With the increasing use of digital platforms in everyday life, the law is often required to adapt to new and evolving circumstances. One such development is the question of whether a will that exists only in electronic form, and which has been electronically signed, can be regarded as valid in South African law. As more individuals rely on digital communication and document storage, this issue is likely to become increasingly relevant.
This issue was recently considered by the High Court in Mmelesi v Mokgoro and Others (2026). The matter arose following the death of the deceased, where two different wills came into contention. The first was a 2014 will, which complied with all the formal requirements of the Wills Act 7 of 1953. The second was a 2021 document, which existed only electronically and bore electronic signatures, rather than the traditional handwritten signatures required by law. Notably, the 2021 document had been stored electronically by an independent financial advisor, further raising questions about the reliability and authenticity of such documents.
The dispute between the parties centred on the distribution of a fixed property. In terms of the 2014 will, the deceased’s share in the property was left to her life partner. However, the 2021 document provided that the same property would instead devolve upon her children and granddaughter. The deceased’s children supported the validity of the later document, while the life partner opposed it. This created a clear conflict between strict compliance with legal formalities and the alleged intention of the deceased.
The central legal question before the court was whether the 2021 document could be recognised as the deceased’s valid last will and testament, despite its non-compliance with the formal requirements prescribed by the Wills Act. In particular, the court had to consider whether the provisions of the Electronic Communications and Transactions Act 25 of 2002 prevented such recognition, given that certain transactions are specifically excluded from electronic execution.
In addressing this issue, the court relied on section 2(3) of the Wills Act, which allows a court to recognise a document as a valid will, even where it does not comply with all formalities, provided that certain requirements are met. These requirements include that the document must have been drafted by the deceased and that the deceased must have intended the document to be their final will. This provision has increasingly been used by courts to prevent injustice where strict compliance with formalities would otherwise defeat a clearly expressed intention.
Significantly, in this matter, it was not disputed that the deceased intended the 2021 document to serve as her last will and testament. This intention was accepted by the parties and played a decisive role in the court’s reasoning. The court further found that there is nothing in the Electronic Communications and Transactions Act which expressly or by necessary implication excludes the operation of section 2(3) of the Wills Act. In other words, the existence of electronic legislation does not automatically invalidate documents of this nature.
Once the court was satisfied that the necessary jurisdictional requirements had been met, it held that it had no discretion in the matter and was obliged to recognise the 2021 document as a valid will. The court therefore ordered the Master of the High Court to accept the electronically signed document for purposes of administering the deceased estate. This outcome reinforces the principle that substance should prevail over form where the intention of the deceased is clear.
An application for leave to appeal was subsequently brought by the life partner. However, the court dismissed the application, finding that there were no reasonable prospects that another court would reach a different conclusion. The court further held that there were no compelling reasons to justify an appeal, despite arguments that the matter raised novel legal questions relating to electronic documents. The court emphasised that the legal principles applied were already well established.
This judgment is significant in that it confirms the willingness of South African courts to give effect to the intention of a deceased person, even in circumstances where traditional formalities have not been strictly complied with. It also illustrates that the law is capable of accommodating modern methods of communication and documentation, including the use of electronic signatures. However, it should not be interpreted as a blanket acceptance of all electronically created wills.
That said, the case also serves as an important reminder of the risks associated with informal or non-compliant wills. While courts may, in appropriate circumstances, recognise such documents, this often results in costly and time-consuming litigation between family members. The outcome in each matter will always depend on the specific facts and the available evidence.
It remains advisable for individuals to ensure that their wills are properly drafted and executed in accordance with the prescribed legal requirements. This not only provides legal certainty but also minimises the risk of disputes arising after death. Professional assistance can play a crucial role in ensuring that a will is both valid and enforceable.
Ultimately, this decision highlights the importance of both legal certainty and practical foresight. Although the courts may intervene to uphold a person’s final wishes, taking the necessary steps to ensure compliance with the law remains the most effective way to avoid disputes and to ensure that one’s estate is administered efficiently.
Lareza Vermaak