mandating advanced electronic signatures, PKI encryption, and cryptographic hash functions will ensure that the final word of a South African testator is both highly accessible and completely secure against the fraud risks of the digital age.
Reference(S): and Bibliography
Table of Cases
Anderson and Wagner NNO v The Master 1996 (3) SA 779 (CPD).
Back NNO v Master of the Supreme Court [1996] 2 All SA 161 (C).
Bekker v Naudé 2003 (5) SA 173 (SCA).
De Reszke v Maras 2006 (2) SA 277 (SCA).
Ex Parte Estate Davies 1957 (3) SA 471 (N).
Ex parte De Swardt NNO 1998 (2) SA 203 (C).
Ex parte Maurice 1995 (2) SA 713 (C).
Ex parte Williams: In re Williams’ Estate 2000 (4) SA 168 (T).
In Re Estate of Javier Castro (Lorain County Court of Common Pleas) case number 2013ES00140 of 19 June 2013.
Kidwell v The Master 1983 (1) SA 509 (E).
Letsekga v The Master 1995 (4) SA 731 (W).
Longfellow v BOE Trust Ltd NO (13591/2008) [2010] ZAWCHC 117.
Mabika v Mabika [2011] ZAGPJHC 109.
Macdonald v The Master 2002 (5) SA 64 (O).
O’Connor v The Master 1999 (4) SA 614 (NC).
Re Nichol [2017] QSC 220.
Smith v Parsons 2010 (4) SA 378 (SCA).
Spies v Smith 1957 (1) SA 539 (A).
Taylor v Taylor [2011] ZAECPEHC 48.
Theron v Master of the High Court [2001] 3 SA 507 (NC).
Thirion v Die Meester 2001 (4) SA 1078 (T).
Van der Merwe v Master of the High Court [2011] All SA 298 (SCA).
Van Wetten v Bosch 2004 (1) SA 348 (SCA).
Webster v The Master 1996 (1) SA 34 (D)
Table of Legislation
Civil Proceedings Evidence Act 25 of 1965 (South Africa).
Copyright Act 98 of 1978 (South Africa).
Electronic Communications and Transactions Act 25 of 2002 (South Africa).
Interpretation Act 33 of 1957 (South Africa).
Uniform Electronic Wills Act, 2019 (United States).
Wills Act 7 of 1953 (South Africa).
Secondary Sources
Abbott Ryan, The Reasonable Robot: Artificial Intelligence and the Law (Cambridge University Press 2020).
Crous NA, ‘A Comparative Study of the Legal Status of Electronic Wills’ (LLM mini-dissertation, North-West University 2019).
Heyink M, ‘Electronic Signatures for South African Law Firms: Guidelines’ (Law Society of South Africa 2014).
Hirsch AJ, ‘Technology Adrift: In Search of a Role for Electronic Wills’ (2020) Boston College Law Review (B C L Rev) 827-903.
Hirsch AJ and Kelety JC, ‘Electronic-Will Legislation: The Uniform Act versus Australian and Canadian Alternatives’ (2020) Probate & Property 1-18.
Hofmann J, ‘The Meaning of the Exclusions in Section 4 of the Electronic Communications and Transactions Act 25 of 2002’ (2007) SALJ 262-26.
Mahlaela T and Monyamane L, ‘The Impact of Technology on Testate Succession in South Africa’ (2024) 27 PER/PELJ 25.
Nelson SD and Simek JW, ‘Encrypting Sensitive Emails Now a No-brainer’ (2016) Montana Lawyer 18-19.
Njotini MN, ‘Protecting Critical Databases – Towards a Risk Based Assessment of Critical Information Infrastructures in South Africa’ (2013) Potchefstroom Electronic Law Journal (PELJ) 450-481.
Paleker M, ‘Bekker v Naude: The Supreme Court of Appeal Settles the Meaning of Drafted in Section 2(3) of the Wills Act, but Creates Potential Constitutional Problem’ (2004) SALJ 27-33.
Schoeman-Malan MC, ‘Fraud and Forgery of the Testator’s Will or Signature: The Flight from Formalities to no Formalities’ (2015) TSAR 125-152.
Schoeman-Malan L et al, ‘Section 2(3) of the Wills Act 7 of 1953: A Retrospective and Critical Appraisal of Some Unresolved Issues’ (2014) Acta Juridica 78-103.
Sonnekus JC, ‘Videotestamente Naas Skriftelike Testamente’ (1990) TSAR 114-133.
Van Staden AR and Rautenbach C, ‘Enkele Gedagtes oor die Behoefte aan en Toekoms of Elektroniese Testamente’ (2006) De Jure 586-609.
[1] T Mahlaela and L Monyamane, ‘The Impact of Technology on Testate Succession in South Africa’ (2024) 27 Potchefstroom Electronic Law Journal (PER/PELJ) 25, 26.
[2] Wills Act 7 of 1953, s 2(1).
[3] Mahlaela and Monyamane (n 1) 27.
[4] Wills Act 7 of 1953, s 2(3); introduced by s 3(g) of the Law of Succession Amendment Act 43 of 1992.
