Abstract

Keywords

Fourth Industrial Revolution; electronic communications; electronic signature; electronic wills; writing.

……………………………………………………….

1 Introduction

The formalities for the valid execution of a will have been in place for more than five decades in South Africa. Section 2(1) of the Wills Act 1

* Teresia Mahlaela. LLB LLM (University of Limpopo). Candidate legal practitioner, Legal Aid, South Africa. Email: mahlaela.teresia@gmail.com. ORCID: https://orcid.org/0000-0003-3558-4782 . The article is based on a mini dissertation (Master of Laws) entitled "A Comparative Study of the Impact of Technology on Testate Succession in South Africa" by Ms Mahlaela.

** Lesetja Monyamane. LLB LLM (University of South Africa) LLD (University of Limpopo). Lecturer, University of Limpopo, South Africa.: Email: lesetja.monyamane@ul.ac.za. ORCID: https://orcid.org/0000-0003-0999-9909.

1 Wills Act 7 of 1953 (the Wills Act).

In the light of these developments, this contribution interrogates the very real probability that the section 2(1) provisions are now obsolete. In discussing this possible obsolescence, this contribution commences with a discussion of the scope and text of section 2(1). To fully engage with this provision it is necessary to focus on the writing and signature requirements to establish the purpose served by these formalities in making a will. Secondly, we will outline the generic framework of the Fourth Industrial Revolution (4IR) and present evidence of the extent of South Africa's purported legal response to it. For context we are going to limit the purported responses to the 4IR period to issues relevant to testate succession. We then explore the relationship, or lack thereof, between the Wills Act and the Electronic Communications and Transactions Act (ECTA), 3

3 Electronic Communications and Transactions Act 25 of 2002 (the ECTA).

2 Requirements for the validity of wills

A testator will draft a will to explain how he wants his estate to be distributed upon his death. Jamneck et al define a will as "a document executed in the manner prescribed by law by a person, concerning the disposition of property and other matters within his control, to take effect after his death". 4

4 Jamneck et al Law of Succession 47.

issue of what suffices as testamentary writing. In Ex Parte Davies the court indicated that testamentary writing must identify the property bequest, the extent of the interest bequeathed, and the beneficiaries. 5

5 Ex Parte Estate Davies 1957 3 SA 471 (N).

Although the Wills Act is unclear on the meaning of a will itself, section 2(1)(a) 6

6 Subject to the provisions of section 3 bis–

"(a) no will executed on or after the first day of January 1954, shall be valid unless– (i) the will is signed at the end thereof by the testator or by some other person in his presence and by his direction; and (ii) such signature is made by the testator or by such other person or is acknowledged by the testator and, if made by such other person, also by such other person, in the presence of two or more competent witnesses present at the same time; and (iii) such witnesses attest and sign the will in the presence of the testator and of each other and, if the will is signed by such other person, in the presence also of such other person; and (iv) if the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator or by such other person anywhere on the page."

We now consider the writing and signature requirements for a will as central issues in the argument for evolution in the 4IR.

2.1 Writing

It has been stated that testamentary arrangements are done in writing and are contained in a document. 10

10 Schoeman-Malan et al 2014 Acta Juridica 85.

making of a mark", whilst signature "has a corresponding meaning". 11

11 Schoeman-Malan et al 2014 Acta Juridica 85.

Against this background, one would expect that "writing", as implied by the context of the Act, would be comprehensively defined. Regrettably, though, and despite its apparent importance for validity, the Act does not offer a definition of this term. Section 3 of the Interpretation Act 13

13 Interpretation Act 33 of 1957.

In every law expression relating to writing shall, unless the contrary intention appears, be construed as including also references to typewriting, lithography, photography, and all other modes of representing or reproducing words in visible form.

Similarly, section 1 of the Copyright Act 14

14 Copyright Act 98 of 1978.

It is worth reiterating that the Interpretation Act requires that the words must be in "visible form" to qualify as writing. Interestingly, the Copyright Act uses words like "any similar process" which, we submit, opens up possibilities for using electronic documents. This argument will be explored in detail below.

For our current purposes, Papadopoulos suggests that: 15

15 Papadopoulos 2012 SA Merc LJ 101.

[t]he main functions served by a written document are inter alia to provide that (1) a document is legible by all; (2) that it remains unaltered over time; (3) that it can be reproduced so that each party would hold a copy of the same data; (4) to allow for authentication of the data by means of signature; and (5) to provide a document in a form that would be acceptable to public authorities and the courts.

