Elektroniese testamente in die Suid-Afrikaanse erfreg

Abstract

The formalities for the valid execution of a will are found in section 2(1) of the Wills Act 7 of 1953. According to these formalities a will has to be in written form and signed by both the testator and two competent witnesses. The main reason for the inclusion of these formalities, in the Wills Act, is to prevent fraud and to assure that only the testator's true intentions are contained in his will. At first glance it appears that a will can only be valid if it is written on paper or drafted on a computer and printed out. It must then be signed by the testator and two witnesses. If a will does not comply with these formalities it is not valid and will not be given effect. An electronic will does not conform with the current interpretations of "write" and "document". In recent times the use of electronic media has grown immensely. More often than not people use some sort of electronic vehicle to draft a document or pass information to one another. It is for this reason that the law has made provision for the valid drafting of a document by means of an electronic medium. The Electronic Communications and Transaction Act 25 of 2002 was instated to regulate contracts that were made in this way. The law still requires that an electronic document must be signed for it to be valid and enforceable. Signing of an electronic document takes place by means of a digital signature. Because of the growth in the use of electronic mediums, it is has now become necessary to broaden the meaning of words like "write" and "document". Legislation and other sources acknowledge the fact that a document can also mean an electronic document and writing can also refer to the drafting of an electronic document. Consideration should be given to include electronic wills within the ambit of this legislation It is important to develop a set of formalities before giving legal effect tot electronic wills. If this is not done, each testator will draft his will differently and experiment with the technology available to him. This could lead to uncertainty and cause some electronic wills to defeat the purpose it was meant for. Although it is recommended that electronic wills be recognised, there are still some problems concerning the durability, accessibility and security of electronic documents. It can be expected that these problems will be overcome sooner rather than later. The technology concerning these aspects are growing quickly, seeing that the computer industry is now aware of these problems and trying to overcome them. However, before these problems are not overcome and a set of formalities are not developed it would be safer not to make use of electronic wills as of yet. A testator could stand the risk of his electronic will not being valid and thus dying intestate.