The effect of divorce on your will

by | May 19, 2020 | Advisory Services

Getting divorced doesn’t automatically rewrite your will. But South African law does give you a three-month grace period to consider your options. Bianca Rebordao, a Wills and Trust Executive in our Johannesburg office, explains the intricacies.

Golden rule

For the longest time, South African divorce attorneys have been known to give their clients one last piece of advice after their divorce has been finalised:

Remember to update your Will within the next three months

Section 2B of the Wills Act provides that where a person has made a Will prior to getting divorced and then passes away within three months of the date of their divorce, the Will made prior to the divorce would regard the now ex-spouse as having predeceased the testator. This means that the now ex-spouse would not be eligible to inherit under the testator’s Will.

Section 2B goes on to say that if, however, it has been three months or more since the date of divorce, and the testator has not updated the Will which they made prior to their divorce, then they are deemed to have specifically intended to benefit their ex-spouse (assuming the spouse is a beneficiary in the Will).

2B or not to be?

A recent court case, J W v Williams-Ashman NO and Others, saw the constitutionality of Section 2B being challenged in the Western Cape High Court. The Applicant and the deceased were married in 2011. In 2015, their marriage subsequently became strained and a final decree of divorce was issued on 24 October 2016. The deceased died on 8 December 2016, one month and fourteen days after their divorce. Prior to their marriage, the deceased had made a Will in which she bequeathed her entire estate to “her husband”.

The executor acted in accordance with the provisions of section 2B which meant that the estate would devolve in accordance with intestate laws. The deceased’s parents stood to inherit her entire estate, which led to the Applicant (her ex-husband) approaching the court to challenge the constitutionality of this. The court held that the test for the constitutionality of section 2B rested on whether it is in proportion to its desired result, rather than the mere rationality of it. This means that the court sought to evaluate the balance between what section 2B provides and what it intends to achieve – as opposed to evaluating it at face level.

As you were

The court drew the conclusion that section 2B “serves a legitimate and compelling social purpose”. It is generally accepted that when spouses get divorced, they do not intend to continue benefiting each other after their divorce. Of course, it is possible for there to be cases where the ex-spouses are civil and friendly and do, in fact, intend on benefiting each other in their Wills. For that reason, section 2B caters for both scenarios by offering a choice.

Choice is a fundamental principle in South African law of succession as South Africa recognises freedom of testation. This means that you are free to bequeath your estate to whomever you wish – with the proviso, of course, that it is legally possible. If a testator chooses not to change their Will within three months of their divorce, they are deemed to have chosen to continue benefiting their ex-spouse. It is therefore easy to draw a conclusion, as the court did, that section 2B is by no means arbitrary or in conflict with the constitution.

The final word

After getting divorced, South African law gives you a generous three-month window in which to consider your options. You would be strongly advised to take advantage of this concession.

As a Will is a legal document with legal consequences, it is always best to seek professional advice on anything relating to your Will, how it affects your estate and how it affects your heirs. Sentinel International is expertly positioned to assist you with all your estate planning needs.