Mokgoro and Others v Master of the High Court, Kimberley and Others [2025] ZANCHC 60
The deceased left two wills, one dated 2014 and one dated 2021. The will, dated 2021, was not accepted by the Master, since it was signed electronically. Wills are excluded from the provisions of the Electronic Communications and Transactions Act, 25 of 2002 and therefore cannot be executed with electronic signatures.
The contents of the two wills were basically the same, except for clause 3. In the 2014 will the deceased left her share in a property in the Magersfontein estate to her life partner DGM. In the 2021 will, she left the share in the same property to her children.
The applicants (the executor and children and one grandchild of the deceased) approached the Northern Cape High Court on application in terms of section 2(3) of the Wills Act to compel the Master, the first respondent herein, to accept the 2021 document as a valid will. The application was only opposed by the second respondent, the deceased’s life partner, DGM.
The Court (Lever J) followed Van der Merwe v The Master 2010 (6) SA 544 (SCA) at par 14 where it was found that failure to comply with the formalities prescribed by the Wills Act should not frustrate or defeat the genuine intention of the testators, hence the Court said the following at par 46: “I can 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 if the foundational facts required for an application under section 2(3) of the Wills Act can be established.”
The Court found that there was direct input from the deceased in the drafting of the 2021 document and it could only have been on her direct instruction that the change in who was to benefit from her share in the Magersfontein property could have been made. The Court further found that due to the fact that the deceased also sent an e-mail to the witnesses wherein she requested them to electronically sign the 2021 document made it clear that she had accepted the 2021 will as her own. This is confirmed by the following passage in the said e-mail which reads as follows: “Please do not see my humble request as a burden because I have done all I can to make my last will and testament as fair and uncomplicated as I can. That is why it is so brief.”
The Court found that the above may not be sufficient under the strict interpretation of the word “draft” in section 2(3) of the Wills Act, as required in Bekker v Naude 2003 (5) SA 173 (SCA) at par 20. This specific section requires that the deceased “draft” or “execute” (my underlining) the relevant document.
The Court then found that the word “execute” must bear its ordinary grammatical meaning in this context, otherwise it would render section 2(3) of the Wills Act nugatory and of no useful purpose. Accordingly, the Court found that the deceased can be said to have executed the 2021 will as required by section 2(3) of the Wills Act.
The Court granted the relief sought and ordered the Master to accept the 2021 document as the deceased’s last valid will. The second respondent was ordered to pay the party and party costs on scale B.