data to ensure that electronic wills remain unaltered to facilitate recognition of data
messages as validly executed wills.268
Having further observed that wills and codicils are universally excluded from the ambit
of electronic commerce legislation worldwide,269 the learned author contends that
since an electronic will is a document that complies with the common law ‘in writing’
requirement, common law signature and witnesses’ attestation requirement which
could be fulfilled by means of an advanced electronic signature, would ensure its
integrity. 270 The definition of a will as a document indicates that at minimum it must
be in writing.271 This contention further finds support in Coetzee’s observation that
digital signatures are secure signatures equivalent to an advanced electronic
substitute for manual signatures which serves the same purpose as a handwritten
signature, and in principle, serves an important information security purposes that
handwritten signature cannot serve because each one is unique for each document
that is signed allowing the recipient to determine whether the communication was
changed after it was digitally signed as any change will produce a different
signature.272
In the case of Van der Merwe v The Master,273 the court dispensed with the rules of
exclusion of wills, and upheld the application of data messages to accommodate an
electronic will on the basis that plaintiff proved that the deceased with whom they had
agreed to exchange wills, sent the electronic will to plaintiff, and thus, the document
had an aura of authenticity. The court ruled that the lack of signature could not be a
complete bar to a document being declared a valid will in terms of section 2(3) of Wills
Act to ameliorate formalities and technicalities over the true intention of the drafter. 274
Papadopoulos mentioned that it would have been judicious to make reference to the
provisions of the ECT Act such as integrity in assisting the court to confirm authenticity
268
Papadopoulos (2012: 93 at 104) states that meta data establishes file context in relation to file name,
format, type, size, date of location and creation.
269 Papadopoulos (2012: 93 at 97).
270 Papadopoulos (2012: 93 at 97, 104); S38 ECT Act accreditation of an advanced electronic signature is
designed as the technological tool that ensures authenticity and integrity of data messages.
271 Papadopoulos (2012: 93 at 100).
272 Coetzee (2004: 501 at 513).
273 Van der Merwe v The Master and another 2010 (6) SA 544.
274 Van der Merwe v The Master and another 2010 (6) SA 544.
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