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Wills court case: Dryden v Harrison and Others

The Western Cape Division of the High Court was approached by the applicant to order the Master of the High Court to accept an e-mail message as the last will and testament of a deceased person under the provisions of section 2(3) of the Wills Act, 7 of 1953.

The message (addressed to the applicant) reads as follows:

“Hi,

This serves as my final will and testament.

If I die, all my assets and investments go to Natasha Dryden. If Natasha’s death precedes mine, the entire estate goes in equal portions to my brother and sister or their children if their deaths proceed (sic) me.

My life policies must all g (sic) to Natasha.

Sean”

The deceased was previously married to the third respondent and made a valid will in October 2006 in which he bequeathed the whole residue of his estate to her. The marriage ended in divorce in April 2011. The deceased died in September 2016. The e-mail message was sent on 4 January 2016 after the deceased assisted the first respondent (a sibling) with her mother-in-law’s deceased estate. The following day he sent the e-mail to the applicant.

After the deceased’s death the 2006 will was handed in at the office of the Master and was accepted as the deceased’s last will. Due to the absence of compliance with the required formalities the Master refused to accept the e-mail as a will, which refusal led to the application to the High Court.

The court (Nuku J) distinguished between a document in which a now deceased person explains how his/her assets should devolve after death, and a document that is intended to be a last will and testament. The intention became the central enquiry under section 2(3) as the court accepted that the deceased did draft and send the e-mail.

The court found that the deceased had previously executed a valid will (2006) and that all the evidence pointed to him being a careful and meticulous person. The court found it unlikely that he would have intended the e-mail to be his will. He may well have intended to reassure the applicant the he will make her the sole beneficiary in his will, but he never executed a will to give effect to this.

The application was dismissed with costs.

Click here to download a PDF of the court case.

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