Make sure you sign your will with a pen

The Northern Cape High Court recently ordered the Master of the High Court to accept a will that was signed electronically as a valid will.

Jan du Plessis, incoming chief executive officer of the Fiduciary Institute of Southern Africa (FISA), says this does not mean it is a good idea for you to sign your will electronically – wills are supposed to be signed by you in writing and two people should witness you signing it.

He says that the Wills Act only recognises what is known as a statutory or underhand will – a paper document that is written, signed by hand and attested.

Wills are excluded from the provisions of the Electronic Communications and Transactions Act and therefore cannot be executed with electronic signatures, Du Plessis says.

Court accepts electronically signed will

While the Northern Cape High Court hearing Mokgoro and Others v Master of the High Court, Kimberley and Others [2025] ZANCHC 60 decided that the will of the late Jennifer Yvonne Mokgoro was a valid will, the will was only accepted after some of her heirs launched the High Court case and proved that Mokgoro intended the will to be hers.  

Mokgoro was a Constitutional Court Justice, who at the time of her passing in May 2024 was no longer in active service.

According to Du Plessis, she left two wills, one dated 2014 and one dated 2021. The 2021 will was not accepted as her valid will by the Master of the High Court, since it was signed by Mokgoro electronically under the mistaken belief that this was acceptable.

The contents of the two wills were basically the same, except for one clause in which she bequeathed a share of her property in the Magersfontein golf estate in Kimberley.

In the 2014 will, Mokgoro left her half share of the property to her life partner David Mmelesi. In the 2021 will, she left the share in the same property to her three sons and her daughter in equal shares.

The children, the executor and one of Mokgoro’s grandchildren approached the Northern Cape High Court to compel the Master of the High Court to accept the 2021 will as a valid will in terms of section 2(3) of the Wills Act. The application was opposed by Mmelesi.

Provisions for the invalid will

The Wills Act provides that a document drafted or executed by a person who has since died and who intended that document to be their will or an amendment of their will, can be presented to a court in order for the documents to be accepted as a will or amendment of a will for the purposes of the Administration of Estates Act, even if it does not comply with all the formalities of the Act that are required for a will to be valid.

In his judgment on the case, Judge Lawrence Lever referred to a Supreme Court of Appeal ruling (Van der Merwe v The Master 2010 (6) SA 544 (SCA))  which found that failure to comply with the formalities prescribed by the Wills Act should not frustrate or defeat the genuine intention of the testators.

Judge Lever therefore said he could see no reason why mistaken reliance on an electronic signature or electronic transmission or storage of a will should be allowed to frustrate the genuine intention of a testator or testatrix as long as “the foundational facts required” in terms of the Wills Act could be established.

Court looks for three things

Citing another case, Lever said there are three requirements that need to be established in order for a document that does not meet the requirements of the Wills Act to nevertheless be regarded as a valid will:

• The document needs to be drafted or executed by the person concerned;
• The person must have died in the interim; and
• The person must have intended that document to be their will.

Lever found that Mokgoro had made direct input in the drafting of the 2021 document and as she had sent an email to the witnesses wherein she requested them to electronically sign the 2021 document, it was clear that she had accepted the 2021 will as her own.

The Wills Act requires the deceased “draft” or “execute” the document that they intend to have regarded as a will. The judge said executing the will should be interpreted in the ordinary sense of the word and Mokgoro could be said to have executed it as she had put it into effect.

The court therefore ordered the Master to accept the 2021 document as Mokgoro’s last valid will.

Online wills

Du Plessis said that it is possible to get a will drawn up online but you must ensure that you print and sign it in front of two witnesses. You can then scan and send it electronically but the original needs to be kept safe and it must be submitted to the Master after you pass away.

He also says that you should not leave any doubt about the validity of your will, because going to court to prove the validity of will delays an estate and costs money.

Lastly Du Plessis says that having your will signed physically in the presence of two witnesses will make it less susceptible to fraud.