What-is-a-will

Electronic Wills Aren’t Valid: Stick to Pen and Paper

by with No Comment EstatesStories

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, signed will that complies 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 apply to the High Court to have it validated. 

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.

At this juncture, you may be thinking: “But it’s 2026! Aren’t electronic documents and signatures as valid as physical ones?” Nope, unfortunately not when it comes to wills.
 

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 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 2014 will she had left 100% of her Magersfontein property to her life partner. But in 2021, will she change 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!

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Equal parental leave for South Africa’s moms and dads

by with No Comment Labour RelationsStoriesUncategorized

Changes to parental leave law

When it comes to taking time off work to care for a newborn infant (or newly adopted child), Norway and Bulgaria are the best places to live, both in terms of duration and pay. The UK comes next, with other European countries as well as New Zealand and Canada making up the rest of the top 10. The US is known for its miserly parental leave (which does vary considerably from state to state). South Africa’s maternity leave provision is not the most generous, but it ensures mothers are able to take leave during the chaotic early months of a child’s life. Until now, maternity leave in South Africa was 16 weeks. The operative words are “maternity leave”. Fathers, by contrast, were only entitled to 10 days’ leave. If the mother experienced a difficult birth, or there were young siblings, this often meant a father had to return to work just when he was most needed at home. Now, thanks to a constitutional challenge brought by a young South African family, all that has changed.

Unconstitutional

The Constitutional Court has confirmed that parts of the Basic Conditions of Employment Act (BCEA) and Unemployment Insurance Act (UIA) concerning parental leave are unconstitutional. Because the Constitutional Court rules on constitutional matters and does not make laws, Parliament has 36 months to change the legislation. Interim rules have been put in place that apply now. Parents can now share four months plus 10 days of leave between them. If only one parent is employed, that parent can take the full four months. Previously, adoptive parents were only eligible for 10 weeks’ leave and only qualified if the adopted child was under two years old. Adoptive leave is now equivalent to birth parental leave and the age cap has been declared unconstitutional. To protect women’s health and wellbeing, the order states “no female employee who has given birth to a child may work for six weeks after the birth,” mitigating the risk of a controlling partner claiming the full duration of leave and forcing a mother back to work.

Why this matters

Many countries have shifted to shared parental leave. The model of an extended maternity leave and a token paternity leave was based on outdated gender stereotypes that were codified in law. It left many families juggling costs and careers and didn’t give families flexibility in how they organise their domestic affairs and family dynamics. The Court held that this differentiation infringes dignity and equality, marginalising fathers/second parents and treating adoptive parents and parents through surrogacy (commissioning parents) differently without justification. The new interim framework lets families choose how to share early caregiving rather than applying socially constructed assumptions.

What has changed (the interim rules at a glance)

The new framework applies immediately while Parliament drafts the permanent amendments. In summary:

  • Parents collectively have four months plus 10 days of parental leave to share as they choose
  • If parents disagree, the total will be split, giving each parent as close to half the time
  • If only one parent is employed, that parent gets the full four months
  • Following birth, the six-week no-work recovery period for the mother takes precedence before any further sharing
  • The regime caters to biological, adoptive and commissioning (surrogacy) parents in a unified structure
  • The Court did not read interim UIF benefit rules into the law, but the Minister must report to the Court before the 36-month window ends as to whether remedial legislation is in force and, if not, when it will be

What must be done immediately?

HR departments are going to be busy. As almost all employers have some employees of child-bearing age, there is no time to lose in ensuring policies and procedures reflect the new framework. If you are an employer, here is what you must do, as a matter of priority:

  • Update policies and handbooks to reflect the interim framework: one shared pot of four months plus 10 days, split by agreement (or 50-50 if not), with the six-week postpartum period protected. Align your leave request forms and HRIS fields
  • Add a “shared-leave agreement” template
  • Ask relevant employees to record their leave allocation, start dates, and how they’ll handle handover and benefits
  • Train managers on the new framework and stress non-gendered leave entitlement. Supervisors must not talk about “maternity” leave or assume the mother will take the full leave entitlement herself
  • Coordinate UIF messaging. UIF benefits need legislative updates. Explain that policy and payroll leave will track the Court’s interim regime now, while UIF benefits will be clarified as Parliament amends the UIA
  • Refresh adoption/surrogacy policies
  • Change the “under-two” adoption limit in internal policies, but keep phrasing neutral (e.g., “pending Parliament’s amendments, the company aligns with the interim shared-leave regime”)

What should parents do right now?

If you are expecting a baby or planning an addition to your family, you now have more options. It may still suit your family for the mother to take the bulk of the leave, for example, if you are planning to breastfeed your baby (unfortunately, many workplaces are still not conducive to expressing and refrigerating breastmilk). But you now have flexibility in how you arrange your family life. For example, a woman who works from home may choose to return to work sooner, while the father takes some time off to bond with the infant. Issues of infant feeding are less problematic when home is the workplace. But it’s a good idea to plan. Life with a newborn is hectic; it may be harder to make decisions when you are sleep-deprived!

  • Plan – decide how to split the shared leave before the due date
  • Document your plan – file a signed allocation with HR
  • Remember the six-week rule – the birth mother’s recovery is not optional
  • Adoption and surrogacy – the interim regime treats early caregiving in these circumstances similarly