By Karen McMurray, Wills Product Manager
A Will is a living document that should be updated regularly, as and when your circumstances change. Milestones such as marriage, parenthood, and retirement are often considered the obvious occasions to review your wishes as outlined in your Will. A significant change to consider is divorce. Many believe that divorce automatically revokes their Will, however, this is not the case. In South Africa, there are specific provisions to address how a divorce can affect your Will.
Section 2B of the Wills Act No. 7 of 1953 reads as follows:
"2B. Effect of divorce or annulment of marriage on will -If any person dies within three months after his/her 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/her marriage."
In a nutshell, if you are divorced or getting divorced, be aware that you have a three-month grace period from the date your divorce is finalised, to update your Will. After which, it is assumed you do not wish to update your Will. The estate will be distributed in favour of the substitute heirs named in the Will or in the absence of substitute heirs, will devolve upon the interstate heirs. This is unless it is evident that the deceased specifically intended to benefit the ex-spouse. If a person passes away after the three-month period and did not update their Will, the Act assumes that they had no intention of updating their Will and their ex-spouse will inherit in terms of the Will, regardless of their marital status at date of death.
Let's take a closer look at a real-life scenario:
A made his wife B the sole-beneficiary in his Will. A and B get divorced.
1. If A dies within the 3 months after his divorce is finalised, B (the ex-spouse) will not be entitled to any inheritance except if A clearly stated in his Will that he intended for B to benefit, despite the divorce.
2. If A remarries C and dies a year later without updating his Will, then B (ex-spouse) is still the sole beneficiary of his estate.
In the recent case of J W v Williams-Ashman NO and Others (16108/19) [2020] ZAWCHC
27; 2020 (4) SA 567 (WCC) (28 April 2020), section 2B was challenged on constitutional grounds. In this case, the Applicant's ex-wife committed suicide within three months from date of divorce. Section 2B became applicable wherein the deceased's estate was to devolve upon her intestate heirs, thereby disinheriting the Applicant. Since she had no children, her parents stood to inherit her entire estate.
The Applicant sought an order declaring section 2B to be inconsistent with and/or contrary to section 25(1) and section 34 of the Constitution. The court held that section 2B does not violate sections 25(1) and section 34 of the Constitution and the application was dismissed.
Interestingly, other jurisdictions, including the US, England, New Zealand, and Australia, have laws similar to section 2B that prohibitan ex-spouse from inheriting under the Will of a deceased previous spouse (unless the Will expressly states otherwise). The three-month grace period is, however, quite unique to South African law.
Key take-away
In addition to considering the impact of section 2B when drafting or updating your Will, it is crucial to remember that your maintenance obligations in terms of the divorce order do not cease on your death. Your estate must cover claims made by your ex-spouse, either in a personal capacity or as guardian of the dependant children born of the marriage, or possibly both. Consider whether there will be sufficient liquidity in your estate to meet these claims.
In your Will, provide for a structure that will manage such payments which could be payable for many years after your death. Failure to plan carefully in this regard may not only prejudice the rights of the persons you are liable to maintain in terms of the divorce order, but also the financial security of your other dependents at the time of your death, such as a second spouse and children born of that marriage.
