A comparative study of the impact of technology on testate succession in South Africa

Abstract

We live in a Fourth Industrial Revolution(4IR) era where people exchange goods and services through the internet. Such transactions and communications are regulated by the Electronic Communications and Transactions Act (ECTA) 25 of 2002. The ECTA however amongst others, excludes the execution of testamentary wills from its application thus leaving no room for electronic wills. The execution of a valid will in South Africa is governed by the Wills Act 7 of 1953. Against this background, the study investigates whether the presence of enhanced 4IR innovations and methods have the potential to render the Wills Act obsolete and how the exclusion in the ECTA will contribute towards the formation of legal gaps in the law of succession. In confronting these questions, the study seeks to create a synergy between the two abovementioned statutes. The formalities of a valid will are contained in section 2(1) of the Wills Act, it can be deduced from them that a will should be in writing and signed by the testator and two witnesses. Any will not complying with the formalities is dependent upon the discretion of the High Court for validity as per section 2(3) of the Wills Act. The cases of MacDonald v The Master 2002 5 SA 64 (N) and Van der Merwe v The Master 2010 6 SA 546 (SCA) have confronted issues that relate to wills executed in electronic formats. The study interrogates the meaning of ‘writing’ and ‘signature’ and their significance and probes whether they can be fulfilled using electronic means. A comparative approach is adopted to establish the status of electronic wills in the USA and UK. The USA has promulgated legislation to deal with electronic wills and the UK has initiated the process of adopting their own electronic wills legislation in response to the 4IR. With the lessons learned from these jurisdictions the study makes recommendations on how synergy can be created between the Wills Act and the ECTA.