The effect of divorce on your last will and testament
Why should you review your will when you get divorced?
It is important to update your last will and testament as your life and circumstances change, be it from a divorce or due to other major change in your life. However, the provisions of Section 2B of the Wills Act, No. 7 of 1953, makes it particularly important for divorcees to review the provisions of their will sooner rather than later.
Section 2B of the Wills Act states the following:
“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.”
In short, this statutory provision has the following implications:
If a divorcee dies within three months after getting a decree of divorce, then his former spouse will not be able inherit anything from her/his estate; and
If the divorcee fails to update his will within three months, then the former spouse may still inherit from the estate if the will makes provision for it.
Is the provision reasonable and compliant with the constitution?
Over the years there have a few cases that challenged the validity of this provisions. Our courts have always enforced section 2B of the Wills Act. Recently, in the case of J W v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC), the Western Cape High Court again scrutinised the constitutionality of Section 2B of the Wills Act.
The court found that Section 2B of the Will Act “serves a legitimate and compelling social purpose” and did not declare it unconstitutional.
Does Section 2B of the Wills Act apply to same-sex marriages concluded in terms of the Civil Union Act, No. 17 of 2006?
Section 13(1) of the Civil Union Act of 2006 states that “the legal consequences of a marriage contemplated in the Marriage Act apply, with such changes as may be required by the context to a civil union.” It follows that section 2B of the Wills Act also applies any marriage or civil partnership concluded in terms of the Civil Union Act.
This is confirmed in the J W v Williams-Ashman NO case, where the court states “Similarly, since 2006 a so-called ‘same sex’ marriage or civil partnership which is solemnized as a civil union in terms of the Civil Union Act[58] is subject to the selfsame legal consequences as a civil marriage, and it too is therefore subject to dissolution by way of a divorce in terms of the Divorce Act.”
Conclusion
Section 2B makes it vitally important for spouses getting divorced to update their last will and testament. A failure to do so will result in their estates being distributed in a manner contrary to their wishes.