We submit that the strict enforcement of the formalities is necessary to ensure such protection because the deceased is not present to attest to the originality of his will. A reflection on the meaning of writing in terms of the Interpretation Act and the Copyright Act in particular underscores the

premise that as society and technology evolve we should not avoid questions about the adequacy of formalities from time to time. 16

16 Jamneck et al Law of Succession 69.

Furthermore, the English Club online dictionary defines writing as "the process of using symbols (letters of the alphabet, punctuation and spaces) to communicate thoughts and ideas in a readable form". 17

17 English Club date unknown https://www.englishclub.com/writing/what.htm.

2.2 Signature

The Wills Act requires that a will must be signed by the testator or any such person directed by the testator at the end of the will. 19

19 Section 2(1)(a)(i) of the Wills Act.

The location of the signature was strictly interpreted in Kidwell v The Master, 24

24 Kidwell v The Master 1983 1 SA 509 (E).

The two competent witnesses are critical if there is a dispute about the will. They will have to verify that the testator signed the will in their presence. The signature provides a direct link between a will and the testator. Outlining

a signature's traditional definition and purpose allows us to introduce and debate the use of electronic signatures below.

However, we must first reflect on the fallible nature of human beings. Despite the formalities for validity outlined in section 2(1) of the Act, sometimes a will fails to comply with these formalities. We provide a brief overview of the jurisprudence in this regard.

2.3 Condonation for failure to comply with the formalities for validity

The interpretation and application of the section 2(1) formalities have been strictly interpreted to protect against fraud by beneficiaries. 27

27 Jamneck and Williams Wills and Succession 258.

A remedial mechanism, therefore, became necessary to rescue such estates from being distributed on an intestate basis. This was affected by including subsection (3) within the ambit of the formalities provisions. Section 2(3), which discusses the court's powers, is often referred to as the power of condonation or the rescue provision. 30

30 Jamneck et al Law of Succession 78.

Section 2(3) affords the court the power to order the Master of the High Court to accept a document which does not comply with the section 2(1) formalities, provided that the court is satisfied that the testator intended the incorrectly executed will to be his last will and testament. 32

32 Jamneck et al Law of Succession 78.

There is no unanimity on the degree of compliance with the formalities for validity in order to justify condonation. Consequently, both strict and flexible interpretations have been adopted. Magid J in Webster v The Master 34

34 Webster v The Master 1996 1 SA 34 (D).

a document executed by the deceased – not someone other than the testator or even his attorney. He further stated that the provision was not intended to validate a document that does not comply with the set formalities of the Act. His reasons included that its purpose was to rectify technical non-compliance, not to give effect to completely unsigned documents. 35

35 Webster v The Master 1996 1 SA 34 (D) paras 41F-42G.

In Bekker v Naudé the Supreme Court of Appeal ended the flexible interpretation. 38

38 Bekker v Naudé 2003 5 SA 173 (SCA).

The condonation clause was a reputable intervention to support testacy. However, it is not a time-sensitive intervention in a changing society affected by technological developments. We now investigate how developments in technology have affected testate succession.

3 The Fourth Industrial Revolution (4IR) and the South African legislative response

Societies develop and change continuously over time. The development of technology is a great example of such changes and occurred in a series of industrial revolutions. Vast socio-economic changes characterise an industrial revolution. 39

39 Mohajan 2019 Journal of Social Sciences and Humanities 378.

The second industrial revolution emerged in the 1870s, 41

41 Mokyr and Strotz 1998 Storia dell'economia Mondiale 1.

computers, the internet, the World Wide Web, and wireless communication technologies characterised the third industrial revolution. 43

43 Rifkin date unknown https://www.esi-africa.com/wp-content/uploads/ Jeremy%20Rifkin.doc.

The Fourth Industrial Revolution, termed the 4IR by Klaus Schwab, is currently taking the world by storm. 44

44 Min et al 2018 International Journal of Financial Research 90.

The fast-paced breakthroughs of the 4IR, when compared to the previous revolutions, show an exponential rather than a linear pace. 48

