Formalities in the Wills Act: More Than Mere Technicalities

Under the Wills Act, a valid will generally must be:

1. In writing
2. Signed by the testator
3. Signed in the presence of two competent witnesses
4. Properly executed in a manner that clearly confirms final testamentary intention

These requirements serve a critical evidentiary purpose, in that they reduce any uncertainty about whether the document is genuine and whether it truly represents the final wishes of the deceased.

The Court in Kotzee and Others v J.D.B and Others (2172/2024) [2026] ZAMPMHC 24 emphasised that compliance with formalities is not optional. The court noted that a will is “one of the most important documents a party will sign in their lives” and therefore demands strict adherence to execution requirements.

Section 2(3): The “Safety Valve” for Defective Wills

Section 2(3) of the Wills Act allows a Court to validate a document that does not comply with formal requirements so long as it is satisfied that:

1. The document was drafted or executed by the deceased; and
2. The deceased intended it to be their last will and testament.

This provision is designed to prevent injustice where a clearly intended will fails due to technical defects.

However, as reaffirmed in Kotzee and Others v J.D.B and Others, Courts apply this provision cautiously. The Court stressed that it must be “expressly and blatantly clear” that the document reflects the deceased’s intention. Where the evidence is unclear, the court cannot speculate.

The Risks of Informal or Unverified Documents

The facts in Kotzee and Others v J.D.B and Others illustrate the dangers of informal estate planning. In this specific case, the disputed document:

1. Was electronically signed
2. Was not witnessed
3. Had no clear evidence of authorship
4. Was materially different from earlier draft wills
5. Was discovered in contested circumstances

The court found that there was insufficient evidence to establish that the deceased had drafted or intended the document as her final will. As a result, the application to validate the document under section 2(3) failed.

The court emphasised that allowing such a document without proper proof would effectively open the door to speculation and potential fraud, undermining the entire purpose of testamentary formalities.

Electronic Signatures and Modern Estate Planning

A notable aspect of the judgment in Kotzee and Others v J.D.B and Others is its view on electronic signatures.

The Court acknowledged that while the law still generally requires traditional execution formalities, technological developments cannot be ignored. Importantly, the court held that an electronic signature is not automatically disqualifying, but only if it can be proven that:

1. The deceased applied the signature; and
2. The document was intended to serve as their will.

The difficulty in the case was not the electronic signature itself, but the absence of evidence linking the signature to the deceased’s conscious act and testamentary intention.

Key Legal Principles Reinforced by the Judgment

The judgment reinforces several important principles:

1. Substance Over Form Has Limits
   While courts may sometimes prioritise substance over strict form, they will not do so where intention is uncertain.
2. Intention Is Central
   The decisive question is always whether the deceased intended the document to operate as their final will.
3. Courts Will Not Speculate
   If intention cannot be proven on a balance of probabilities, the Court cannot “fill in the gaps.”
4. Section 2(3) Is Not A Cure For Poor Estate Planning
   The provision is a remedial mechanism, not a substitute for proper execution.

Practical Takeaways

The case highlights several practical takeaways:

• Wills should always be signed in the presence of two witnesses
• Electronic wills should be used cautiously unless compliance with legal requirements is clear
• Drafts, informal notes, and incomplete documents are highly risky
• Proper execution is essential to avoid litigation after death
• Clear evidence of intention and authorship is critical if a will is later challenged

The decision in Kotzee and Others v J.D.B and Others serves as a stark reminder that testamentary freedom depends on procedural discipline. Courts are willing to give effect to imperfect wills, but only where there is compelling, reliable evidence that the document truly represents the deceased’s final intentions. Without that certainty, even documents that appear authentic may fail, leaving estates to be distributed according to earlier wills or intestate succession rules.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.