One of the last things that might cross your mind when getting divorced is your last will and testament. You might be unaware of the consequences of the actions you do or do not take within the crucial period of three months after ending your marriage. This article will set out the crossroad at which family law and the law of succession might unexpectedly intercept.
Let’s start with the theory
Your will sets out your wishes as to how you would want to divide your estate upon your death. The Wills Act No.7 of 1953 (“the Act”) regulates and sets out the various formalities in respect of wills. One would think marriage and wills are two separate, unconnected concepts – this is however not true in the case of the dissolution of a marriage. This article will set out how your divorce might be affecting your will.
Section 2B of the Act sets out a statutory disqualification – which will be activated whenever the following three requirements are met:
- Firstly, the testator has died within the three-month period of becoming divorced.
- Secondly, the testator has executed a will prior to such divorce
- And thirdly, there is no clear evidence, which can be deduced from the will, that the testator had intended for their ex-spouse to benefit from the will despite the divorce.
Where the above three conditions have been met – the statutory disqualification will be activated and the will, will be executed in such a way as if the testator’s ex-spouse had died prior to divorce – therefore, automatically excluding the ex-spouse from the will.
This statutory disqualification thus gives the testator a mere three months in which to amend his/her will to exclude their ex-spouse.
Let’s put the theory into practice
The following factual scenario is provided to put the theory into perspective. Jack and Jill were madly in love, a few days before they decided to tie the knot, Jack amended his last will and testament, to include Jill as an heir to a portion of his estate upon his death. Unfortunately, a few years later Jill and Jack decided to get a divorce. Within three months of the divorce, Jack died in a car crash.
In applying the requirements set out above in terms of Section 2B of the Act: firstly, the testator (Jack) died within three months of becoming divorced, secondly the testator executed a will prior to such divorce, and lastly it is unclear from the will whether the testator intended for his ex-spouse (Jill) to benefit from the will.
Thus, this scenario meets all the requirements set out in Section 2B and the Act will operate to exclude Jill as an heir.
Has this controversial provision ever been challenged?
In a case with a factual background quite similar to the one set out above, namely W v Williams-Ashman NO and Others, the operation of this section was challenged on constitutional grounds.
In response the constitutional challenges against this section, the court looked at the purpose of this provision and how it aims to protect vulnerable individuals who have just concluded a divorce and are not currently in the right frame of mind to tend to affairs such as amending a will. The court finds it unfair to uphold a testament which has not been amended due to the testator being in an emotional state after divorce.
The court also found this is a reasonable limitation due to the exclusionary provision only operating for a limited period of time, namely 3 months.
It can thus be concluded that to this day, Section 2B still operates where the above three requirements are met. However, where the testator makes his wishes clear in his testament prior to divorce in that he intends to keep his ex-spouse in his will or lives beyond the three months after divorce, the existing will, will be given effect to and the ex-spouse will inherit as set out in the deceased will. It is important to emphasise the fact that this statutory protection given to the testator only operates within the three-month period after the divorce and that the ex-spouse will be entitled to inherit in terms of the will after this period. Therefore, please ensure that your will is updated within three-months of your divorce.
To find out more contact Faure & Faure Inc. we will be happy to assist you in getting your affairs in order.
For more information, contact 021 871 1200 or email firstname.lastname@example.org.