YOUR TOP 10 (LEGAL) NEW YEAR’S RESOLUTIONS FOR 2026
“My New Year’s resolution is to stop procrastinating. I’ll start tomorrow.”
(Anonymous)
Most New Year’s resolutions are vague, unwritten, and destined to be forgotten in the first week of January’s hustle and bustle. But please don’t neglect this Top Ten list of legal issues that we’ve put together for you. Focus on those that are important to you, taking a few minutes to write down exactly what action you’ll take under each heading. Then set and diarise realistic deadlines to address each item:
1. Update (or draft) your will.
Check your executor/s, guardian/s, heirs and beneficiaries. Have there been any life events (marriages, divorces, deaths, births, new relationships, new business ventures, new tax changes, new assets or liabilities or anything else) that call for a change in your will? Should you consider making a foreign will as well as your local one? Update (or consider making) a Living Will/Advance Medical Directive.
2. Revisit your estate planning.
Are you still on track with your wealth building, your retirement planning, your corporate, trust and tax planning? Have you prepared andupdated a file containing your will and all the other information and paperwork that your executors and loved ones will need when the time comes?
3. Check that your property affairs are in order.
Make sure that your title deed is safely filed away together with your original purchase documents and receipts, as well as proof of subsequent capital improvements – you’ll need all of these to calculate your CGT base cost when you come to sell. If you’re a landlord or tenant, are all leases current, in order and easily accessible? If you co-own property, do you have an agreement in place laying out what each joint owner’s rights and duties are, who pays what costs and when, and so on? Does it need updating?
4. If you cohabit with your life partner.
Do you have a full cohabitation agreement in place? Does it need amending or updating? Does it mesh with both of your wills?
5. Review all your contracts:
Personal, employment, suppliers, clients etc. Have there been any changes in the law or in your circumstances that call for renegotiation or amendment? Are all these contracts compliant with any new legal developments?
6. Review all corporate and tax compliance matters.
Are you up to date with CIPC, tax and other returns? Do you need to update your POPIA and PAIA documentation? Compliance is vital.
7. Make sure you have a disaster/continuity plan in place.
This should address risks like cyberattacks, data loss, business disruptors (AI springs to mind), load- shedding, natural disasters, another pandemic – the list is endless.
8. Business and personal insurance.
Are you sufficiently covered? Are any changes needed? It’s amazing how easy it is to forget to remove that premium-guzzling e-bike you sold on Marketplace, or to add your expensive new cell phone. Now’s your chance to correct that.
9. Perform a full cybersecurity audit and health check.
Check password protection, multi-factor authentication and similar safeguards, email and electronic communication security, defence against malware, phishing, ransomware and the like, staff and family awareness training etc. If you have crypto holdings, double check that they are secure.
10. Anything else?
Brainstorm with your family, and with us, everything else that could be important to you.
Step into 2026 secure in the knowledge that all the legal aspects of your life are in order. And remember that we’re always here to help when you need us.
PROPERTY SALES AND SIDE DEALS:
VERBAL AGREEMENTS DON’T CUT IT!
APPLICATION BACKFIRES
“With a verbal agreement you have nothing but air.”
(Author and entrepreneur Robert Ringer)
2026 opens with positive signals for our property market after last year’s encouraging GDP forecasts, a credit-rating upgrade, and a series of interest rate cuts boosting access to bond finance.
All the signs point to a promising year for buyers, sellers, and homeowners. But a recent Supreme Court of Appeal (SCA) judgment is a sharp reminder that getting the legalities wrong, and in particular trying to rely on verbal promises, could mean a very rocky start to your new year. It’s also a reminder that while co-ownership can be a practical way to access and share property,
it must be properly structured. When relationships sour, the fallout – as this case aptly shows – can be severe.
One husband discovered that the hard way, so let’s learn from his mistakes.
“You can’t evict me, I own half the house!”
The central feature of this unhappy tale is unfortunately an all too common one – a personal relationship gone horribly wrong.
A couple married in 2009 and jointly bought a house in 2015. When the husband hit financial trouble in 2017, and creditors threatened to attach his half share, the couple agreed that the wife would buy him out for R1.2 million. A written Deed of Sale was signed, the transfer went through, and she became the registered sole owner. Unsurprisingly, given the purpose of the sale and transfer, she never actually paid him the R1.2 million purchase price.
