A comparative study of the legal status of electronic wills
Crous, N. A.
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People are using technology to make their lives more convenient and to save time; they no longer conclude transactions in the traditional way but do the majority of their transactions electronically. South Africa promulgated the Electronic Communications and Transactions Act (ECTA) 25 of 2002 to regulate all electronic transactions, but the scope of the ECTA does not extend to wills. Wills are regulated by the Wills Act 7 of 1953. The requirements as set out in section 2(1) of the Wills Act 7 of 1953 pose two problems for electronic wills, namely writing and signature. The possible condonation of electronic wills in terms of section 2(3) of the Wills Act is explored with the focus on MacDonald v The Master 2002 5 SA 64 (O) and Van der Merwe v The Master 2010 6 SA 546 (SCA). These two cases made reference to the document in electronic format, but the hard copy was eventually condoned. In 2014 at the FISA conference it was stated that South Africa could learn from the United States of America, Australia and Canada, as these countries have made leading developments in the area of electronic wills. This study aims to establish the status of electronic wills in South Africa in comparison to certain states of the United States of America, Australia and Canada. The functional and problem solving comparative approach is used to determine whether electronic wills are valid in these countries; to determine how they are dealing with electronic wills; and if they were able to overcome the requirements of writing and signature and found workable solutions. The findings included that the state of Nevada has legislation that ensure the validity of electronic wills. The governor of the state of Florida rejected legislation as it did not provide sufficient protection to the testator. In the states of Ohio, Queensland, New South Wales and Quebec the courts condoned an electronic will created on a Samsung tablet, I-phone, and computers. The courts, in these states were able to condone an electronic will, because of the broad definitions of "writing", "signature" and "document" and the liberal interpretation thereof. It is recommended that South Africa should amend the current legislation to ensure the validity of electronic wills. The law should develop as the technology advances and improves.
- Law