“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 all 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 our advice!

“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?

• 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.
• If there is more than one page to the will, you must sign every page. Although it’s not strictly necessary for your witnesses to also sign all the pages, it’s good practice for them to do so.
• Your witnesses must be “competent”, that is, at least fourteen years old and mentally competent.
• Don’t let any of your heirs or beneficiaries either sign as a witness or write out any part of the will, as that 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.

We’re here to help!

“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 other side of the coin is that it’s not “open season” on your spouse’s wallet. 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. Ask us whether you qualify.

“Codicil”

A codicil (from the Latin codicillus, meaning “a small writing tablet”) is a legal document in which you can make minor changes to your existing will. That said, rewriting your whole will can sometimes be a better option – particularly if the changes are substantial or complex, or if you already have a codicil (multiple codicils can be confusing!).

Remember that it must comply with exactly the same signing and witnessing rules as a will to be valid. And, on a practical level, be sure to attach the codicil to your will as an addendum, and to tell everyone who needs to know about it, especially your executor.