Electronic signatures and wills: Are they valid or just an invitation to litigation?

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Electronic signature

In Mmelesi v Mokgoro, the High Court heard an application for leave to appeal in respect of an earlier judgment handed down by one of its judges. The judgment ordered the Master of the High Court to accept the late Jennifer Mokgoro’s will, which was signed electronically, instead of signing in wet ink as is generally accepted in our law for purposes of complying with the Wills Act 7 of 1953.

The deceased had two wills, signed in 2014 and 2021 respectively. The 2014 will complied with the requirements of a valid will, whereas the 2021 will was signed electronically.

The key difference between them concerns the deceased’s share in a property. In terms of the 2014 will, this share was bequeathed to GD Mmelesi (the deceased’s life partner). In terms of the 2021 will, it was bequeathed to the deceased’s children and granddaughter.

The applicants, the executor (the deceased’s son) and other family members, applied in terms of section 2(3) of the Wills Act for the 2021 will to be recognised as valid despite non-compliance.

Mmelesi opposed the application. He argued that certain provisions of the Electronic Communications and Transactions Act 25 of 2002 (Ecta) does not apply to the Wills Act, that execution of a will is prohibited by Ecta, that the Wills Act does not provide for electronic signatures and that there was non-compliance with requirements for a valid will as per the Wills Act.

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Does the Electronic Communications and Transactions Act apply?

The court disagreed with Mmelesi’s contentions and held that the provisions of Ecta does not preclude the applicants from seeking relief in terms of section 2(3) of the Wills Act.

The applicant’s argument sought to invoke section 2(3) of the Wills Act because of non-compliance with the Wills Act, irrespective of the will being signed in electronic format.

In line with the applicants’ reasoning, the court held that a testator’s mistaken reliance on an electronic signature should not be an impediment to the intention of the testator for purposes of an application in terms of section 2(3) of the Wills Act.

The court firstly dealt with whether the deceased had drafted the 2021 will. It was evident that a certain financial institution had drafted the 2021 will and as such the court found that this requirement had not been fulfilled.

The court however found that it was clear from the nature of the difference between the 2014 will and the 2021 will that a change in who was to benefit in the deceased’s half share of the property could only have been made on her direct instruction.

This was also supported by email correspondence between the deceased and the financial institution, confirming her direct instructions and that she had accepted the 2021 will as her own.

The court found that it was clear from the email that the deceased intended the 2021 will to be her last will and testament.

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Leave to appeal

Mmelesi applied for leave to appeal on similar grounds to that on which he opposed the initial court proceedings.

The court applied section 17(1) of the Superior Courts Act as the law that states that an appeal can only be allowed if there is a real chance that another court would decide the case differently or if there is some compelling reason why the appeal should be heard.

The court found that there was no reasonable prospect that another court would come to a different decision. It simply involved applying an existing section of the Wills Act and the basic facts needed to apply that section was not in dispute.

Finally, the court confirmed that the Ecta does not prevent the use of section 2(3) of the Wills Act in this type of situation.

Mmelesi’s application for leave to appeal was accordingly dismissed.

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Conclusion

As it stands, the court reaffirmed that where a deceased’s intention is clearly established, a court may overlook formal defects in a will under section 2(3) of the Wills Act, even if the will exists only in electronic form with electronic signatures.

It will be of interest whether attempts to challenge this outcome on further appeal will succeed without strong prospects of success or compelling reasons.

However, the outcome of the Mmelesi case is not to condone non-compliance with the Wills Act but to rather highlight the importance of strictly following the guidelines when drafting a will to avoid disputes and costly court proceedings.