In Hendrik Van der Merwe v Master of the High Court and others the Supreme Court of Appeals decided that an unsigned will was valid.
In 2004, John Henry Munnik van Schalkwyk (the deceased) executed a valid signed will nominating the SPCA as his sole beneficiary.
The deceased formed a close friendship with the Applicant, Hendrik van der Merwe. The two friends decided that they would each execute a will in terms of which the other would be the sole beneficiary of his deceased estate. Both were unmarried and neither had descendants or immediate families to whom they could bequeath their estates. Following on these discussions and in accordance with their agreement van der Merwe duly executed his will. The deceased sent van der Merwe an e-mail on 26 July 2007 containing a draft will nominating van der Merwe as his sole beneficiary. Unfortunately, he died before he signed the will.
The formalities required in the execution of a will are set out in s 2(1) of the Wills Act. The relevant parts of s 2(1)(a) provides:
‘(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; and . . .’
On the other hand, s 2(3) of the Act sets out the power of a court in relation to a will or amendment thereof which does not comply with the prescribed formalities. It reads as follows:
‘If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).’
The court found that the validity of a will does not end with the formal requirements set out in the Wills Act. It found that is important to honour the testator’s proved last wishes and ordered the Master of the High Court to accept the emailed will as the will of the deceased.