When the marriage hit the rocks in 2019, she moved out and he stayed on. They divorced but he refused to vacate, arguing that the Deed of Transfer did not reflect their true intention. This, he claimed, was for him to remain a co-owner until it was less risky, after which she would give him back his half share.
The dispute landed in the SCA, where the ex-wife insisted that the intention was always that the property would be hers alone.
The SCA held that ownership is a question of law, not a factual dispute to be resolved by choosing between different versions of a story. The Court found that the ex-wife remained the sole owner, and its reasons for doing so provide a clear checklist of principles that every buyer, seller, and property owner should keep in mind.
What the ex-husband got wrong, and how to get it right.
Let’s discuss the legal principles that sank the ex-husband’s case:
• Don’t rely on a verbal agreement:
Although our law makes most verbal contracts binding, there are exceptions. One is that any agreement to sell, exchange, donate, or transfer land (or a right to claim transfer) must be in writing and signed to be valid. That includes any “side deals” intended to vary the terms of the sale agreement. So, even if the Court had accepted the ex-husband’s version, a verbal promise to give back a half share would have been void and unenforceable
• Make sure your sale agreement is crystal clear:
The Court also found the alleged verbal agreement to be “fatally vague” – a poignant reminder to always record agreements with enough detail to avoid them being struck down as void for vagueness
• A non-variation clause is essential:
Contracts should state that they may not be changed unless the variation is in writing and signed. This is a great way to protect against uncertainty and dispute. The Deed of Sale here contained such a clause, which made the husband’s purported verbal amendment ineffective. There’s a lesson for us all here: never accept verbal assurances or promises from the other party, always insist on them being properly incorporated into the sale agreement in writing
• The value of a “whole agreement” clause:
This clause confirms that the written contract reflects the entire agreement. With it in place, no outside evidence can contradict or add to the document – yet another reason the ex- husband found no joy at the SCA. Make sure that your written sale agreement is comprehensive, with nothing important omitted
• On transfer, “intention to pass ownership” is binding and motivation is irrelevant:
The couple in this case transferred ownership intentionally and deliberately, and their personal motives for doing so were irrelevant. Equally irrelevant was the fact that the wife never actually paid the husband the purchase price – all that counted was the intentional transfer of ownership
Complying with all legal formalities is important whether you are a buyer, a seller or an owner. As always, sign nothing without obtaining legal advice.
ELECTRONIC WILLS AREN’T VALID:
STICK TO PEN AND PAPER
“Let’s choose executors and talk of wills.” (William Shakespeare in Richard II)
You may have read one of the many online articles about an electronic will being validated recently by the High Court.
Don’t be misled into thinking that electronic wills are now valid as a matter of course – they most certainly are not. Unless and until our Wills Act is updated to say otherwise, not leaving a written and signed will complying with all the Act’s formalities exposes your grieving loved ones to the risk of a hard-fought court battle at the worst possible time.
What makes a will valid?
Only a written, signed will complying with all legal formalities will be accepted by the Master of the High Court. If you leave only a non-compliant will, your loved ones will have to ask the High Court to validate it.
What are these formalities?
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You must sign the will on the last page (at the end of the document) in the presence of two witnesses, who must also sign as such.
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If the will consists of more than one page, you must sign every page. Although it is not strictly necessary for your witnesses to sign each page, it is considered good practice for them to do so.
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Your witnesses must be competent, meaning they must be at least fourteen years old and mentally competent.
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None of your heirs or beneficiaries may act as a witness or write any part of the will, as this will disqualify them from inheriting.
ECTA and electronic signatures
The Electronic Communications and Transactions Act (ECTA) says that generally, with only a few exceptions and requirements, electronic signatures and documents are valid and binding. But – and this is critical – it specifically states that they “must not be construed as giving validity to the execution, retention and presentation of a will or codicil [addendum to a will] as defined in the Wills Act.”
In other words, pen and paper are still non- negotiable requirements when it comes to wills.
Which begs the next question. What happens if for some reason your will is found to not comply with these formalities?
What your heirs must prove to overcome non-compliance
Fortunately, the Wills Act does allow our courts to look beyond technical non-compliance so as to give effect to the deceased’s true intentions.
In such cases the heirs will need to prove:
- That the document was drafted or executed by the deceased
- The maker of the document must, naturally, be dead
- The person making it must have intended that document to be his or her will
That’s the law underlying the Court’s decision in this dispute, so let’s see how it all played out in practice.