48 Schwab 2016 https://www.weforum.org/agenda/2016/01/the-fourth-industrial-revolution-what-it-means-and-how-to-respond.

This paper intends to assess how all these changes can affect testate succession. It is no exaggeration to submit that the development of technology has affected all aspects of our lives in one way or another. As a consequence, policymakers need to change their approach in order to be current and legally relevant. 50

50 Schwab 2016 https://www.weforum.org/agenda/2016/01/the-fourth-industrial-revolution-what-it-means-and-how-to-respond.

Against this background we now explore how South African policymakers have responded to the technological era to enable society to participate. The legislature enacted the Electronic Communications and Transactions Act to facilitate and regulate electronic communications and transactions. The objectives of the Act are, amongst others, to enable and facilitate electronic communications and transactions in the public interest, 51

51 Section 2(1) of the ECTA.

compliance with accepted international technical standards in the provision and development of electronic communications and transactions. 54

54 Section 2(1)(m) of the ECTA.

As the title of ECTA suggests, it applies to electronic communication and transactions. It must be noted here that this contribution focusses on communications. Communication refers to the process by which people exchange information or express their thoughts and feelings, ways of sending information using a phone or computer, and how people express themselves so that other people will understand. 55

55 Longman Editors Longman Dictionary 1697.

We submit that ECTA is a legislative response to the 4IR. However, this Act fails to have a direct impact on testate succession, because in terms of section 4(3) 57

57 Section 4(3) of the ECTA: The sections of this Act mentioned in Column B of Schedule 1 do not apply to the laws mentioned in Column A of that Schedule.

4 Creating a synergy between 4IR, ECTA and the Wills Act

4.1 The South African position

4.1.1 Writing requirement

We noted above that the Wills Act does not explicitly indicate that a will should be in writing. This essential requirement is inferred from the provisions of section 2(1)(a) of the Wills Act. To reiterate, the following are the key objectives of a written document:

(a) Meet the intentions of the testator;

(b) Give effect to such intentions;

(c) Exist for long periods of time; and

(d) Be protected against fraud. 59

59 Crous Legal Status of Electronic Wills 12.

With these objectives in mind, we explore the meaning of writing through ECTA to establish whether an electronically written document can meet them. Our view is that the different yet related definitions of writing proffered in section 3 of the Interpretation Act, section 1 of the Copyright Act and the English Club online dictionary support the notion that writing can be done in other ways besides the traditional way of using a pen and paper. These definitions make it possible to consider electronic documents regulated by ECTA. Section 12 of ECTA provides that a requirement in law that a document or information must be in writing is met if the document or information is (a) in the form of a data message; and (b) accessible in a manner usable for subsequent reference. The term "data" means electronic representations of information in any form. 60

60 Section 1 of the ECTA.

The acceptance of these definitions does not in itself clarify the issue of their application to testate succession, because an electronically written and stored document will not suffice as a valid will unless the testator and the witnesses sign it. 63

63 Hirsch 2020 B C L Rev 835.

4.1.2 Signature requirement

In this section we consider whether a signature on an electronic document can serve the same purpose as a signature on a traditional will written on paper. Section 1 of ECTA defines an electronic signature as "data attached to, incorporated in or logically associated with other data and which is intended by the user to serve as a signature". The section defines an advanced electronic signature as "an electronic signature which results from a process which has been accredited by the Authority as provided for in section 37". 64

64 Section 37 of the ECTA provides as follows: "(1) The Accreditation Authority may accredit authentication products and services in support of advanced electronic signatures. (2) An application for accreditation must– (a) be made to the Accreditation Authority in the prescribed manner supported by the prescribed information; and (b) be accompanied by a non-refundable prescribed fee. (3) A person falsely holding out its products or services to be accredited by the Accreditation Authority is guilty of an offence."

The United Nations has enacted the UNCITRAL Model Law on Electronic Signatures, which provides guidelines to help countries draft their own electronic regulating statutes. Article 1 of the UNCITRAL Model Law defines electronic signatures as:

[D]ata in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory's approval of the information contained in the data message. 65

65 UNCITRAL Model Law on Electronic Signatures (2001).

The UNCITRAL Model Law highlights the purpose of an electronic signature as being similar to that of an ordinary signature which is currently accepted. 66

66 Article 7 of the UNCITRAL Model Law on Electronic Commerce (1996).

It is worth noting, however, that an electronic signature can be encrypted to prevent any changes after the document has been signed electronically. In essence, it protects the contents of a document from being altered after the testator has signed the document. 68

68 Heyink 2014 https://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-Guidelines

_Electronic-Signatures-for-South-African-Law-Firms_October-2014.pdf 17.

