Where there’s a Will, there’s a way

Garry Hertzberg, practising attorney at Dewey Hertzberg levy and Host of the Laws of Life with Garry Hertzberg on Cliffcentral.com, writes:

In an Australian case very recently a man wrote an SMS to his brother; in the message he detailed his last wishes, leaving his entire estate to his brother and nephew. He did not even send the message before tragically taking his own life.

The Australian court was called on to decide if the unsent message could be accepted as the man’s last will and testament. The court considered if this message was, in fact, the man’s last wishes. They decided that because there was so much detail in the message, such as the man’s bank account details and where he kept cash in his house, that he intended the message to be his last will.

In South Africa there are certain requirements that must be met for a will to be considered valid, such as being a physical document, witnessed and signed, but how have our courts looked at these matters?

Our courts have dealt with this on a few occasions; in one a man had left a written note that said that his will was on his computer at his workplace, including specific directions to access the file with passwords. This will was accepted as valid.

In another matter, two friends agreed to leave their respective estates to each other. They both drafted their wills and emailed them to one another. One did not do anything further, he just left it at that and on his passing the survivor wanted the emailed will to have effect. The court agreed and upheld this unsigned, un-printed will.

It appears that our courts are embracing the electronic age, and using their discretion to condone a will to allow electronic wills to be accepted.

It is likely that our courts would go further and allow text message wills in the right circumstances.

Write to us by emailing rkg@caxton.co.za