Are Video Wills Legal in South Africa?

There is no precedent for the validity of video wills in South Africa. In order for a Will to be valid and accepted by the Master of the High Court in this country, it has to comply with the requirements as set out in section 2 of the Wills Act 7 of 1953. (These requirements are highlighted later on in this note.)

International developments

In some international jurisdictions, however (such as New South Wales, Australia and in some states in the United States of America) the issue of video Wills has come before courts who have ruled that in certain situations & provided specific requirements are met, video Wills may be declared as the Last Will & Testament of a deceased person. It, therefore, appears that times are changing with courts navigating the intersection of law and technology.

However, the importance of having a written and validly executed Will that can and will, without doubt, be registered by the Master of the High Court, should always be paramount and notwithstanding the possibility that video Wills may be approved by the Court in the future, it is absolutely recommended that no chances be taken in this regard.

Formalities in South African law

In order for a Will to be valid and accepted by the Master of the High Court in South Africa, it has to comply with the requirements as set out in section 2 of the Wills Act 7 of 1953, including but not limited to: –

The Will must be signed at the end thereof by the Testator or by some other person in his presence and by his direction.

If the Will consists of more than one page, each page must also be so signed by the Testator or by some other person in his presence and by his direction.

The said signature is made in the presence of two or more competent witnesses present at the same time.

Such witnesses must 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.

In South Africa, this issue has never been brought directly before the Court. However, in Naude and Others v Naude and Another (4349/2014) [2017] ZAECGHC 26 (26 March 2017) the Court did make use of a video recording wherein the deceased outlined what should happen to his estate on his death as evidence to prove that a written document purportedly signed by the deceased could not be declared his Last Will & Testament.

The Court was asked by the First Respondent to accept a signed Last Will & Testament (dated 14 April 2014) which she alleged was signed by the deceased on that date. In addition, she submitted a video recording she had made of the deceased on the same day he signed the Will. In the video, he outlined what should happen to his estate upon his death. His instructions in the video were similar to what he had written in the Will.

The Court held that it was apparent to some extent that the Testator while being recorded, was under the influence of alcohol at the time of the recording. In addition, when asked by the First Respondent in the video, the deceased did not know what day of the month it was despite having allegedly signed and dated his Will earlier that same day. Furthermore, even though the deceased had allegedly just dealt with the residue of his estate in the Will that very day, the deceased did not know what the term “residue” referred to. He also did not mention in the video that he had earlier that day already signed the Will dated 14 April 2014. Therefore, having regard to the overwhelming probabilities, the Court held that the deceased had not signed the document dated 14 April 2014 as alleged by the First Respondent.

The issue of the validity of video Wills has however come before the Courts in other international jurisdictions, including in some states in the United States of America as well as in New South Wales, Australia. In 2015 a Court in the latter country was asked to declare that a video of a woman purporting to amend her written Last Will & Testament was binding. The Court stated that it had never before admitted a video Will to probate.

It was also the first time the court had been asked to dispense with the requirement that a Will be in writing. The Court held that it was clear from the video that the testatrix had “made a series of short and apparently well-considered, disciplined statements of intent…that stand neatly with the Will as an alternation of the primary document”. The Court, in light of the evidence and considering there had been no objections from any of the other heirs in the estate, admitted the video as an informal Will.

The importance of having a written and validly executed Will that will, without doubt, be registered by the Master of the High Court should always be paramount and notwithstanding the possibility that video Wills may be approved by the Court in the future, it is absolutely recommended that no chances be taken in this regard.