Divorced? Update your Will in less than 3 Months!

By Jordan Dias, Associate and Katleho Selepe, Candidate Attorney

09 June 2021

Introduction

A Last Will and Testament is a legal document wherein an individual voluntarily sets out the dissolution of their estate, in the instance of their death. In terms of this Last Will and Testament, the Testator/testatrix elects those who stand to inherit upon his/her death.

In terms of South African law, the formalities and administration of wills are regulated by the Wills Act No. 7 of 1953 (“the Act”). In terms of the Act, any person who is above the age of 16 (Sixteen) years, and of sound mind can validly execute a Last Will and Testament; such Last Will and Testament must be witnessed by two competent witnesses.

The Act does not contain any provisions which regulate the effect of marriage on a will. It does, however, regulate the effect of divorce or annulment of a marriage on a will.

Effect of Divorce on Will

Civil marriages, civil unions, customary marriages conducted in terms of the relevant legislation and those religious marriages conducted by registered marriage officers can only be dissolved by an order of the court.

The statutory disqualification, as set out in section 2B of the Act, states that if a Testator/testatrix dies within three months of becoming divorced, and that person executed a will before such divorce, the will shall be implemented as if the Testator’s/testatrix’s previous spouse had died before the date of divorce unless it is clear from the will that the Testator/testatrix intended to benefit their ex-spouse despite the divorce.

Section 2B of the Act thus means that the Testator/testatrix has a “window period” of 3 (Three) months after the divorce within which to revoke, and/or amend his Last Will and Testament, wherein he/she elected his/her ex-spouse as an heir or legatee, to exclude them from inheriting. If this is not done within the 3 (three) month period, then the Testator’s/testatrix’s estate will be divulged in terms of the testament, despite the divorce.

Constitutional Challenge

Section 2B of the Act was challenged on constitutional grounds in J W v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC). The Applicant sought an order declaring Section 2B constitutionally invalid, alleging that it conflicted with Section 25(1) and Section 34 of the Constitution of the Republic of South Africa; the former prohibiting the arbitrary deprivation of property and the latter granting everyone the right to have a dispute decided by a public court or independent tribunal.

In this case, a couple of days prior to their wedding, the deceased concluded a Last Will and Testament in terms of which a portion of her estate would fall to her husband in the event of her death. The marriage, however, was dissolved some 5 (Five) years later, and the deceased committed suicide within 3 (Three) months of the divorce.

In applying Section 2B of the Act, the portion of the deceased’s estate, which she left to her (then) husband in her Last Will and Testament, fell to be dissolved in terms of the laws of Intestate Succession, disinheriting her ex-husband. The court held, per Sher J, that freedom of testation is a fundamental principle in our law, and our courts are bound by a Testator’s/testatrix’s Last Will and Testament, unless the terms of the Last Will and Testament violate constitutional provisions or public policy.

As to the constitutional challenges levelled against section 2B of the Act, the court held that the provision in question protects individuals who are likely too emotional, as a result of a divorce, to attend to the alteration of their wills. Due to the increase in divorces, such protection is necessary for parties who have already dissolved their marriage and agreed to a distribution of their assets. In such cases, it would be unfair to exploit the absence of mind of an individual who was recently divorced by upholding a testamentary bequest by virtue of a relationship which has irretrievably broken down.

Moreover, the limited application of this provision (i.e. 3 months) does not completely disinherit an ex-spouse, as it no longer applies where the Testator/testatrix dies post the “window period”.

In concluding, the court held that the challenged provision conforms to constitutional imperatives and is valid insofar as it is proportional to the means for which it was enacted for and its application is not arbitrary.

Conclusion

Section 2B of the Act only applies where a Testator/testatrix dies within 3 (Three) months of the divorce. Where the Testator/testatrix lives beyond this period and does not alter the Last Will and Testament to reflect his/her new intentions, our law requires the existing will to be given full effect, and the ex-spouse to inherit as envisaged in the will.