[5] Mahlaela and Monyamane (n 1) 27; van der Linde, ‘Requirements in terms of section 2(3) of the Wills Act 7 of 1953: Some comments on judgments in recent case law’ (2012) 45(2) De Jure 413, 414.
[6] Wills Act 7 of 1953, s 2(1)(a)(i)-(ii).
[7] Wills Act 7 of 1953, s 2(1)(a)(iv).
[8] L Schoeman-Malan et al, ‘Section 2(3) of the Wills Act 7 of 1953: A Retrospective and Critical Appraisal of Some Unresolved Issues’ (2014) Acta Juridica 78, 80.
[9] JC Sonnekus, ‘Videotestamente Naas Skriftelike Testamente’ (1990) Tydskrif vir die Suid-Afrikaanse Reg (TSAR) 114, 120.
[10] Electronic Communications and Transactions Act 25 of 2002 (ECTA), s 2(1).
[11] ECTA 25 of 2002, s 11(1).
[12] ECTA 25 of 2002, s 12.
[13] ECTA 25 of 2002, s 4(3) read with Schedule 1.
[14] ECTA 25 of 2002, s 4(4) read with Schedule 2.
[15] Mahlaela and Monyamane (n 1) 28; J Hofmann, ‘The Meaning of the Exclusions in Section 4 of the Electronic Communications and Transactions Act 25 of 2002’ (2007) South African Law Journal (SALJ) 262-268.
[16] Schoeman-Malan et al (n 8) 85.
[17] horn v Horn 1995 (1) SA 48 (W); Back NNO v Master of the Supreme Court [1996] 2 All SA 161 (C) 170.
[18] Bekker v Naudé 2003 (5) SA 173 (SCA).
[19] Bekker v Naudé (supra) para 8.
[20] M Paleker, ‘Bekker v Naude: The Supreme Court of Appeal Settles the Meaning of Drafted in Section 2(3) of the Wills Act, but Creates Potential Constitutional Problem’ (2004) SALJ 27, 28; Bekker v Naudé (supra) para 16.
[21] Macdonald v The Master 2002 (5) SA 64 (O).
[22] Longfellow v BOE Trust Ltd NO (13591/2008) [2010] ZAWCHC 117; van der Linde (n 5) 414-416.
[23] Mabika v Mabika [2011] ZAGPJHC 109 para 11; van der Linde (n 5) 417-418.
[24] Mabika v Mabika (supra) para 15; van der Linde (n 5) 420; Ex parte Maurice 1995 (2) SA 713 (C).
[25] Taylor v Taylor [2011] ZAECPEHC 48 para 12-15; van der Linde (n 5) 421-422.
[26] Sonnekus (n 9) 114.
[27] NA Crous, ‘A Comparative Study of the Legal Status of Electronic Wills’ (LLM mini-dissertation, North-West University 2019) 10.
[28] Interpretation Act 33 of 1957, s 3.
[29] Civil Proceedings Evidence Act 25 of 1965, s 1.
[30] Crous (n 27) 12; Mahlaela and Monyamane (n 1) 29.
[31] MC Schoeman-Malan, ‘Fraud and Forgery of the Testator’s Will or Signature: The Flight from Formalities to no Formalities’ (2015) TSAR 125, 132.
[32] Schoeman-Malan (n 31) 125.
[33] MN Njotini, ‘Protecting Critical Databases – Towards a Risk Based Assessment of Critical Information Infrastructures in South Africa’ (2013) Potchefstroom Electronic Law Journal (PELJ) 450, 455.
[34] Schoeman-Malan et al (n 8) 80.
[35] Ryan Abbott, The Reasonable Robot: Artificial Intelligence and the Law (Cambridge University Press 2020) 45.
[36] Abbott (n 35) 45.
[37] AJ Hirsch and JC Kelety, ‘Electronic-Will Legislation: The Uniform Act versus Australian and Canadian Alternatives’ (2020) Probate & Property 1, 2.
[38] Section 2 of the Uniform Electronic Wills Act, 2019 (the Uniform Act).
[39] In Re Estate of Javier Castro (Lorain County Court of Common Pleas) case number 2013ES00140 of 19 June 2013.
[40] Uniform Act, s 5; Mahlaela and Monyamane (n 1) 30.
[41] Re Nichol [2017] QSC 220; AJ Hirsch, ‘Technology Adrift: In Search of a Role for Electronic Wills’ (2020) Boston College Law Review (B C L Rev) 827, 835.
[42] Mahlaela and Monyamane (n 1) 31.
[43] AR Van Staden and C Rautenbach, ‘Enkele Gedagtes oor die Behoefte aan en Toekoms of Elektroniese Testamente’ (2006) De Jure 586, 592.
[44] ECTA 25 of 2002, s 13(1) and s 37.
[45] ECTA 25 of 2002, s 38(1).
[46] M Heyink, ‘Electronic Signatures for South African Law Firms: Guidelines’ (Law Society of South Africa 2014) 20.
[47] Heyink (n 46) 20; Mahlaela and Monyamane (n 1) 29.
[48] SD Nelson and JW Simek, ‘Encrypting Sensitive Emails Now a No-brainer’ (2016) Montana Lawyer 18.
[49] Uniform Electronic Wills Act, 2019, s 5(3).
[50] Njotini (n 33) 461.
