By Kaylen Moodley / Candidate Attorney / Mooney Ford Attorneys

In the intricate tapestry of legal frameworks, few documents carry as much significance and weight as a Last Will and Testament. As inhabitants of a dynamic and ever-evolving society, understanding the nuances of estate planning becomes paramount in ensuring the preservation and distribution of assets in accordance with one’s wishes.

In the South African legal landscape, the concept of a will holds profound importance, serving as a beacon of clarity amidst the complexities of inheritance.

One of the complexities in this regard is the issue of divorce and bequest revocation.

The Wills Act 7 of 1953 comprehensively deals with the formalities and administration of a will.

The Wills Act does not deal with the impact of marriage on a will. It does, however, provide clarity on the issue of divorce and the effect of a divorce on a testator’s will.

THE ISSUE

The issue arises where; the testator draws up a will during the subsistence of his/her marriage. The testator in turn includes his/her spouse as a beneficiary in the will (in effect the testator bequeaths an asset or a portion of his/her estate to his/her spouse). Following this, a divorce takes place and subsequent to the divorce the testator dies and leaves behind an unamended will which still includes the ex-spouse as a beneficiary.

This article focuses on the issue outlined above and it aims to highlight the importance of amending a will preceding a divorce.

ANALYSIS

Section 2B of the Wills Act provides in this regard that;

“If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage”.

Essentially the above provision states that where a testator dies within 3 months of becoming divorced and during the subsistence of his/her marriage executed a will including the ex-spouse as a beneficiary, the will is executed as if the ex-spouse died before the divorce. This is known as the “revocation rule”.

Accordingly, the ex-spouse will not inherit anything from the deceased estate, unless it is made clear through the terms of the will that the testator intended to benefit his/her previous spouse despite the dissolution of the marriage.

Section 2B of the Wills Act gives the testator 3 months, from the date of divorce to revoke or amend his/her will. If the testator does not amend his/her will within the 3-month period, his/her ex-spouse will inherit in terms of the will.

It is important to note that section 2B only applies to situations where the testator dies within 3 months from the date of divorce. Accordingly, if the will is not amended within 3 months (where the testator elects new heirs), it will be deemed that the intention of the testator did not change despite the dissolution of the marriage and he/she intends that the ex-spouse inherits from the will.

The constitutionality of the abovementioned provision was questioned in a case which was taken on appeal. In the case of W v Williams-Ashman N O and Others, the appellant argued that; “the provisions of section 2B deprived him of his right to inherit from his erstwhile spouse in conflict with what her real intention was, just because she died within the three-month period after divorce as envisaged by section 2B”. The appellant argued in this regard that the provision is arbitrary and has no rational basis.

The Supreme Court of Appeal concluded that the provision does in fact have a rational basis/purpose as “it can safely be assumed that divorcees would not want to carry on benefiting their ex-spouses and that the fact that the deceased testatrix did not give any indication in her will that she wanted to continue to benefit her divorced spouse is the only indication of her real intention that can be considered. There are no reasons to deviate from the settled legal principle that the will of a deceased is the ultimate expression of such a deceased’s intention with regard to succession”. The appeal was accordingly dismissed.

In light of the above, it is evident that the importance of amending a will is enunciated by the profound implications of section 2B of the Wills Act.

Photo by Kelly Sikkema on Unsplash