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Your will lies at the heart of ensuring that your loved ones will be able to cope financially once you are gone, so it is of course vital that it be both valid and an accurate reflection of your wishes.

A little-known danger in this regard is that you might inadvertently disqualify one or more of your intended heirs from inheriting. We discuss this danger, and the law and practicalities involved, in the context of a High Court fight between a deceased testator’s children from two different marriages.

The outcome provides yet another warning to have your will prepared for you by a professional.

“Death is not the end. There remains the litigation over the estate.” (Ambrose Bierce)

Your will (“Last Will and Testament”) will always be the keystone of your estate planning, and a recent High Court decision sounds yet another warning to beware the “do your own will” concept. By not having his will drawn by a professional, a father inadvertently caused one of his children to be disqualified from inheriting her intended share, whilst her husband was disqualified from being appointed as executor.

Who is disqualified from inheriting?

Our law, in the form of the Wills Act, provides that no one (or their spouse) can receive “any benefit” under a will if –

• They signed it as a witness (unless it was also witnessed by two other competent people not receiving any benefit), or
• They signed it for the testator (even though in their presence and at their direction), or
• They wrote out the will or any part of it in their own handwriting.

“Any benefit” in this context means not just inheritance as an heir, but also appointment as executor, trustee or guardian.

A court can only allow such a person to inherit “if the court is satisfied that that person or his spouse did not defraud or unduly influence the testator in the execution of the will”. Importantly (as we shall see below), it is up to the heir to prove the absence of any fraud and undue influence.

As the Court put it: “This disqualification exists in order to prevent falsity and fraud, and to prevent ‘the exertion of undue influence over people in bad health or in feeble state of mind’. This is because the fact that someone who stands to benefit from the death of a testator in terms of a will, and who is involved in the drawing of the very will in which that benefit is declared, ineluctably invites speculation that he or she may have improperly influenced the testator in the framing of his final testament, more particularly so where the will is executed at a moment of crisis in the testator’s life.”

If the beneficiary would have inherited anyway under intestacy (i.e. if the deceased had not left any valid will at all) they may still inherit but no more than the value of their intestate share.

The facts of the family fight

• In poor health and realising he needed a will, the testator had asked a friend to help him draw one. The friend produced a typed will, in terms of which each of the testator’s three children (from two different marriages) received one third of his estate. In addition a son-in-law was appointed as executor.
• The will was, said the Court, “slightly unusual” in that it included a narrative on the father’s difficulties with his third wife, but the real problem (as it turned out) came from the fact that annexed to it was a four-page typed schedule of 69 assets with spaces against each of them for insertion of the name of the child to receive that asset. Critically, those names were filled in by hand by one of the daughters – on, she said, her father’s instructions.
• The will and schedule were properly signed and witnessed, and the father died five days later.
• As is regrettably all too common when a deceased leaves behind children from more than one marriage, a fight developed between them, with a claim that the schedule of assets did not reflect the father’s wishes through either fraud or undue influence.
• The end result (much bitter dispute over facts later) the Court held that the daughter who had completed the names on the schedule by hand was disqualified from inheriting any more than her share on intestacy, and her husband was disqualified from being appointed as executor.

The bottom line

All that dispute, uncertainty and legal cost could have been avoided had the father called in a competent professional to draw his will for him (preferably long before his illness struck). Don’t make the same mistake!

Property owners (separate title holders as well as those in community schemes), bodies corporate and building contractors should all understand their risk of being sued if a dangerous situation exists or develops on a property or in a complex.

We discuss these risks, and how to address them, with reference to a High Court claim for R3m brought by a mother on behalf of her young son who was electrocuted when he tried to turn on a tap.

The tap had been electrified through the negligence of several contractors, and this dangerous situation had been compounded by the negligence of others. The court’s assessment of which of the various parties involved must pay damages, and why, provides valuable lessons for all role-players.

A recent High Court decision saw both a sectional title unit owner and his cupboard contractor held liable for damages suffered by an 11-year-old boy electrocuted by a communal tap. The complex’s body corporate and an electrician were also sued but escaped liability.
The reasons given by the Court for these contrasting outcomes provide valuable lessons for property owners, contractors, and bodies corporate.

Electrocuted when he turned on a tap

• You don’t expect to be electrocuted when you turn on a tap, but that is what happened to an unfortunate boy, aged 11, who had offered to wash his mother’s car in a residential complex.
• When he touched a communal tap to fill up a bucket of water he was electrocuted and unable to remove his hand for 1 to 2 minutes. Fortunately the tenant of the unit which was the source of the electric current arrived home in time to switch off the electricity so that the boy could be rescued.
• He was rushed to hospital with serious injuries and his mother sued all the role-players for more than R3m in damages on his behalf.
• To simplify as much as possible some very complicated facts, a cupboard contractor had been brought in to do work in the unit by the owner’s agent/employee at the request of a tenant. The contractor employed two workers who caused the initial problem by drilling through a wall and damaging the electrical insulation.
• The owner’s agent then contracted an electrician to fix the problem, but he only compounded the danger by bungling the repair job and leaving the plumbing live.
• The tenant, shocked (electrically, presumably also figuratively) when she turned on taps in the unit, switched off the electricity and reported the danger to the agent. Unfortunately the two workers, in her absence the next day, switched it on again – thus creating anew the dangerous situation that later that day led to the boy’s electrocution.

Let’s have a look at some of the legal principles that led the Court to its decision in regard to each of the role-players –

Your agent or employee doesn’t tell you of a dangerous situation – are you liable?