We agree with the view that the definition of "electronic signature" is broad enough to include digital signatures (not defined or mentioned in ECTA) and advanced electronic signatures. 69

69 Heyink 2014 https://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-Guidelines

_Electronic-Signatures-for-South-African-Law-Firms_October-2014.pdf 15.

Digital signatures are one of the most promising information security measures available to satisfy the legal and business requirements of authenticity, integrity, non-reputability and writing and signature. 70

70 Smedinghoff Online Law 23.

We submit that it is clear that electronic signatures and digital signatures are intended to secure the authenticity of a document and can be used interchangeably. Proceeding from the definition, scope and purpose of electronic signatures, we now discuss their creation and consider their reliability.

4.1.2.1 Digitised signature

A digitised signature is a manuscript signature that has been read by a computer and transformed into digital format. 71

71 SIGNIX Knowledge Base 2021 https://signix.helpscoutdocs.com/article/107-what-is-the-difference-between-a-digital-signature-and-a-digitized-signaturee280a8.

digital image of the handwritten signature or by writing the signature on a particular computer input device such as a signature pad. 72

72 SIGNIX Knowledge Base 2021 https://signix.helpscoutdocs.com/article/107-what-is-the-difference-between-a-digital-signature-and-a-digitized-signaturee280a8.

4.1.2.2 Digital signature and public key infrastructure (PKI) technology

These digital signatures are based on asymmetric encryption that uses two keys (which are large numbers produced using a series of mathematical formulae applied to prime numbers), which are related to one another by algorithmic functions. 73

73 Heyink 2014 https://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-Guidelines _Electronic-Signatures-for-South-African-Law-Firms_October-2014.pdf 20.

In addition to the two keys, the "hash function" can secure the protection of electronic signatures. 76

76 Heyink 2014 https://www.lssa.org.za/wp-content/uploads/2019/12/LSSA-Guidelines _Electronic-Signatures-for-South-African-Law-Firms_October-2014.pdf 20.

It is clear from the preceding text that digital signatures may be very beneficial to users. These benefits include safeguarding the confidentiality, 78

78 Nelson and Simek 2016 Montana Lawyer 18.

computationally impractical to forge a digital signature to decrypt the encrypted message within a reasonable period. 81

81 Reed Internet Law 185.

Using the hash function, an electronic signature would allow the person to decrypt the communication to detect if the communication in the form of an electronic document has been tampered with. Van Staden and Rautenbach are of the view that if science and technology can be used to fulfil the writing requirement, then legislation should be amended so that it does not prevent electronic wills from being accepted. 82

82 Van Staden and Rautenbach 2006 De Jure 592.

How then can these developments of the 4IR be applied to testate succession? We answer this question in the discussion that follows.

4.2 Practical incorporation of 4IR innovations into testate succession

This contribution will now attempt to create a synergy between the 4IR, the Wills Act and ECTA. We will first analyse how each statute fails to respond to the 4IR. We submit that the Wills Act is unresponsive to 4IR because it does not assist modern testators in understanding what exactly is required of them to fully benefit from this statute in a changing world. They must assume that a will should be in writing from other words used in the statute, and this implication tends to be understood in the narrow sense: this means pen and ink on paper.

It is submitted that members of society can use computers and other smart devices to execute their wills electronically. In fact, computer applications software such as Microsoft Word enables a user to create a written document. However, at present, the documents are usually printed out and signed by pen for the valid execution of a will. These smart devices can create and store the information without printing.

Resources are available to facilitate the execution of a will that is not handwritten or printed out. ECTA shows that in theory section 2(1) of the Wills Act can be fulfilled electronically, facilitated and regulated by ECTA, if its scope is permitted in testate succession. A testator can use a computer or smartphone to draft a will. This use meets the writing requirement in ECTA read together with the Wills Act. 83

83 Hofmann 2007 SALJ 262.

When all the formalities have been complied with, the issue of storage arises. To secure the electronic will the legal practitioner or trusted person can use a database, defined as an organised collection of electronic software or tools that is used to store information. 84

84 Njotini 2013 PELJ 455.

It is submitted that the two statutes combined could benefit society more than when they apply separately. Resources and authentication processes and signatures are available that offer similar if not more protection than a traditional signature. Reform is therefore necessary to avoid obsolescence. This reform can be encouraged by the initiatives taken in other jurisdictions such as the USA.

