Cinderella and the ‘will’ for change: Some suggestions

October 1st, 2023
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We all know the fairy tale of Cinderella, who had to submit to the ill-treatment of her stepmother who had usurped her deceased father’s estate. What we do not know is how the story could have changed had Cinderella received bequeathment. Forgery of wills is a very common occurrence but like many fraud cases it is not reported, nor does it make it to court, rather it is just swept under the carpet.

In countries like South Africa (SA), the majority of cases go unreported due to the lack of knowledge by the affected, extremely high legal costs involved in litigation, and fear of a retaliation from the forger.

Currently, there is no legal requirement in SA that calls for wills to be digitised and registered with a relevant authority in order for the will to be valid, but such can be introduced. Requiring a will to be registered in order to be valid can reduce will-forgery and will create a clear record of the testator’s/testatrix’s wishes that can be easily verified. Should there be a death without a will, the register would be able to verify that such is the case, and no wills can be fraudulently produced after the death.

While this idea may be a move forward, there are some loopholes that can allow fraud to still occur, for example, wills can still be forged and then registered unless there are verification requirements in place. To tighten the loopholes, secure record keeping, background checks on notaries and legal practitioners, and the use of technology need to be implemented. Below, are some suggestions that can create faith in the system:

  • Legislation requiring notarising of wills: In addition to the current requirements for a valid will, calling for wills to be notarised in order to be valid, is a step forward. However, with this requirement comes the need to ensure that notaries are not involved with the process of fraud by certifying a forged will.
  • Legislation requiring stringent record keeping: To overcome the above, the law should call for stringent record keeping procedures that will need to be followed by the relevant authority with which the wills will need to be registered, namely, notaries and legal practitioners, so that it can be easy to spot invalid wills. Maintaining detailed documents and using technology can help with this process.
  • Legislation requiring the use of technology: Blockchain, encryption, and meta-data technologies can be used to secure electronic records of wills and related documents, as well as verifying signatures and other requirements for a valid will. Technology will be the driving force behind this system since it will provide the necessary verification and security that is close to that of a bank. Recommended spot checks and shortcomings can be identified by developers and lawmakers.
  • Provide training and education: Providing training and education to notaries, legal practitioners, and the public can help prevent acts of fraud by highlighting the importance of registering a will to ensure the security of families who are left behind.

To date, this idea has not been fully explored by countries. Making legislation, which states that wills have to be digitised and registered in order to be valid does come with its cons – when you think about countries lacking finance, technology and the general anti-fraud ethos – but that does not mean that such an idea needs to be shelved forever. We are living in the digital era, and it can provide us with so many opportunities to prevent an age-old issue of wills being forged.

If Cinderella’s world had these laws implemented, maybe her fate would have been different. Maybe she would have not married a prince but instead started her own queendom with more advanced laws that keep up with the rapid pace of technology.

Sujata Balaram LLB LLM (UKZN) is the Editor at Afriwise.

This article was first published in De Rebus in 2023 (Oct) DR 3.

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