There was a dispute over whether the owner’s “agent” was legally an agent or an employee, and whether or not he had told the owner of the dangerous situation. But it made no difference, held the Court – the “agent’s” knowledge of the dangerous situation in the unit was attributed to the owner because (1) he had acquired that knowledge in the course of his employment, and (2) in the circumstances he had a duty to report it to the owner.

Make sure your agents and employees are trustworthy enough to tell you about any dangerous situations in your property!

Are you liable for your contractor’s negligence?

Clearly the workers employed by the contractor had caused the dangerous situation, firstly by damaging the electrical insulation and secondly by turning the electricity back on knowing of the danger. The contractor was accordingly liable, but what about the property owner who had employed him?

Our law is that you are not automatically liable for your contractor’s negligence, but you must “exercise that degree of care that the circumstances demand”. On the basis that “It is the principal, who selects his agent and represents him as a trustworthy person, and not the other party to a contract who has no say in the selection, who bears the risk……” (emphasis supplied), the Court found both the contractor and the unit’s owner liable for “the negligent omissions and/or acts on the part of their agents/employees.”

In any event both the “agent’s” inaction and the actions of the two workers “jointly contributed to the cause of the electrocution of the minor. Had either acted as they ought to have, the minor would not have been electrocuted.”

You are at risk for the conduct of any contractors and employees on your property, so again make sure they are trustworthy!

When is a body corporate liable?

A body corporate is as much at risk of being sued as any individual owner in a case such as this – it was presumably sued in this matter on the basis that the tap in question was a “communal” one and therefore under its control.

Its security officers had become aware of the situation when they queried the presence of the workers in the complex. However the claim against it failed as the evidence was that the child’s electrocution “was unforeseeable as far as it [the body corporate] was concerned. It had no duty to do anything while it was unaware of the danger posed. There had never been any problem with the electrical installation and it follows that what occurred was not reasonably foreseeable to it. Immediately the dangerous situation was brought to its attention it acted immediately.”

As a body corporate, take all reasonable steps to prevent dangerous situations arising in the complex in the first place, and take immediate action to rectify any that come to your notice!

What about the negligent electrician and the “chain of causation”?

Our law is that you are only liable if there is a “chain of causation” between your negligence and the damage resulting. So you can sometimes escape liability if there is a new “intervening cause” that interrupts that chain of causation.

In this case, the electrician’s failure to do the repairs properly was held to have been a “direct cause” of the incident. But his bacon was saved by the fact that the two workers, in switching the electricity back on, knew they were creating a dangerous situation anew. This made it sufficiently “unusual”, “unexpected” and not “reasonably foreseeable” for there to be – from the electrician’s point of view – a new “intervening cause” which interrupted the “chain of causation” between his negligence and the electrocution. The claim against him failed accordingly.

Any break in the “chain of causation” may come to your rescue if you are sued. But don’t count on it!

May we use a stylus pen to sign an OTP, if we apply the signature on an electronic tablet?

The Electronic Communications and Transactions Act 25 of 2002 (the ECTA) defines an electronic signature in section 1 thereof as ‘data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.’ Section 13 goes further to state that “Where the signature of a person is required by law and such law does not specify the type of signature, that requirement in relation to a data message is met only if an advanced electronic signature is used. (Advanced signatures are then defined with reference to Section 37 which does not help this present discussion at all). (2) Subject to subsection (I), an electronic signature is not without legal force and effect merely on the grounds that it is in electronic form. The purpose of ECTA is to enable solutions to scenarios where the validity or authenticity of a signature can be achieved, without necessitating in person, the actual signature of a document.

However, ECTA expressly states that it does not apply to sales of immovable property under the Alienation of Land Act of 1981 (ALA).

The ALA again, requires all sale agreements of land to be signed.

The question that now arises regularly is whether a signature with a stylus pen, on an electronic tablet, is acceptable. Or does this amount to an electronic signature? With reference to the definition of an e-signature, you will have noted that we underlined some words in the definition above – data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature.

If you go onto ADOBE for example, type in your name and the computer then asks you to choose one of several pretty fonts to apply a signature which the computer generates, one cannot deny, that this is a “mark” you make using data, which is “intended” to serve as a signature. But where you apply your actual signature to a document using a tablet – this remains your actual signature, doesn’t it?

Several High Court and Appeal Court decisions up until now, have consistently held that a signature for the sale of immovable property, means a “wet ink” signature. This means your hand has to actually hold a pen or pencil to make a signature. Even a thumb print or an “X” can serve as a signature, but can one argue that the application of a “stylus” signature on an electronic tablet, which is then transmitted to a document, is tantamount to a “wet ink” signature?

A signature is nothing more than your “chosen mark”. A tablet signature is after all your actual signature. You just choose to attach it, using electronic means, instead of using actual “wet ink”. There was a decision in the Eastern Cape recently which held that it was acceptable for a signatory to use a mobile phone app, to apply a photo of his actual signature, onto a sale agreement for land. The court was satisfied that if that is how he chose to apply his actual signature, that he was free to do so, given that it was still his actual signature – and not a computer generated, image, “intended to be” his signature. The door therefore appears to have been opened to argue this point, but, because this was a single judge judgment (which was not appealed against to our knowledge) it is not entirely authoritative.

To answer the question – tread lightly for now and stick to wet ink as far as possible until we have more case law on this topic!

Kind Regards

Miltons Matsemela Inc