Divorce and your will

A little-known section of the Wills Act can have serious consequences

The High Court of the Western Cape recently heard a case challenging the constitutionality of Section 2B of the Wills Act. The wording of the Act itself is confusing, so we’ll try to explain it in simple terms. If you are going through a divorce, it’s very important you not overlook or neglect to change your will.

What Section 2B says

Section 2B of the Wills Act provides that “if a person dies within three months after they were divorced or their marriage was annulled, any will which they executed prior to such divorce or annulment must be given effect to as if their former spouse had died before such dissolution, unless it appears from the will that they intended their spouse to benefit notwithstanding it.”

Section 2B in plain English

This clause effectively gives divorcing spouses a three-month grace period to change their wills. It acknowledges that in the upheaval of divorce – both emotional and practical, wills may be forgotten. It allows for a calm, considered change of testation post-divorce. If one spouse dies within three months of the official date of divorce, the law acts as if the surviving spouse had in fact died before the divorce. In other words, their entitlement to inherit from the deceased spouse is null and void unless there is clear, unambiguous wording in the will indicating a wish for the other spouse to inherit regardless of any eventual dissolution of the marriage. 

However, if the will is not changed within the three-month grace period, the courts will assume that the intentions in the will are meant to remain valid. After all, some marriages end harmoniously and, for whatever reason, the spouse or spouses still wish the other to inherit some or all of their property. 

JW v Williams-Ashman NO and Others

In the case of JW v Williams-Ashman, the couple (NW and JW) divorced, and NW did indeed die before three months had elapsed. There was nothing in the will explicitly stating that an inheritance to JW would stand regardless of divorce. Therefore JW was not entitled to inherit anything, and because there were no children of the marriage, NW’s parents were the sole heirs. JW challenged this and attempted to prove that Section 2B infringed the Constitution because it “arbitrarily deprived NW of her testamentary right to dispose of her property in accordance with her express wishes and arbitrarily deprived him of his right to receive it.”

We won’t go into detail of the court proceedings (you can read the full case report here), but, in summary, the judge dismissed the case on the grounds that Section 2B serves a legitimate and compelling social purpose and the deprivation it affects is not arbitrary, and there is sufficient reason for it. 

What this means for you

While this case does not change a law that is already in existence, it serves as an important reminder to anyone contemplating or going through divorce. If you already have a will, remember to amend it as part of your divorce process. If you don’t manage before your divorce is granted, you have three months in which to do so. Three months passes quickly, particularly if you have to relocate or make other post-divorce changes in your life, so prioritise your will. 

If you don’t have a will, you will die intestate. In that case, once you are divorced, your spouse will not inherit from you. However, should you pass away before the divorce is finalised, by the laws of intestacy, your estate will be divided amongst your surviving spouse, children, parents or siblings according to a set formula. Pre-divorce, your spouse is still your spouse, regardless of your intention to end the marriage. For this and many other reasons, it is always a good idea to have a will. 

Talk to us about your will today

Whether you are getting married, starting a family, contemplating divorce, or just planning for the future, you should make a will. We are family lawyers with expertise in wills and estate planning and we can help you draft a will that reflects your wishes and looks after your loved ones. We now offer online consultations. Contact Simon on 086 099 5146 or email simon@sdlaw.co.za today, and we’ll call you back to schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

• Three surprising ways divorce can affect your will
• Last will and testament
• Planning for when you’re not around

Video:

Simon Dippenaar

https://www.sdlaw.co.za

Cape Town attorney Simon Dippenaar has a BBusSc LLB degree and Professional Diploma in Legal Practice from the University of Cape Town, and is an admitted attorney of the High Court of South Africa. He is the founder and director of private legal practice, Simon Dippenaar & Associates, with offices in Cape Town and Gauteng representing South African and international clients.

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