4.3 Lessons from the USA

The formalities to be complied with for the execution of a valid will are not unique to South Africa but are common in the legislation of other jurisdictions. In the USA the Uniform Law Commission has unveiled a new legislative product, the Uniform Electronic Wills Act (Uniform Act). Promulgated in 2019, the Uniform Act offers a mechanism for formalising wills that testators create on a computer or other portable device and never print out on paper. In terms of this legislation a testator can execute a will by signing it electronically, in either the physical or the virtual presence of witnesses. The testator can then store the will on a data file, or with a firm offering electronic will storage services, until the time when it matures. 86

86 Hirsch and Kelety 2020 Probate & Property 1.

The Uniform Act defines an electronic will as a will executed electronically in compliance with section 5(a). 87

87 Section 2 of the Uniform Electronic Wills Act, 2019 (the Uniform Act).

(a) Subject to Section 8(d) [and except as provided in Section 6], an electronic will must be:

(1) a record that is readable as text at the time of signing under paragraph (2);

(2) signed by: (A) the testator; or (B) another individual in the testator's name, in the testator's physical presence and by the testator's direction; and

(3) [either: (A)] signed in the physical [or electronic] presence of the testator by at least two individuals [each of whom is a resident of a state and physically located in a state at the time of signing and] within a reasonable time after witnessing: [(A)] [(i)] the

signing of the will under paragraph (2); or [(B)] [(ii)] the testator's acknowledgment of the signing of the will under paragraph (2) or acknowledgement of the will[; or (B) acknowledged by the testator before and in the physical [or electronic] presence of a notary public or other individual authorised by law to notarise records electronically].

The comments under section 5 make it clear that it does not abolish the Uniform Probate Code 2-502, which requires a will to be in writing. The drafters indicate that "[a]ny reasonably permanent record is sufficient". The Uniform Act requires that the provisions of an electronic will be readable as text and not as computer code, for example, at the time the testator executed the will. The Uniform Act incorporates the requirement of writing by requiring that an electronic will must be readable as text.

The drafting committee of the Uniform Act elaborated upon the concept of writing by considering the Ohio case of In re Estate of Javier Castro. 88

88 In Re Estate of Javier Castro (Lorain County Court of Common Pleas) (unreported) case number 2013ES00140 of 19 June 2013.

The questions that the court had to answer were whether the will was in writing; whether it was signed; and if it was the last will and testament of Mr Castro. However, under the Uniform Act these questions are not whether the writing exists but whether the testator signed the will and the witnesses attested it according to section 5. It should be noted that the decision to retain the writing requirement means that electronic wills cannot be made using audio or visual recordings.

In Castro the testator signed his name as an electronic image using a stylus. A signature in this form is a signature for the purposes of the Uniform Act. The definition of "sign" includes a "tangible symbol" or an "electronic symbol or process" made with the intent to authenticate the record being signed. 89

89 Section 1 of the Uniform Act.

Section 5(3) permits witnesses to be either physically or electronically present. This provision allows for the possibility of executing a will online. Thus online presence, through webcam and microphone, will be acceptable when the question of the presence of witnesses arises. The witnesses must sign within a reasonable time after witnessing the testator signing or acknowledging the will's signing.

5 Conclusion

Technological developments have moved society into a digital sphere. Evolution and innovations in this era have introduced new ways to communicate. This contribution has established that a will is a document that communicates a testator's wishes regarding the distribution of his assets upon his death. We have indicated above that society has moved through three different industrial revolutions to arrive at the present 4IR. This current revolution threatens the Wills Act with obsolescence. Therefore, for testate succession to be responsive, we propose that ECTA play a central role in data communication through a will. In exploring this role, we argue for the use of PKI technology. It is argued above that resources are available but the static legislative framework is a hindrance in advancing the law that governs wills into the digital era. The USA has promulgated the Uniform Act 2019, which regulates electronic wills. It is clear then that electronic wills are a possibility that the South African legislature must heed. Electronic wills can become a reality by ensuring a synergy between the Wills Act and ECTA by amending both Acts or introducing new legislation.

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List of Abbreviations