A bitter fight over two conflicting wills, one written and one electronically signed
The deceased, at the time a Constitutional Court Justice, made a will in 2014. She then made another in 2021.
In both wills, she had named her children, a granddaughter, and her life partner as her heirs and beneficiaries. Critically, in the 2014 will she had left 100% of her Magersfontein property to her life partner. But in the 2021 will she changed that, leaving the property to her children in equal shares.
Perhaps unsurprisingly, the life partner challenged the validity of the 2021 will, and her children and granddaughter in return asked the High Court to instruct the Master of the High Court to accept it as valid.
It became clear that the 2021 will was formally defective in two respects:
1. All three signatures (those of the deceased and her two witnesses) had been appended electronically
2. The deceased’s signature was in the wrong place on the document
Critically, however, the life partner did not dispute the evidence of the two witnesses to the will that the deceased had, after a phone call, emailed them to ask that they append their signatures to the will electronically. He also accepted that the will reflected the deceased’s true intentions and that she had intended it to be her final will.
Finding on this evidence that the deceased had given direct instructions for the drafting of the 2021 will, and that she had indeed accepted that will as her own, the Court instructed the Master of the High Court to accept it as her will.
There’s a very clear lesson for us all here…
Pen and paper rule!
Electronic wills, and electronic signatures on wills, are not automatically valid. The only way to protect your loved ones from all the delay, confusion and cost of a High Court application to get an electronic will condoned is to leave a written, signed will that complies with all the Wills Act’s formalities.
HOW TO FUND YOUR DIVORCE IF YOUR
SPOUSE CAN OUTLITIGATE YOU
“For what is wedlock forced but a hell, An age of discord and continual strife?” (William
Shakespeare in Henry VI Part I)
This article is a balm for anyone unfortunate enough to be stuck in an unhappy marriage full of Shakespeare’s “discord and continual strife”, yet too scared to consider divorce because of the costs. An uncontested divorce in which you agree on everything need not cost much, but it’s a very different story if you know that your spouse will fight you to the bitter end.
The hard reality is that contested divorces can be extremely expensive. But if your emotional trauma is compounded by the fact that your spouse has a lot more money than you and will use that financial strength to intimidate and outlitigate you, don’t despair!
Outgunned? “Equality of Arms” to the rescue Enter stage left the “equality of arms” legal principle, which is aimed at ensuring that the outcome of divorce litigation is based on the merits of the case, not on one side’s financial dominance.
In other words, our law says that you should have a fair and reasonable ability to present your case without being disadvantaged because your spouse has greater financial resources. To achieve that, as the financially weaker spouse you can ask the court to order your spouse to contribute to your costs, allowing you to access proper legal advice, to negotiate fairly, to resist pressure to accept unfavourable settlement terms, and, if necessary, to proceed to trial.
What factors will the court consider?
The court will order only a contribution to costs that is reasonable and necessary considering all the factors relevant to each case, typically:
• The financial resources of both parties
• The level of complexity in the divorce case
• The anticipated expenses for proper legal representation
Bottom line: you’re automatically entitled to a contribution. You must show that you are in genuine need given your own financial situation, that your estimated costs are reasonable in relation to the complexity of the disputes between you, and that your spouse can afford it.
A recent High Court decision provides an excellent example of those principles in action.
A wealthy husband is ordered to pay R1.5 million
The couple in question were married in 2010, out of community of property with the accrual system. They lived, it seems a lavish lifestyle characterised by frequent overseas trips and a taste for opulence until the husband left home in 2020. Battle commenced with the wife issuing a divorce summons a few months later.
Five years on we find them locked in dispute over the true extent of the husband’s wealth, with the wife applying for a R2 million costs contribution to cover both her legal expenses and a forensic investigation into her husband’s financial affairs.
In his Financial Disclosure Form (a standard form completed by parties to a divorce) he had listed net assets of R34 million. But the Court – finding that these disclosures were unreliable, that he had failed to disclose the value of his shareholdings in two companies and of a property in France, and that there are huge sums of money not being disclosed – decided that the wife’s proposed financial investigation was justified.
Having analysed the respective financial positions of the parties and their respective abilities to cover the costs in question, and having decided that the wife could reasonably trim some of her projected expenses, the Court ordered the husband to pay her a contribution of R1.5 million.
Don’t be intimidated by a big war chest
If you are outgunned financially, you may well be entitled to ask for a contribution to your divorce costs in order to level the playing field.
