In search of clarity regarding the condonation of electronic documents under section 2(3) of the Wills Act: exploring an act-based approach and lessons from Australian law

Abstract

Technology pervades every aspect of modern-day life, and the legal landscape is no exception. A prime example is the issue of electronic wills. Being excluded from the ambit of the Electronic Communications and Transactions Act 25 of 2002, e-wills are currently a grey area in South Africa, with no laws governing them. Until this changes, a proper understanding of section 2(3) of the Wills Act 7 of 1953 – the so-called condonation provision – offers a way to accommodate electronic wills. Yet section 2(3) faces certain challenges relating to its interpretation and application, particularly as it pertains to electronic documents. This contribution presents an overview of MacDonald, Van der Merwe and Dryden  three instances where the South African courts were called upon to adjudicate matters involving the condonation of electronic documents. Unfortunately, these judgments did little in the way of providing clarity, and Dryden, in particular, dashed all hope of certainty surrounding the condonation of electronic documents. In search of solutions, the paper examines Faber’s proposed act-based model as well as the current approach in Australia. The act-based model is suggested as a way to crystallise what our courts should be focusing on in adjudicating condonation applications, namely the act of testation, which comprises the written manifestation of the testator’s dispositive intention along with animus testandi. The two-part intention requirement in Australian law offers solid substantiation for this. Another lesson to be drawn from the Australian approach is the need for a broad statutory definition of “document” that includes various electronic forms, such as computer files, messages on mobile phones, and emails. This flexibility would better meet society’s evolving needs in a digital era and would help our courts establish the scope of application of the condonation provision. If South African law wishes to keep pace with international e-will trends, it will have to adapt and make more adequate provision for
electronic wills.