A Last Will allows an individual to dictate how their estate should be distributed upon their passing. In South Africa, the Wills Act No. 7 of 1953 (the Act) governs the formalities and administration of wills. While this Act does not address the impact of marriage on a will, it does have provisions concerning the effect of divorce on a testator’s will. One critical aspect is the revocation of bequests to a divorced spouse under specific circumstances. This article explores the implications of the Act’s revocation rule, the constitutional challenges it has faced, and the importance of updating one’s will after a divorce to prevent unintended beneficiaries from inheriting.

Analysis:

The effect of a will on death after divorce

Section 2B of the Act states that if a testator dies within three months of becoming divorced and had previously executed a will that included the ex-spouse as a beneficiary, the will is implemented as if the ex-spouse had died before the divorce. This implies that the ex-spouse would not inherit anything as indicated in the original will. However, if the will shows that the testator intended to benefit the ex-spouse despite the divorce, the revocation rule would not apply.

The effect of a spouse surviving after divorce

The provision allows the testator a three-month “window period” after the divorce to revoke or amend the will, excluding the ex-spouse as a beneficiary. This period recognizes that individuals may be emotionally vulnerable after a divorce and may need time to reassess their testamentary intentions. If the testator fails to alter the will within this timeframe, the ex-spouse will inherit as specified in the will.

In the case of J W v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC), the constitutionality of Section 2B was challenged. The argument was based on the contention that the provision conflicted with certain constitutional rights. However, the court upheld the validity of the rule, reasoning that it serves to protect emotionally vulnerable individuals who may not be in the right state of mind to amend their wills immediately after a divorce. The court emphasized that freedom of testation is a vital principle in law, and a testator’s wishes should generally be respected unless they violate constitutional provisions or public policy.

The Wills Act’s revocation rule in cases of divorce highlights the importance of reviewing and updating one’s will after a significant life event like a divorce. The three-month “window period” provides the testator with an opportunity to adjust the will to reflect their new intentions and prevent the ex-spouse from benefiting unintentionally. This rule strikes a balance between protecting individuals during a vulnerable period and upholding the freedom of testation. It is crucial for anyone experiencing a divorce to seek legal advice and promptly revise their will to ensure their estate is distributed according to their current wishes. Failure to do so may result in unintended beneficiaries inheriting from the estate, contrary to the testator’s actual desires.